Juan Torres v. First Transit, Inc. ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15186
________________________
D.C. Docket No. 9:17-cv-81162-BB
JUAN TORRES,
ALEJANDRO TORRES,
Plaintiffs-Appellees,
versus
FIRST TRANSIT, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 20, 2020)
Before NEWSOM and TJOFLAT, Circuit Judges, and PROCTOR*, District Judge.
TJOFLAT, Circuit Judge:
*
The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
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I.
On September 30, 2017, a bus owned by First Transit, Inc. (“First Transit”)
struck a vehicle occupied by Juan Torres and Alejandro Torres (“the Torreses”) at
the intersection of North Military Trail and NW 19th Street in Boca Raton, Florida.
The Torreses were severely injured. Juan Torres suffered fractures to his spine,
right leg, and right ankle; Alejandro Torres suffered fractures to his ribs, right leg,
and sternum. The Torreses brought a claim for damages against First Transit in the
United States District Court for the Southern District of Florida, alleging that the
driver of First Transit’s vehicle was negligent and that First Transit was
responsible for the Torreses’ injuries. First Transit admitted liability, and the
District Court held a three-day jury trial on the issue of the amount of damages
incurred by the Torreses. The jury awarded Alejandro Torres a total of
$2,496,261.13 in damages, and the jury awarded Juan Torres a total of
$4,927,604.38 in damages. 1
First Transit moved for a new trial based on its post-trial discovery of the
litigation histories of two trial jurors, identified as Y.C. and E.S., which were not
disclosed during the jury selection process. Specifically, First Transit discovered
1
Specifically, Alejandro Torres was awarded $396,261.13 in past medical expenses
incurred, $600,000 in past pain and suffering damages, and $1,500,000 in future pain and
suffering damages. Juan Torres was awarded $877,604.38 in past medical expenses, $1,050,000
in past pain and suffering damages, and $3,000,000 in future pain and suffering damages.
2
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that Juror Y.C. had been a defendant in eight civil litigation matters, and Juror E.S.
had been involved in five civil litigation matters. 2 Y.C.’s litigation history
includes multiple suits to collect unpaid credit card debt, two foreclosure actions
on property for which she was a mortgagor, and a lawsuit of undisclosed nature
brought against her by the state of Florida. E.S.’s litigation history includes two
foreclosure actions brought by a condominium association for his failure to pay
assessments, costs, and fees associated with his unit, as well as several suits
brought against him to collect unpaid debts.
The jurors in this case completed two forms prior to trial. The first, a “juror
qualification form,” is part of the District Court’s juror selection plan and was
mailed to prospective jurors alongside their jury summons to help the District
Court determine the prospective jurors’ eligibility to serve. United States District
Court for the Southern District of Florida, Plan For The Random Selection Of
Grand And Petit Jurors (May 5, 2010), available at
https://www.flsd.uscourts.gov/sites/flsd/files/JuryPlan.pdf. All prospective jurors
were required to complete this questionnaire and return it to the clerk of court. See
id. at Section VII, “Drawing of Names from the Master Jury Wheel; Completion of
Juror Summons and Questionnaire Form” (incorporating 28 U.S.C. § 1864(a)).
2
Though the District Court suggested that E.S.’s litigation history included a sixth
matter, a personal bankruptcy, the evidence provided by First Transit does not appear to include
any bankruptcy filings.
3
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Once the venire was summoned pursuant to the District Court’s juror
selection plan, the prospective jurors assigned to District Judge Bloom’s court
completed a second form, Judge Bloom’s “Juror Questionnaire in Civil Cases” (the
“juror questionnaire”), which we have attached to this opinion for ease of
reference. See Attachment 1. Generally speaking, the juror questionnaire covers
subjects like the prospective jurors’ education, employment, and hobbies, as well
as the prospective jurors’ previous experiences in lawsuits and with juries. Id. The
prospective jurors were not aware of the subject matter of this case at the time they
responded to the juror questionnaire, and the questionnaire was completed prior to
the commencement of voir dire. Indeed, the District Court acknowledged before
voir dire began that the parties’ need for background questioning of the jurors was
obviated by the fact that their counsel “ha[d] the benefit of the completed [juror]
questionnaires.”3
First Transit’s motion for a new trial focused on Y.C.’s and E.S.’s responses
to a question on the juror questionnaire and to a question posed on voir dire. On
question 10 of the juror questionnaire, prospective jurors were asked: “If you
and/or a close family member or friend has ever been a party to a lawsuit (i.e., sued
3
Although the juror questionnaire was completed prior to voir dire, a prospective juror’s
answers to the questionnaire are treated as equivalent to answers on voir dire. See, e.g., United
States v. North, 910 F.2d 843, 903–04 (D.C. Cir.) (juror’s concealment of brothers’ prior
criminal convictions on questionnaire treated as “juror withhold[ing] critical information on voir
dire”), opinion withdrawn and superseded in part on other grounds, 920 F.2d 940 (D.C. Cir.
