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P.A. v. Kim

Florida Court of Appeals, Fourth District

June 21, 2017

CHILDREN'S MEDICAL CENTER, P.A., THEODORE MORRISON, M.D., KENNETH BUDOWSKY, M.D., JACINTA MAGNUS, M.D., and NANCY CHIANG, M.D., Petitioners,
v.
JAKYUNG KIM and YOOCHAN KIM, as parents and next friend of BABY SEAHYUN KIM, a minor, Respondents.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 09-055893 (03).

          Dinah Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Michael A. Petruccelli and Steven A. Osher of Petruccelli & Osher, P.A., Fort Lauderdale, for petitioners.

          Alan Goldfarb and David C. Appleby of Alan Goldfarb, P.A., Miami, for respondents.

          May, J.

         The defendants in a medical malpractice action seek certiorari review of a post-trial order granting juror interviews following a defense verdict. The trial court granted the plaintiffs' motion based on the alleged failure of two jurors to disclose litigation history in their responses to the jury questionnaire. The defendants argue the trial court departed from the essential requirements of the law because the plaintiffs failed to establish the three requirements for granting juror interviews. We agree, grant the petition, and quash the order.

         The plaintiffs filed a medical malpractice action against the defendants, alleging a failure to diagnose their infant son's skull fracture and brain bleed that were allegedly related to his birth. Their child was delivered with the assistance of a vacuum extraction device. Two weeks after his birth, the child experienced a severe brain bleed. The child underwent a craniotomy, but still suffered permanent brain-related and neurological injuries. The plaintiffs alleged the four defendant pediatricians should have diagnosed the child's condition. Following a three-week trial, the jury returned a defense verdict.

         The plaintiffs moved to interview three jurors: L.H., E.T., and the alternate.[1] They alleged L.H. and E.T. failed to disclose their litigation history in responding to the following question on the jury questionnaire.

Have you or any family member ever been sued or have you sued someone else? (This includes suits which were settled after being filed.) If so, please explain.

         Jurors L.H. and E.T. both answered "No" to the question. However, public records searches revealed that two individuals with the same names (or similar marital names) had previous encounters with the legal system. Records revealed that L.H. sought to register a restraining order against her ex-husband in California in 2008. The docket characterized the nature of the case as "domestic violence with children."

         The plaintiffs asserted that the concealment of that information provided grounds to interview L.H. because "[a] salient, if not dispositive issue" in their case was whether the proximate cause of their child's injury was "child abuse or so-called 'non-accidental trauma.'" The plaintiffs claimed the defendants theorized pre-trial that the child's injury was caused by abuse. They cited the defense expert's deposition testimony. They noted the trial court had ruled in limine that the expert could not testify at trial that the child's injuries resulted from a drop or knock on the head.

         Records also revealed that E.T. was the respondent in numerous "domestic violence" actions. The most recent injunction was entered against E.T. in 2001. And a 2015 stalking case had been dismissed.[2]

         The plaintiffs alleged the alternate "may have significant information with respect to discussions amongst the jurors contrary to this court's instructions."

         Plaintiffs' counsel submitted two affidavits, attesting to his public records search, and that the individuals in those records were L.H. and E.T. The affidavits did not state that he would have exercised peremptory strikes on L.H. and E.T. had the information been disclosed.

         The plaintiffs also moved for a new trial, arguing juror misconduct, and the verdict was contrary to the weight of the evidence. The defendants responded that the plaintiffs failed to demonstrate entitlement to juror interviews because the alleged nondisclosures were not material, the information had not been concealed, and plaintiffs' counsel was not diligent in his inquiry during voir dire.

         At the hearing on the motion for juror interviews, plaintiffs' counsel argued he would have used his remaining peremptory challenges on L.H. and E.T. had he known about the jurors' domestic violence cases- assuming the cases involved a child. The defendants argued the prior litigation was too remote in time and it was not ...


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