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Taylor v. Magana10/5/2005
tributable to counsel's lack of diligence.
It should be kept in mind that the questionnaire was handed out by the trial judge and the information obtained pursuant to the voir dire questionnaire was elicited directly by the trial judge herself. It is difficult to understand what is ambiguous about juror Hill's response. The trial judge determined that the juror's name was John Hill, that he was an employee of Winn Dixie and although it is unclear whether juror Hill is married or single, his answers to the remaining questions on the questionnaire were no. It is these remaining questions which are crucial to a determination of whether Hill could be a fair and impartial juror. It is unreasonable to conclude that if the answer to all of the remaining questions is no, that juror Hill had never served on a jury, nor had any member of his immediate family ever been a party to a lawsuit, neither he nor any member of his immediate family had ever been a plaintiff nor a defendant in a lawsuit, neither he nor any member of his immediate family had ever made a claim for personal injuries nor had a claim of personal injuries been made against them, that Taylor's counsel had reason to inquire further into these areas.
What additional questions would Taylor's counsel have asked Hill about his litigation experience? Had Hill indicated some lack of understanding as to what was meant by the questions or expressed some uncertainty as to his answers concerning any prior litigation or personal injury claims then it would have been incumbent upon Taylor's counsel to inquire further and exercise the due diligence required by De La Rosa. The question posed by the trial judge was "Excuse me, everything else is no," and Hill's answer was "yes."
If we were to accept the trial judge's rationale, then a preprinted jury questionnaire which a trial judge uses to conduct the initial portions of the jury selection process would be useless and a total waste of judicial effort unless the trial judge requires each prospective juror to answer each question specifically, line by line, to eliminate any possibility of ambiguity. Additionally, no trial lawyer could run the risk of failing to re-ask each and every question on the preprinted questionnaire for fear of failing to exercise due diligence.
The instant case is remarkably similar to the Third District Court of Appeal's decision in Bernal v. Lipp, 580 So. 2d 315 (Fla. 3d DCA 1991). The Bernal case also involved a medical negligence case in which a member of the jury failed to reveal in response to questions about prior litigation that he had been a defendant in a personal injury case. Bernal, 580 So. 2d at 316. As in the instant case, the jury returned a defense verdict. Through the course of the post-trial jury interview, it was learned that juror Alberto Parejo had been a defendant in an automobile accident case approximately one year prior to being called for jury duty. Parejo explained that his case had been a minor automobile accident which was covered by insurance and that it had been settled by the insurance company. He further explained that he did not interpret either the written questionnaire or the oral questions as calling for an affirmative answer, given the minor nature of the prior litigation. The trial court believed the juror's explanation was truthful and that the juror had not intentionally withheld information during voir dire. As a result, the trial court denied the motion for new trial. Id.
During the voir dire examination by plaintiff's counsel in Bernal, the prospective jurors were asked collectively if they had sued someone or had been sued, or had been a plaintiff or a defendant in a lawsuit. For each of the jurors
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