1990).
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someone or been sued by someone) please describe the circumstances.” See
Attachment 1. Despite their litigation histories, Y.C. answered “N/A,” and E.S.
answered “No.” Similarly, during voir dire, the prospective jurors were asked by
the Court: “Is there anyone that has been involved in a civil lawsuit that has shaped
your view either negatively or positively about the legal system that you believe
would have an effect on your ability to serve as a fair and impartial juror?” Again,
neither Juror Y.C. nor Juror E.S. responded affirmatively.
First Transit contends that both jurors’ failure to disclose their litigation
histories in response to these questions was, in both cases, an “affirmative
concealment” suggesting a lack of impartiality. Accordingly, First Transit argues
that it is entitled to a new trial—or, at least, an evidentiary hearing to determine
unresolved questions of fact necessary to decide whether Y.C. and E.S. were
challengeable for cause.
Below, the District Court denied First Transit’s motion for a new trial
without holding an evidentiary hearing to investigate the jurors’ alleged
misconduct. The Court first assumed that Y.C.’s and E.S.’s pre-voir dire juror
questionnaire responses were dishonest. The Court found, however, that the
jurors’ silence during voir dire questioning “could only be speculated to be
dishonest” because of the question’s qualifier—it asked only about litigation
history that “shaped [the juror’s] view . . . about the legal system.” As a result, the
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District Court declined to assume that the jurors’ failure to respond was dishonest
because, without an evidentiary hearing, it could not know the jurors’ views of the
legal system.
Next, the District Court held that First Transit had not shown that either
juror, had they answered the questionnaire honestly, would have been
challengeable for cause based on an inability or unwillingness to be impartial.
This conclusion primarily turned on the Court’s finding that Y.C.’s and E.S.’s
previous litigation history had “little to no connection [to] the present case.” The
District Court reasoned that “[a]n individual’s history of having been sued by
corporations bears only a very general connection to a case in which an unrelated
corporation is a defendant,” and that there is otherwise little in common between a
personal injury case like the Torreses’ and “a lawsuit by a bank to recover a debt, a
foreclosure, a lawsuit by a condominium association to recover unpaid
assessments, or a personal bankruptcy”—the sorts of cases in which Y.C. and E.S.
had been involved.
In addition, the District Court found that the jurors’ misstatements contained
no indication of bias against First Transit. In response to First Transit’s suggestion
that the jurors may have been biased in favor of the Torreses, the Court stated that
there was “no evidence that [either juror] had a motive to intentionally omit from
their jury questionnaire that they had been defendants in lawsuits for recovery of
6
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debts so that they could serve on a jury to award Plaintiffs the full amount of their
medical bills, particularly given that jurors completed the questionnaires before
they were made aware of this potential issue.” The Court further noted that both
Y.C. and E.S. indicated during voir dire that they “were willing and able to be fair
and impartial in this case.” Ultimately, the District Court determined that it was
not “required to hold an evidentiary hearing to investigate the issue [of the jurors’
misconduct] further,” thus ruling that, as a matter of law, First Transit had failed to
make a case that either juror was unwilling or unable to be impartial.
First Transit appealed. 4 After reviewing the record and with the benefit of
oral argument, we vacate the District Court’s order denying First Transit’s motion
for a new trial and remand for an evidentiary hearing on the question of Y.C.’s and
E.S.’s impartiality.
II.
