Torres et al v. First Transit, Inc.
Filing
215
FINDINGS OF FACT AND CONCLUSIONS OF LAW. ORDERED AND ADJUDGED that Defendant First Transit, Inc.'s Motion for New Trial and Remittitur, DE# 137 , is DENIED. Signed by Judge Beth Bloom on 8/3/2021. See attached document for full details. (ebz)
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 1 of 43
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-81162-BLOOM/Reinhart
JUAN TORRES and
ALEJANDRO TORRES,
Plaintiffs,
v.
FIRST TRANSIT, INC.,
Defendant.
_________________________/
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE is before the Court upon Defendant First Transit, Inc.’s (“Defendant”)
Motion for New Trial and Remittitur. ECF No. [137] (“Motion”). Plaintiffs Juan Torres and
Alejandro Torres (collectively, “Plaintiffs”) filed a Response in Opposition, ECF No. [148]
(“Response”), to which Defendant filed a Reply, ECF No. [152] (“Reply”). The Court also allowed
Plaintiffs to submit a Sur-reply, ECF No. [154] (“Sur-reply”), to address the exhibits that
Defendant filed on Reply.
Consistent with the instructions from the Court of Appeals for the Eleventh Circuit, this
Court held an evidentiary hearing on the Motion on February 19, 2021. See ECF No. [212]; see
also Torres v. First Transit, Inc., 979 F.3d 876, 887-88 (11th Cir. 2020). The parties also submitted
proposed findings of fact and conclusions of law. See ECF No. [209] (Plaintiffs’ Proposed
Findings of Fact and Conclusions of Law); ECF Nos. [210], [213] (Defendant’s Proposed Findings
of Fact and Conclusions of Law). The Court has carefully reviewed the Motion, all opposing and
supporting submissions, the evidence and testimony presented during the evidentiary hearing, the
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 2 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
record in this case, the applicable law, and is otherwise fully advised. Accordingly, the Court
makes the following findings of fact and conclusions of law.
I. BACKGROUND & PROCEDURAL HISTORY
This case arises from an automobile accident that occurred on September 30, 2017. The
Plaintiffs’ vehicle was struck by a bus driven by Defendant’s employee, causing significant
injuries to each Plaintiff. The Defendant admitted liability and the case proceeded to trial on the
issue of damages. On November 8, 2018, following a three-day jury trial, see ECF Nos. [124],
[125], & [129], the jury returned verdicts in favor of each Plaintiff, see ECF No. [109]. As to
Alejandro Torres, the jury awarded damages in the amount of $2,496,261.13, which included past
medical expenses ($396,261.13), past pain and suffering ($600,000.00), and future pain and
suffering ($1,500,000.00). ECF No. [109] at 1. As to Juan Torres, the jury awarded damages in
the amount of $4,927,604.38, which included past medical expenses ($877,604.38), past pain and
suffering ($1,050,000.00), and future pain and suffering ($3,000,000.00). Id. at 2. On November
13, 2018, the Court entered Final Judgement in Plaintiffs’ favor. ECF No. [110].
A. Post-Trial Motion
On December 11, 2018, Defendant filed the instant Motion requesting 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.” Torres, 979 F.3d at 879. 1 The
Eleventh Circuit summarized the issues raised in the Motion as follows:
First Transit discovered 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.[n.2] Y.C.’s
Defendant also sought a new trial or remittitur because the jury’s award was excessive and against the
greater weight of the evidence, see ECF No. [137] at 6-12, which the Court previously denied, see ECF No.
[155] at 9-12. However, these excessive-verdict arguments are not at issue on remand from the Eleventh
Circuit. See Torres, 979 F.3d at 881 n.4 (“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.”).
1
2
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 3 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
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.
[n.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.
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)).
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”) . . . . 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.”[n.3]
[n.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).
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
3
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 4 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
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
someone or been sued by someone) please describe the circumstances.” 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.
Id. at 879-80 (some citations omitted).
