On Friday, I gave a small diatribe about the foolishness of allowing a doctor’s attorneys, after getting hit with a $28 million medical malpractice verdict, to bring back the jurors to essentially cross-examine them on their answers during voir dire. I explained that Maryland lawyers would not be able to pull this type of stunt under Maryland law and why I thought the law prohibiting the losing lawyers from bringing back jurors after a trial was prudent. I wrote that I hoped the Florida court would treat this case similarly to the approach a Maryland court would take.
Of course, this was a jinx. The Associated Press reports that Florida Circuit Court Judge Debra S. Nelson did order the jurors back to court, questioning them about their answers during voir dire. After two hours of argument after this questioning, the judge threw out the $28 million verdict and ordered a new trial because three of the jurors did not respond affirmatively to the Plaintiff’s malpractice attorney’s question during voir dire about prior lawsuits in which they were involved.
Ironically, these jurors did not fail to disclose claims they had brought, making them appear more plaintiff-friendly. Instead, they withheld information about lawsuits that had been filed against them. How the withholding of this evidence would prejudice a doctor accused of malpractice is a mystery. Believe me, if the doctor’s lawyers had been told during jury deliberations exactly what these jurors had withheld, these lawyers would not have thought for a second that their chances of prevailing had diminished in even the slightest way.
Again, I think the message this sends to lawyers is if you do not like the outcome and the stakes are high enough, attacking the jurors after the verdict may be an all-purpose palliative to the bite of an adverse verdict. In fact, in a case like this, there is no reason the lawyers could not have researched the jurors after they were selected, determined that they would not forthright during voir dire, and then put that information in their pocket pending the outcome of the case. This second-guessing of jurors by allowing them to be questioned about their voir dire responses is bad law in my opinion. I am glad we have some protections to avoid what I think is an injustice in this case.
I generally support the wide discretion judges are given in these kinds of situations but I hope this verdict is reinstated on appeal.