We review a district court’s decision whether to grant a new trial or an
evidentiary hearing for abuse of discretion. United States v. Quilca–Carpio, 118
F.3d 719, 722 (11th Cir. 1997). “A district court abuses its discretion if it applies
4
As an alternative basis for relief, First Transit also requests remittitur, or a new trial, on
the theory that the jury’s verdict was excessive and was not supported by the evidence. The
District Court denied relief on this ground, finding that the amount of the verdict was supported
by the evidence and was not excessive. Because we are remanding this case to the District Court
for an evidentiary hearing to determine whether the jury was impartial in reaching its verdict and
to decide whether a new trial is warranted on that ground, we do not reach First Transit’s
excessive-verdict arguments.
7
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an incorrect legal standard, applies the law in an unreasonable or incorrect manner,
follows improper procedures in making a determination, or makes findings of fact
that are clearly erroneous.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1173
(11th Cir. 2010) (quoting Citizens for Police Accountability Political Comm. v.
Browning, 572 F.3d 1213, 1216–17 (11th Cir. 2009)). A “clear error in judgment”
is also an abuse of discretion. United States v. Brown, 415 F.3d 1257, 1266 (11th
Cir. 2005).
III.
Our legal system provides litigants the right to a “fair trial,” and a
“touchstone” of that right is “an impartial trier of fact—a jury capable and willing
to decide the case solely on the evidence before it.” McDonough Power Equip. v.
Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 849 (1984) (internal quotation
marks omitted). The voir dire process, and the attendant right of the parties to
challenge for cause the inclusion of potential jurors on the jury panel, safeguard
that right by seeking to prevent jurors who are incapable of impartiality from
deciding the case. Id. “The necessity of truthful answers by prospective jurors” is
“obvious”: These safeguards cannot function effectively when a later-empaneled
juror commits misconduct by failing to honestly answer questions posed on voir
dire. Id. If the juror’s deceit is not discovered until after a verdict has been
rendered, the fundamental fairness of the entire trial is in question.
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To obtain a new trial for juror misconduct that occurred during the jury
selection process, a party must make two showings: (1) “that a juror failed to
answer honestly a material question on voir dire,” and (2) “that a correct response
would have provided a valid basis for a challenge for cause.” United States v.
Carpa, 271 F.3d 962, 967 (11th Cir. 2001) (citing McDonough, 464 U.S. at 556,
104 S. Ct. at 850). McDonough’s first prong “requires a determination of whether
the juror’s answers were honest.” BankAtlantic v. Blythe Eastman Paine Webber,
Inc., 955 F.2d 1467, 1473 (11th Cir. 1992). Then, to satisfy the second prong,
there must be a showing of “actual bias,” which may be shown “either by express
admission or by proof of specific facts showing such a close connection to the
circumstances at hand that bias must be presumed.” Carpa, 271 F.3d at 967. Put
simply, if a juror’s failure to answer a question honestly suggests that the juror
could not have impartially evaluated the evidence at trial and applied it to the law
as instructed by the trial judge, then the fairness of the trial has been impugned,
and the moving party is entitled to a new trial. See McDonough, 464 U.S. at 556,
104 S. Ct. at 850.
When allegations of juror misconduct surface after trial, the investigation of
the alleged misconduct “is committed to the discretion of the district court and is
reviewed only for an abuse of that discretion.” United States v. Prosperi, 201 F.3d
1335, 1340 (11th Cir. 2000). There is no per se rule that requires a district court to
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investigate all claims of juror misconduct, United States v. Cuthel, 903 F.2d 1381,
1382–83 (11th Cir. 1990), and a district court has the discretion to decide a motion
for a new trial without conducting an evidentiary hearing to investigate, see United
States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997). Indeed, we have stated that an
evidentiary hearing is not required if “the record contain[s] all the evidence needed
to dispose of each of the grounds asserted as a basis for a new trial.” United
States v. Scrushy, 721 F.3d 1288, 1305 n.30 (11th Cir. 2013).