Plaintiffs opposed the Motion, arguing that Defendant had waived the right to challenge
the jurors’ nondisclosure post-verdict when, through the exercise of reasonable diligence,
Defendant could have uncovered the jurors’ publicly available litigation history before the jury
returned its verdict. Additionally, Plaintiffs asserted that Defendant was not entitled to a new trial
because there was no evidence of the jurors’ dishonesty or their actual bias.
On February 13, 2019, this Court denied Defendant’s Motion without holding an
evidentiary hearing and explained that, even assuming that the jurors were dishonest on the
questionnaire and during voir dire, there was no indication of actual bias or of any close connection
between the facts of this case and the jurors’ prior undisclosed litigation. See Torres v. First
Transit, Inc., 367 F. Supp. 3d 1373, 1378 (S.D. Fla. 2019), ECF No. [155] (“Order”). Because it
concluded that the jurors were willing and able to be fair and impartial in this case and that
Defendant had failed to show the existence of any actual bias, the Court declined to consider
whether Defendant had waived its right to challenge the jurors’ alleged nondisclosure by waiting
to conduct an investigation into the jurors on the panel until it received the unfavorable verdict.
See id. at 1379 n.4.
4
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 5 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
B. Appeal to the Eleventh Circuit
Defendant appealed the Court’s Order. On review, the Eleventh Circuit vacated the Order
and remanded the case back to this Court for an evidentiary hearing on whether Jurors Y.C. and
E.S. could have fairly and impartially considered the evidence presented at trial and applied the
law in accordance with this Court’s instructions. See Torres, 979 F.3d at 887-88. The Eleventh
Circuit instructed that:
[t]he 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.
Id. at 888.
C. Proceedings on Remand
On remand, the Court appointed counsel for the jurors at Plaintiffs’ request, see ECF No.
[177], and scheduled a status conference to discuss the procedures that would apply during the
evidentiary hearing, see ECF No. [173]. At the status conference on January 12, 2021, Defendant
indicated that, following remand from the Eleventh Circuit, it had expanded its original
investigations into the jurors and stated that it intended to address additional legal proceedings
beyond those initially uncovered post-trial. ECF No. [184] at 10-14. The Court, however,
explained that the evidentiary hearing would be limited to those matters initially raised in
Defendants’ Motion, and ordered that all supplemental evidence be filed on the docket by January
29, 2021. Id. at 13-14.
Upon receipt of this additional evidence, the Court held another status conference on
5
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 6 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
February 12, 2021, to address the relevance of the documents that were submitted. ECF No. [200].
The Court made it explicitly clear at this second status conference that no legal proceedings were
to be addressed at the evidentiary hearing if they were not originally identified in Defendant’s
Motion in December 2018. Id. at 10-15.
Nevertheless, on February 16, 2021, Defendant filed a Renewed Request to Question Juror
E.S. Regarding Undisclosed Prior Felony Conviction. ECF No. [196] (“Renewed Request”). On
February 17, 2021, this Renewed Request was denied for the reasons the Court previously stated
on the record at the second status conference. ECF No. [202].
D. Evidentiary Hearing
On February 19, 2021, the Court held a seven-hour long evidentiary hearing on
Defendant’s Motion to determine whether Jurors Y.C. and E.S. made dishonest statements during
voir dire, where their otherwise truthful responses would have provided Defendant with valid
bases to strike them for cause. See ECF No. [212]. This proceeding was attended by counsel for
each party, Jurors Y.C. and E.S., and appointed counsel for Y.C. and E.S. and it addressed the
jurors’ prior litigation history 2 and the impact of these prior lawsuits on the jurors’ ability to be
fair and impartial in this case. Based on the jurors’ testimony and the documentary evidence
presented by Defendant, the Court makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT
As noted above, on February 19, 2021, the Court held an evidentiary hearing, where Y.C.
Consistent with its rulings at the second status conference and on Defendant’s Renewed Request, prior to
commencing the evidentiary hearing, the Court once again denied Defendant’s renewed ore tenus motion
seeking permission to: (1) question Juror E.S. about whether he had previously been convicted of a felony,
although this conviction was not originally raised in the Motion, see ECF No. [212] at 6-12, 107-08, and
(2) question Juror Y.C. regarding legal proceedings that arose after her selection as a juror in this case, see
id. at 74-75. See also ECF No. [210-1] (Defendant’s Proffer Regarding Juror E.S.); ECF No. [210-2]
(Defendant’s Proffer Regarding Juror Y.C.). The Court reiterated that the scope of questioning permitted
at the evidentiary hearing was limited to the matters that were originally raised in Defendant’s Motion.
