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A Florida appeals court has overturned a $5 million plaintiff’s verdict for wrongful death and ordered a new trial because the jury foreman did not disclose a litigation history that involved attorneys for both the defendants and the plaintiffs. During voir dire, the juror, Bernard Benjamin Coats, revealed in answer to questions asked of the entire jury pool that years earlier he had been a defendant in a suit over a traffic accident. The defense moved to remove him, but Judge Murray Goldman denied the challenge. After the trial the defense conducted an investigation of the jurors. It revealed that Coats had been the plaintiff in a suit he didn’t disclose, a personal-injury action that he filed against Dade County, Fla., in 1991. More seriously, the appeals court noted, Coats had been represented in that litigation by the firm of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando of Stuart, Fla. — the same firm that was representing plaintiff Colin Walton Sr. in the wrongful-death case. Further, a defendant in the wrongful-death case, Steven Gerald Davis, was represented by Steve Barnard of the Law Offices of Barnett & Barnard of Miami, who had represented Dade County against Coats, the jury foreman. Goldman, in the interest of speed, sat 15 potential jurors at a time in the jury box for questioning and an equal number in the gallery. He told the potential jurors in the gallery to listen closely to the questions being asked and instructed them to be forthcoming about all their experiences with litigation when their turn came to be questioned. JUROR WAS SILENT Transcripts showed that Coats spoke of his auto accident case but mentioned nothing about his personal injury case after the lawyer questioning him changed the subject. At no point during the nine-day trial did he tell the court about his past dealings with the two attorneys. The plaintiffs argued in the appeal that Coats was not in the courtroom when the judge gave his instructions and his failure to disclose fully his litigation history was the result of allegedly slipshod questioning by the defense. “Only one of three defense counsel even questioned the jurors about prior involvement in litigation,” said Joel Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin of Miami, the plaintiff’s appeal counsel. “As he was answering, the lawyer asked him another question on another subject and never came back to the subject.” The appeals court put the onus on Coats. It wrote that “we conclude that the information Mr. Coats suppressed was relevant and material to jury service in this case.” Davis v. Cohn, No. 3D99-3128 (Fla. 3d Dist. Ct. App.). The wrongful-death case stemmed from an accident Nov. 20, 1996, on the Florida Turnpike in which husband and wife Colin and Arletha Walton were killed. The Waltons were driving north in their car. In the southbound lane, a truck owned by Sunshine Industries of Coral Gables, Fla., and driven by Davis, entered the turnpike, cutting off a diesel fuel tanker owned by DSI Industries, a Texas corporation, and driven by Nieves Gomez. Gomez lost control of the truck, which crossed the median and crushed the Waltons’ car. Walton v. Davis, No. 97-11843 (Miami-Dade Co., Fla., Cir. Ct.). The $5 million verdict was “out of whack,” said Richard Sherman of the Law Offices of Richard A. Sherman of Fort Lauderdale, Fla., who argued the successful defense appeal. A post-trial investigation into the litigation history of jurors has become standard in cases resulting in large verdicts, he said. “You would think that if a person has had one lawsuit in his life, he would remember the attorney who represented him,” said Sherman. “We can safely say that if this information had been known at voir dire, he probably would have been off for cause. The message for attorneys is, if the verdict is off the wall, check if there was any information jurors did not reveal.” Perwin said that the plaintiffs are considering an appeal to the Florida Supreme Court.

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