But a district court must investigate juror misconduct when the party
alleging misconduct makes an “adequate showing” of evidence to “overcome the
presumption of jury impartiality.” Cuthel, 903 F.2d at 1383 (citations omitted). 5
Once the duty to investigate is triggered, the district court has “substantial
discretion in choosing the investigative procedure to be used in checking for juror
misconduct.” United States v. Register, 182 F.3d 820, 840 (11th Cir. 1999)
(quotation marks omitted). To justify a post-trial evidentiary hearing involving
jurors’ misconduct, a moving party must show “clear, strong, substantial and
5
Our presumption of impartiality hinges on the honesty of prospective jurors on voir
dire. See, e.g., McDonough, 464 U.S. at 554, 104 S. Ct. at 849 (discussing the “necessity of
truthful answers by prospective jurors”); id. at 464 U.S. at 556, 104 S. Ct. at 850 (Blackmun, J.,
concurring) (“[T]he honesty or dishonesty of a juror’s response [on voir dire] is the best initial
indicator of whether the juror in fact was impartial.”). Jurors “t[ake] their oath” to be honest, and
“absent evidence to the contrary, we must presume that they [a]re fair and impartial, as indeed
they sw[ear] to be.” United States v. Khoury, 901 F.2d 948, 955 (11th Cir.), opinion modified on
denial of reh’g, 910 F.2d 713 (11th Cir. 1990). Of course, when prospective jurors are dishonest,
the voir dire process simply fails to “serve its purpose.” McDonough, 464 U.S. at 554, 104 S.
Ct. at 849.
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incontrovertible evidence that a specific, nonspeculative impropriety has
occurred.” Cuthel, 903 F.2d at 1383 (quotation marks and alterations omitted).
“The more speculative or unsubstantiated the allegation of misconduct, the less the
burden to investigate.” Id. (quotation marks omitted).
A few cases outline the contours of a district court’s discretion to investigate
(or not to investigate) a juror’s dishonesty on voir dire. In United States v. Carpa,
criminal defendants moved for a mistrial based on a juror’s failure to fully disclose
his criminal history during voir dire. 271 F.3d at 963–65. The defendants argued
that this omission was deliberate and was based on the juror’s improper motivation
to serve on the jury in order to earn a reduction of his unrelated criminal sentence.
See id. at 967–68. The District Court asked the FBI to investigate the juror, his
dishonest statements, and his criminal history; the Court then held a hearing at
which the investigating agent testified. Id. at 965–66. After the agent testified to
the juror’s “criminal record and motive” based on interviews with the juror and his
probation officer, the District Court determined that the hearing established no
basis for a mistrial because there was insufficient evidence that the juror lacked
impartiality. Id. at 966.
On appeal, we held that the District Court’s finding was an abuse of
discretion. Id. at 967–68. Even though the District Court held an evidentiary
hearing, it relied only on the testimony of the investigating agent and did not
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receive the testimony of the allegedly partial juror. Id. We found that the District
Court’s investigative methods left unresolved “significant, appeal-determinative”
questions of dishonesty and bias, particularly because the District Court and
defense counsel did not have a chance to participate in the investigating agent’s
interview of the juror. Id. at 967–68. Accordingly, we remanded the case with
instructions to conduct a proper investigation, which included “cross-examination
of the juror by defense counsel” and “questioning of the [allegedly partial] juror in
camera if necessary.” Id. at 968.
Similarly, in Vezina v. Theriot Marine Service, personal-injury plaintiff
Allen Vezina, a seaman who was injured while mopping a slippery galley deck,
filed a motion for a new trial and for an evidentiary hearing concerning the alleged
misconduct of a juror. 554 F.2d 654 (5th Cir. 1977).6 In the District Court, Vezina
argued that he was prejudiced by the presence of “Mrs. Lowery” on the jury
because she failed to disclose on voir dire that she and her husband had a $500,000
personal injury suit pending against them. Id. at 655. For example, the trial judge
asked on voir dire: “Have any of you or any members of your immediate family
within the last ten or fifteen years sustained any injuries or damages growing out of
an accident which might have resulted in a claim against some other person,
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the creation of the Eleventh Circuit on September 30, 1981.