2
6
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 7 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
and E.S. were subjected to in-depth questioning about the nature and extent of their prior lawsuits,
the facts and outcomes of these prior cases, their perceptions of these cases and of the legal system
as a whole, their ability to remain fair and impartial, and the truthfulness of their answers to the
questions posed during jury selection. See id. Their testimony is set forth below.
A. Juror Y.C.
The Court started off the evidentiary hearing by thoroughly questioning Juror Y.C. on
certain “core” topics, including the truthfulness of her answers to question 10 of the juror
questionnaire and during voir dire, her understanding of the questions posed and their meaning,
her motives for nondisclosure, her perception of the legal system as a whole, and her ability to be
fair and impartial to all parties.
Defendant, however, argues that Y.C. could not have been fair or impartial in serving as a
juror here, especially given the nature and extent of her prior litigation history. Indeed, Defendant
contends that Juror Y.C.’s involvement in seven prior lawsuits is clear evidence that she gave
intentionally dishonest answers on the juror questionnaire and during voir dire. Likewise,
Defendant asserts that Y.C.’s bias must be presumed because her prior litigation history relates
entirely to debt collection and foreclosure proceedings, and this case could have potentially
resulted in debt collection proceedings against Plaintiffs on their unpaid medical bills. The Court
will first detail Y.C.’s testimony in response to the core questions posed by the Court and counsel
before turning to each of her seven prior lawsuits.
1. Core Questions
During the Court’s initial inquiry, Y.C. testified that she answered all of the questions on
the juror questionnaire to the best of her ability and that her answers were truthful. ECF No. [212]
7
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 8 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
at 18-19. In particular, Y.C. stated that her answers to questions 10 and 12 3 were truthful at the
time she completed the form. Id. at 19. Likewise, during voir dire, the Court asked “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? If so, please raise your hand.” ECF No. [124] at 34. No hands were raised. See id.
At the evidentiary hearing, the Court restated the question it asked during voir dire and Juror Y.C.
affirmed that her silence in response to this question was truthful, explaining that, “At the time, I
didn’t know I had been involved in a lawsuit.” ECF No. [212] at 20.
Y.C. went on to state that she had since learned, in the month before the evidentiary
hearing, that she had, in fact, been a party to lawsuits. Id. at 21. Indeed, she testified that her courtappointed attorney in these proceedings informed her that “all claims in a court are lawsuits,” and
she noted that she had “been involved in some cases that [she] did not believe [] were lawsuits.”
Id. at 21-22. Juror Y.C. clarified her confusion regarding whether certain cases were “lawsuits,”
stating: “I thought lawsuits were only cases where—where people were seeking compensation for
pain and suffering, and—like in a car accident or an accident at work, someone getting hurt. And
the cases I have been involved with are collection cases, a divorce. To me, those were not
lawsuits.” Id. at 22. Nevertheless, Y.C. had no hesitation or doubt that her experiences during these
collection cases had no effect on her ability to serve as a fair and impartial juror in this case. Id.
Juror Y.C. further expressed that she had no intention to conceal the information regarding her
prior litigation history during jury selection. Id. at 22-23. Rather, she answered all the questions
Question 10 asked, “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.” Juror Y.C.’s answer to this
question was “N/A.” See ECF No. [141-1]. Moreover, question 12 asked, “Is there anything in your
background or personal feelings which might affect your ability to be fair and impartial to both sides?”
Juror Y.C. responded “no.” See id.
3
8
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 9 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
truthfully based on her mistaken understanding that she had never been involved in a lawsuit
because “a lawsuit involved someone getting hurt.” Id.
