Case Update: Ottley v. Kirchharr,

August 18, 2016 |

A dental malpractice action resulted in a jury verdict for the dentist. The patient's counsel then alleged juror misconduct and filed a motion for a new trial. The trial court found that juror misconduct had occurred and granted the motion. This appeal followed. The alleged misconduct revolved around a juror's response to the voir dire question, "Has anybody ever had facial reconstructive surgery?"  The juror in question had recent elective cosmetic facial surgery, which she did not consider reconstructive. Thus, she answered the question in the negative. The District Court of Appeal found that no juror misconduct had occurred. There is a three part test for juror misconduct:  1) the information is relevant and material to jury service in the case; 2) the juror concealed the information; and 3) the failure to disclose the information was not attributable to the complaining party's lack of diligence. The court found that the juror did not conceal any information, because it was reasonable that she would not have considered elective cosmetic facial surgery to be facial reconstructive surgery, and therefore, the juror answered the plaintiff's counsel's ambiguous question correctly. Moreover, the lack of information obtained was due to the lack of diligence on the part of counsel conducting voir dire. Counsel must provide sufficient explanation of the type of information which potential jurors are being asked to disclose.

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