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insurance company, partnership or corporation.” Id. at 656 n.3. The jury panel
understood this question to relate to both plaintiff and defendant participation in
personal injury cases, and other jurors disclosed their involvement as both
plaintiffs and defendants in past cases. Id. Mrs. Lowery, however, did not disclose
the pending personal injury suit in response to the District Court’s question, and
her nondisclosure was only discovered when one of the alternate jurors relayed the
information to Vezina’s counsel after trial. Id. at 655. Vezina moved for a new
trial based on this information. Id. The parties did not dispute that Mrs. Lowery
and her husband were defendants in the personal injury suit, and it was revealed
that Mrs. Lowery actually disclosed this information on voir dire for jury selection
in another case on the same day. Id. at 655–56. Despite Mrs. Lowery’s apparent
dishonesty, the District Court denied Vezina’s motion for a new trial without
conducting an evidentiary hearing. Id. at 656.
On Vezina’s appeal, the Fifth Circuit stated that it was “clear” that Mrs.
Lowery “failed . . . to disclose the pending litigation against her and her husband,
despite general questioning on voir dire by the trial judge and counsel,” and the
Court commented on the “gravity” of Mrs. Lowery’s nondisclosure. Id. at 655–56.
Consequently, the Court remanded the case to the district court for an evidentiary
hearing to resolve the “issues of alleged juror misconduct and the possible
prejudicial effect thereof.” Id. at 656.
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And United States v. Venske is informative. 296 F.3d 1284 (11th Cir. 2002).
In Venske, defendants William and Chantal—who were convicted of various
offenses related to a fraudulent telemarketing scheme—appealed the District
Court’s denial of their motions for a new trial and for an evidentiary hearing based
on alleged juror misconduct. Id. at 1286. 7 Following their trial and sentencing, the
defendants filed two affidavits from private investigators alleging juror misconduct
and extrinsic influence on jurors. Id. at 1287–88. After considering the motions
and the supporting affidavits, the District Court found that William and Chantal
failed to offer sufficient evidence in support of their motions, declined to hold an
evidentiary hearing, and denied William’s and Chantal’s motions for a new trial.
Id. at 1289.
We held on appeal that the first of William’s and Chantal’s affidavits, the
“Porter Affidavit,” failed to demonstrate that the juror at issue was influenced by
the statements described in the affidavit, and thus the District Court did not abuse
its discretion in concluding that the Porter Affidavit was insufficient evidence of
juror misconduct or extrinsic influence on the jury. Id. at 1290. By contrast, the
second affidavit, referred to as the “Roberts Affidavit,” “clearly involve[d]
extrinsic communications that, if properly presented to the district court,
7
The District Court did grant evidentiary hearings to two other defendants, Venske and
Higgins, who had also filed motions for a new trial. Venske, 296 F.3d at 1288–89.
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necessitate[d] further inquiry.” Id. at 1291. But because the Roberts Affidavit was
obtained in violation of a local rule prohibiting attorneys or litigants from
contacting jurors absent prior court approval, we concluded that the District Court
was right to exclude the Roberts Affidavit, and we affirmed its denial of William’s
and Chantal’s motions for a new trial and for an evidentiary hearing. Id. at 1292.
We reasoned that, without the Roberts Affidavit, William and Chantal were not
entitled to an evidentiary hearing because they “failed to make an adequate
showing of juror misconduct or extrinsic influence on the jury.” Id. But had the
Roberts Affidavit been admissible, an evidentiary hearing would have been
necessary to investigate whether the jury was impartial. Id. at 1291.
We read these cases together to say that when a party moving for a new trial
based on a juror’s nondisclosure during voir dire makes a prima facie showing that
the juror may not have been impartial and thus was plausibly challengeable for
cause—in other words, when the moving party has presented “clear, strong,
substantial and incontrovertible evidence that a specific, nonspeculative
impropriety has occurred”—the district court must hold an evidentiary hearing
prior to ruling on the motion for a new trial in order to adequately investigate the
alleged juror misconduct. See Cuthel, 903 F.2d at 1383.