The Court permitted the attorneys to ask questions to Juror Y.C. directly. During the
Defendant’s examination, Y.C. acknowledged that she was aware, during jury selection, of the
possibility that a collections issue could arise regarding Plaintiffs’ medical bills in this case, but
she emphasized her understanding that this case was not a collections case. Id. at 34. Moreover,
when asked whether her prior litigation history had negatively affected her life or her views of the
legal system and/or its fairness, Juror Y.C. said that it had not. See, e.g., id. at 70, 78, 81 (“I don’t
have any problems with the legal system.”). Rather, Juror Y.C. agreed that she owed all of the
debts at issue in her prior lawsuits. Id. at 81. With regard to her failure to disclose her prior
collections actions during jury selection, Y.C. stated, “I accept I made a mistake when I filled out
the form. It wasn’t intentional. I didn’t know at the time that I had been involved in lawsuits.” Id.
at 90. She also expressed that there was nothing in her background or personal feelings, including
those relating to her prior cases, that would affect her ability to be fair and impartial. Id. at 95.
Juror Y.C. testified that she felt no bias toward any party based on her prior litigation history, that
she did not feel that the issue in this case regarding outstanding medical bills was comparable to
any of her previous collections cases, and that disclosing her litigation history would not have
affected her ability to serve as a fair and impartial juror here. Id. at 98.
2. 2003 Lawsuit
Defendant first questioned Juror Y.C. about her knowledge of and involvement in a lawsuit
filed on May 21, 2003, by the State of Florida’s Department of Financial Services against Y.C.
and her stepfather. See ECF No. [212] at 44-45 (“2003 Lawsuit”). This action was ultimately
dismissed without prejudice for lack of prosecution on June 10, 2004. See ECF No. [188-1] at 47.
9
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 10 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
The state court docket reflects that this action involved issues of contract and indebtedness (up to
$5,000.00), but there is no other evidence in the record that indicates the precise nature of this
case. See id. at 44-45. Juror Y.C. testified that she had no knowledge or recollection of this case,
and that she did not know whether her stepfather had ever been served in this matter. ECF No.
[212] at 44. In light of her testimony that she had no knowledge of this lawsuit, along with the
absence of any record evidence to suggest that Y.C. knew of or participated in this action, the
Court finds the 2003 Lawsuit to be of no weight in its analysis of Y.C.’s prior litigation history.
3. 2004 Lawsuit
In addition, Defendant cross examined Juror Y.C. on a lawsuit filed against her on April 6,
2004, by Discover Bank to recover outstanding credit card debt. See id. at 45-47 (“2004 Lawsuit”).
Following a Stipulation for Settlement (“Stipulation”) entered into between the parties to that
action and signed by Y.C. on May 19, 2004, ECF No. [188-1] at 59-60, the state court signed a
Final Order of Dismissal with Prejudice and Preserving Jurisdiction to Enforce Written Stipulation
for Settlement on June 3, 2004, 4 id. at 62-63 (“Final Order of Dismissal”).
At the evidentiary hearing, Y.C. repeatedly stated that she had no recollection of ever being
served with the 2004 Lawsuit or of, as Defendant suggested, going to the courthouse and entering
into an agreed payment plan with Discover Bank before a judge. See ECF No. [212] at 45-47. Juror
Y.C. acknowledged that her signature was on the Stipulation but stated that she had no recollection
of this lawsuit. Id. at 46-47. Indeed, despite numerous questions about whether Y.C. recalled going
to court and entering into the Stipulation, Juror Y.C. consistently stated that she had no memory
of the 2004 Lawsuit. Id. at 46-47, 55-56.
Furthermore, despite Defendant’s contention that Y.C. went to court, appeared before a
4
This Final Order of Dismissal was docketed on June 28, 2004. See ECF No. [188-1] at 57.
