JUROR INTERVIEWS
Borroto v.
Garcia, --- So. 3d --- (Fla. 3d DCA September 5, 2012) reversed the
denial of a motion to conduct juror interviews where the defendant showed that
certain jurors prior injuries and litigation history. In a concurring opinion, Judge Emas wrote on the
third prong of De La Rosa v.
Zequeira, 659 So. 2d 239 (Fla.
1995), which states that “[t]he failure to disclose the information was not
attributable to the complaining party’s lack of diligence.”
According to Judge Emas, De La Rosa rejected the
broad proposition that any motion for new trial based upon a juror’s concealment
of litigation history required (in order to satisfy the diligence prong) that
the search be conducted at the conclusion of jury selection rather than at the conclusion
of the trial.
“However, the supreme court did not prohibit a trial
court, in an individual case and in the proper exercise of its discretion, from
imposing a reasonable requirement of conducting a records check at the
conclusion of jury selection.”
Judge Emas suggests that the trial judge may issue a
specific pretrial order in an individual case directing the parties to conduct
such a search. “In light of the extraordinary amount of time, energy and expense that
is often required for the modern civil trial, giving trial judges the discretion
to impose these common-sense procedures, in the appropriate exercise of their
discretion, is not simply reasonable, but laudable.
PROHIBITION /
DISQUALIFICATION OF JUDGE
Phillip Morris v.
Brown, --- So. 3d --- (Fla. 1st DCA September 5, 2012) tells us that it
is not a good idea to compare a witness to
Dr. Josef Mengele, the infamous Nazi war criminal known as the “Angel of
Death.” That is what the trial judge
stated in ruling on the admissibility into evidence of a 1971 videotape of
Philip Morris’ former CEO, Joseph Cullman, in which Cullman suggests that lower
birth weights caused by smoking may actually be desirable to some women who
“might prefer having smaller babies.” The defendant immediately moved to disqualify
the judge. In granting the writ of
prohibition, the appellate court stated that the judge’s statements were so
inflammatory that a party would be placed in reasonable fear of judicial bias.
IMPROPER CLOSING ARGUMENT
Reffaie v.
Wal-Mart Stores, Inc., --- So. 3d --- (Fla. 4th DCA September 5, 2012)
reversed for a new trial on damages, stating:
- Here, appellant correctly argues that there was no evidence to support defense counsel’s argument in closing that law firms transported their clients to Dr. Gomez en mass, or that Dr. Gomez had any “business relationships” with personal injury law firms. At one point, defense counsel even suggested that it was Dr. Gomez who bused the clients “right back up for the purposes of litigation.” We agree that the improper comments at issue were intended to, and did, impugn the doctor’s credibility and objectivity in the eyes of the jurors. While we have little issue with the line of questioning, the problem here is that defense counsel did not obtain the desired answers but continued in closing argument as though he had.
Santiago v. Abramovitz, --- So. 3d --- (Fla. 4th DCA September
5, 2012) reversed the denial of plaintiff’s motion for a new trial on damages
due to the jury’s zero verdict. Here, the defendant stipulated before trial
that his negligence caused the accident and that the plaintiff sustained a permanent
injury because of the accident.
Finnegan v. Deutsche Bank Nat’l Trust Co., --- So. 3d --- (Fla.
4th DCA September 5, 2012) found that there was a genuine issue of material
fact where the defendant’s answer specifically denied that she had received
notice of the default in accordance with the terms of the mortgage. Deutsche
Bank then filed a motion for summary judgment. Its affidavit in support did not
mention the conditions precedent. Defendant filed an affidavit in opposition
again swearing that she had received no notice of default in accordance with the
mortgage provisions. The bank also filed copies of letters allegedly sent to defendant
but these were not sworn and could not be considered on a motion for summary
judgment.
BAD FAITH FAILURE TO SETTLE
Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., --- So.
3d --- (Fla. 4th DCA September 5, 2012) held that obtaining an appraisal award
against the insurer satisfied the insured’s obligation to have the underlying
claim “resolved favorably” under Blanchard
v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291
(Fla. 1991)).
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