Here, First Transit presented the District Court with “clear, strong,
substantial, and incontrovertible evidence that a specific, nonspeculative
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impropriety” occurred—namely, court documents that, on their face, showed that
Jurors Y.C. and E.S. gave dishonest and misleading responses on their juror
questionnaires and on voir dire. On the pre-voir dire jury questionnaire, for
example, neither Juror Y.C. nor Juror E.S. responded affirmatively to the following
question: “If you and/or a close family member or friend has ever been a party to a
lawsuit (i.e., sued someone or been sued by someone) please describe the
circumstances.” So, to show why these answers were dishonest, First Transit
provided the District Court with court documents demonstrating that “Juror YC
had been sued three times by banks to recover debts, twice in foreclosure, and once
by the State of Florida” and that “Juror ES was involved in one foreclosure, one
action by a condominium association to recover unpaid assessments, three cases
involving debt collection, and a personal bankruptcy.” These documents were
prima facie evidence “that a specific, nonspeculative impropriety” occurred, and
thus an evidentiary hearing to investigate the jurors’ responses was required.
But the District Court declined to hold an evidentiary hearing on the issue; it
simply concluded as a matter of law, based merely on the fact of the false
statements themselves and the lawyers’ representations about their import, that in
no case could the jurors’ misrepresentations suggest a lack of impartiality. By
failing to hold an evidentiary hearing on Jurors Y.C.’s and E.S.’s alleged
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misconduct before ruling on the new trial motion, the District Court abused its
discretion.
To understand why we reach this conclusion, it is necessary to examine the
specific missteps the District Court made. First, consider the issue of the jurors’
“dishonesty,” the first McDonough prong. On this prong, the District Court began
its analysis with Y.C.’s and E.S.’s answers to the jury questionnaire. Question 10
of the jury questionnaire stated: “If you and/or a close family member or friend has
ever been a party to a lawsuit (i.e., sued someone or been sued by someone) please
describe the circumstances.” The Torreses argued that this question was
ambiguous because “a party to a lawsuit” was defined as having “sued someone or
been sued by someone”—in other words, the question could be read to encompass
litigation involving only individuals, not corporations. Since the lawsuits in which
Y.C. and E.S. were involved were initiated by corporations or government entities,
not individuals, the Torreses claimed that the jurors may have believed that they
had not been sued by “someone,” but rather “something.”
The District Court found that the record evidence “certainly support[ed] the
Plaintiffs’ argument,” and thus it would have been reasonable to infer that Y.C.’s
and E.S.’s answers were honest. Nevertheless, the District Court simply
“assume[d] that the Jurors’ answers on the juror questionnaire were dishonest” for
the purposes of its analysis. This assumption was unnecessary and could have
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been entirely avoided—and any ambiguities could have been resolved—by holding
an evidentiary hearing in which the jurors themselves explained what they believed
the question meant.
Perplexingly, immediately after assuming that Y.C.’s and E.S.’s answers to
the juror questionnaire were dishonest, the District Court declined to infer that
Y.C.’s and E.S.’s answers to the questions posed on voir dire were dishonest.
Instead, the Court summarily concluded that involvement “in prior litigation does
not necessarily shape one’s view about the legal system,” and even if it did, “it
certainly does not necessarily follow that the juror believes that it has affected his
or her ability to serve as a fair and impartial juror.” But the fact that Jurors Y.C.’s
and E.S.’s views were “not necessarily” shaped by prior litigation, or that Y.C. and
E.S. were “not necessarily” rendered partial, nevertheless leaves open the
possibility that their views were shaped by prior litigation and that they were
rendered partial. Again, it is precisely these uncertainties that an evidentiary
hearing would resolve.
Second, consider the District Court’s approach to the jurors’ “actual bias,”
the second McDonough prong. On that prong, the District Court found no “close
connection” “[o]n the surface” between “this personal injury case stemming from a
car accident and any of the prior cases in which Juror YC or Juror ES was a party.”
The Court went on to conclude that there was “no evidence that Jurors YC or ES
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had a motive to intentionally omit” their litigation histories from the jury
questionnaire. But without an evidentiary hearing to dig beneath “the surface,” the
District Court simply could not know the jurors’ motives for failing to disclose
their litigation histories, the precise nature of the jurors’ prior cases, or whether the
jurors’ experiences in those cases left them so biased against the legal system that
they were unable (or unwilling) to impartially consider the evidence at trial.
Indeed, it is difficult to understand how First Transit could present any evidence of
the jurors’ motives for nondisclosure without first questioning the jurors at an
evidentiary hearing.8
Take, for example, First Transit’s argument that Y.C. and E.S.—who had
been sued on numerous occasions by large financial entities, the State of Florida,
and condominium complexes—were more likely to sympathize with the Torreses
given the trial’s “‘David versus Goliath’ atmosphere.” The District Court
considered First Transit’s argument but rejected it out of hand:
[T]he Court is not persuaded by Defendant’s attempt to link the present
case and the cases in Juror YC’s and Juror ES’s past as involving a
“David versus Goliath” atmosphere, causing the jurors to be biased
against corporations. The Court finds little reason to presume that an
8
The District Court’s decision not to probe allegations of juror misconduct is of
particular importance because of the ethical restrictions governing attorney communication with
jurors. While a party’s counsel may communicate with a juror after a case has concluded “to
determine whether the verdict may be subject to legal challenge” if counsel “has reason to
believe that grounds for such challenge may exist,” R. Regulating Fla. Bar 4-3.5(d)(4), counsel
may only do so with “leave of Court granted for good cause shown,” and the court may “limit
the time, place, and circumstances under which the interviews may be conducted.” S.D. Fla.
L.R. 11.1(e).
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individual who had been sued by a bank to recover unpaid credit card
bills, for example, would be biased against an unrelated corporation
such as First Transit. An individual’s history of having been sued by
corporations bears only a very general connection to a case in which an
unrelated corporation is a defendant.
We first note that the jurors’ past lawsuits did not involve only “corporations”—
Juror Y.C. had been sued by the State of Florida, and Juror E.S. was subject to a
federal tax lien in which the IRS was the creditor. And, in any event, rather than
giving First Transit the opportunity to question Jurors Y.C. and E.S. to suss out any
possible biases against large corporations or other “Goliaths,” the District Court
simply assumed that Y.C.’s and E.S.’s previous lawsuits could not have, under any
circumstances, rendered the jurors biased against the legal system.
The District Court rationalized this assumption by noting that it questioned
all of the potential jurors on voir dire regarding (1) whether anyone felt that they
could not serve as a fair and impartial juror, (2) whether there was anyone that
could not follow the law after hearing what the burden of proof was in the case,
and (3) whether there was anyone that had “a belief, a feeling, or an attitude about
corporation[s], either for them or against them, that might cause [the juror] to treat
a corporation differently from an individual.” Since neither Y.C. nor E.S
responded affirmatively to any of these questions, the Court reasoned that the
jurors must have been “willing and able to be fair and impartial in this case.” But
it belies reality to assume that Y.C. and E.S. must have responded to the District
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Court’s questions honestly when the Court was simultaneously confronted with
evidence that, on its face, demonstrated that the jurors were dishonest on their juror
questionnaires. In fact, this Court has stated that a “juror’s dishonesty is a strong
indication of bias,” Carpa, 271 F.3d at 967, so Y.C.’s and E.S.’s dishonesty on the
juror questionnaires militates strongly against the District Court’s assumption that
the jurors were unbiased.
Moreover, the District Court’s view of what constitutes a “close connection”
between Jurors Y.C.’s and E.S’s past cases and the present case is too narrow. In
finding that First Transit “failed to demonstrate bias,” the District Court stated that
First Transit did not present “specific facts showing such a close connection to the
litigation at hand that bias must be presumed.” To reinforce this conclusion, the
Court pointed to factual dissimilarities between “this personal injury case
stemming from a car accident and any of the prior cases in which Juror YC or
Juror ES was a party.” But despite these factual dissimilarities, it is entirely
possible that an evidentiary hearing would have revealed that Y.C.’s and E.S.’s
extensive experiences with civil litigation were sufficiently “close connections” to
the legal system that bias against the system itself—in other words, that the two
jurors were unable or unwilling to impartially consider the evidence at trial—could
be “presumed.” Id.
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We therefore conclude that the District Court’s failure to conduct an
evidentiary hearing constituted an abuse of discretion. The District Court needed
to take some action to “establish a sufficient evidentiary record either to determine
whether [the jurors were] honest and unprejudiced or to allow us to review the
determination,” but it did not. Carpa, 271 F.3d at 967. There is no way, based on
the bare record before us, that we could conduct a meaningful review of whether
the Court’s conclusions were correct. Accordingly, we vacate the District Court’s
order denying First Transit’s motion for a new trial and remand with instructions to
conduct an evidentiary hearing to determine whether the jurors made dishonest
statements during voir dire where a truthful response “would have provided a valid
basis for a challenge for cause.” McDonough, 464 U.S. at 556, 104 S. Ct. at 850.
We expect that the evidentiary hearing will address all facts relevant to
whether Jurors Y.C. and E.S. could have impartially considered the evidence
presented at trial and applied the law in accordance with the District Court’s
instructions. The District Court will need to determine (1) whether the jurors’
responses were dishonest as alleged, including both (a) their responses to the
questionnaire and (b) their silence in response to certain questions on voir dire; and
if so, (2) whether an honest response to the aforementioned questions would have
provided a basis to disqualify that juror from service, or whether the dishonest
response bears such a “close connection to the circumstances at hand” that the
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juror’s eligibility for disqualification must be presumed. United States v. Perkins,
748 F.2d 1519, 1532 (11th Cir. 1984) (internal quotations omitted). We emphasize
that “[a] juror’s dishonesty is a strong indication of bias,” which would be
disqualifying, Carpa, 271 F.3d at 967, and that it is important to consider “the
specific information . . . concealed” in determining whether disqualification would
have been warranted, Perkins, 748 F.2d at 1532. And we note that bias can be
inferred in “situations in which the circumstances point so sharply to bias in a
particular juror that even his own denials must be discounted in ruling on a
challenge for cause.” Perkins, 748 F.2d at 1532 n.14 (quoting United States v.
Nell, 526 F.2d 1223, 1229 n.8 (5th Cir. 1976)).
The evidentiary hearing should include in-depth questioning of both Juror
Y.C. and Juror E.S. about the prior litigation in which each was involved. At a
minimum, the questioning should cover the facts of those prior cases; the identities
of the lawyers, parties, and judges; the jurors’ perceptions of the prior cases and of
the legal system as a whole; and the outcomes of the prior cases—that is, whether
the jurors prevailed or lost. The Court will need to determine whether the jurors
harbor any biases—including those against the legal system itself—that would cast
doubt on their fundamental ability to properly weigh the evidence and would
ultimately render them partial. We expect that the result of the District Court’s
hearing on remand will be a full elucidation of these factual issues.
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When the evidentiary hearing has concluded, the District Court shall
determine whether a new trial is warranted on the ground that either of the two
jurors was challengeable for cause.
IV.
For the foregoing reasons, we vacate the District Court’s order denying First
Transit’s motion for a new trial and remand this matter with instructions that the
District Court conduct an evidentiary hearing in conformance with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS.
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U. S. DISTRICT JUDGE BETH BLOOM
Juror Questionnaire in Civil Cases
Please answer fully all of the following questions:
1. What are your name and date of birth? ______________________;
_____________________
2. Please describe your current employment, and past work history.
______________________________________________________________________________
___
___________________________________________________________________________
3. What is your educational background (i.e., grade school, high school, college, etc.).
______________________________________________________________________________
4. Please describe your spouse or partner=s current and past occupation and describe his/her
educational background.
______________________________________________________________________________
___
___________________________________________________________________________
5. If you have any adult children, describe their level of schooling and/or employment.
______________________________________________________________________________
6. Have you served in the military? If so, please describe such service.
______________________________________________________________________________
7. Have you ever served on a jury before? If so, state how many times; the type of case; whether
the trial was in state or federal court; if you reached a verdict and if you were the foreperson.
______________________________________________________________________________
______________________________________________________________________________
8. Would you briefly describe any personal hobbies and/or interests you have?
______________________________________________________________________________
9. What newspapers and/or magazines do you read regularly? Also, what are your favorite T.V.
shows and/or websites?
______________________________________________________________________________
10. If you and/or a close family member or friend has ever been a party to a lawsuit (i.e., sued
someone or been sued by someone) please describe the circumstances.
______________________________________________________________________________
_
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11. Do you participate in any organizations or groups (community, social, civil, union, religious,
political)? _________ If yes, please state the name of the group and if you hold a leadership
position.
___________________________________________________________________________
______ ___
12. Is there anything in your background or personal feelings which might affect your ability to be
fair and impartial to both sides?
______________________________________________________________________________
___
______________________________________________________________________________
___
______________________________________________________________________________
___
26