10
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 11 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
judge, and signed the Stipulation—thus suggesting that she was aware of her involvement in other
lawsuits—the Court notes that Defendant’s own evidence rebuts this theory. See ECF No. [213] at
19 (“[I]t would defy logic to conclude that Juror Y.C. did not know she was a party to at least one
prior lawsuit where she went to court, appeared in front of a judge on her own behalf and signed a
Stipulation of Settlement.”). Notably, the Final Order of Dismissal is dated more than two weeks
after the date on which Plaintiff signed the Stipulation, and it states, “THIS CAUSE, coming on to
be heard, Ex Parte, before me, upon the Stipulation of Settlement entered into by and between the
parties in the above cause and the Court having examined the Stipulation for Settlement and
attachments thereto and being fully advised in the premises . . . .” ECF No. [188-1] at 62 (emphasis
added); see also id. at 60 (Stipulation noting that, “[u]pon signing this agreement, the Plaintiff’s
Counsel shall submit this agreement to the Court for ratification”). Upon review of Y.C.’s
testimony and the record evidence, the Court finds no support for Defendant’s argument that Y.C.
knew she had been a party to other lawsuits because she actively participated in court proceedings
during at least one of these prior actions. Indeed, while Juror Y.C. identified the signature on the
Stipulation as hers, she also repeatedly stated that she had no recollection of the 2004 Lawsuit.
4. 2008 Lawsuit
Next, Defendant addressed a lawsuit filed by Arrow Financial Services LLC (“Arrow
Financial”) against Juror Y.C. on May 30, 2008, for unpaid credit card debt. See ECF No. [212] at
56-61 (“2008 Lawsuit”). Default Final Judgment was entered against Y.C. in this lawsuit on
October 27, 2008. ECF No. [188-1] at 83. 5 When asked if she recalled the 2008 Lawsuit with,
Although Defendant submitted a significant number of court records relating to the 2008 Lawsuit, the
Court notes that many of these documents are dated after the trial in this case and are therefore not relevant
to the Court’s inquiry. See generally id. at 67-127. For example, Defendant emphasizes the fact that the
judgment in the 2008 Lawsuit led to garnishment proceedings against Y.C. However, the writ of
garnishment that was issued during the relevant time period in this case was later voluntarily dismissed
5
11
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 12 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Y.C. stated that she remembered the case and testified that she was served. ECF No. [212] at 56.
However, she indicated that she ignored these legal documents and took no action in response to
being served with this lawsuit, and that a judgment was subsequently entered against her. Id. at
58-59, 61. Y.C. explained that, at some point prior to the trial in this case, she learned that a
judgment had been entered against her in the 2008 Lawsuit, but she did not know the terms of that
judgment. Id. at 59.
Upon review of the record, the Court views this line of questioning as irrelevant. The 2008
Lawsuit was never raised in Defendant’s original Motion, despite Defendant’s possession of such
information at the time it filed the Motion. Compare ECF No. [141-2] (only presenting court
records from six of Y.C.’s prior lawsuits, which arose in 2003, 2004, 2009, 2011, 2017, and 2018,
in Defendant’s appendix to the Motion), 6 with ECF No. [188-1] at 30 (identifying Y.C.’s 2008
Lawsuit in Defendant’s Sherlock Investigations Report dated November 12, 2018). As such,
Defendant’s inquiry into the 2008 Lawsuit was in direct contravention of this Court’s rulings
regarding the scope of permissible questioning following remand—namely, that the parties were
not permitted to address any new lawsuits or issues that were not originally presented in
Defendant’s Motion. The 2008 Lawsuit could have been timely raised in the Motion, yet
Defendant chose not include any of the relevant documents with its original materials. By failing
to raise a timely objection regarding the 2008 Lawsuit, Defendant waived its right to do so.
because the garnishee was not associated with Juror Y.C. See id. at 85-86, 90-91. The Court will limit its
discussion to materials that were in existence at the time Y.C. was selected as a juror in this case.
6
Curiously, in its original Motion, Defendant represented that Juror Y.C. “had been involved in eight civil
litigation matters between 2003 and the present,” ECF No. [137] at 3, yet it only submitted evidence of six
prior cases in its Sealed Appendix to the Motion, see generally ECF No. [141-2]. See also Torres, 367 F.
Supp. 3d at 1377 (noting that “Defendant provided 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”).
12
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 13 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
5. 2009 & 2011 Foreclosures
Juror Y.C. was also questioned about two prior foreclosure proceedings with which she
was involved—one filed on March 12, 2009, see ECF No. [188-2] at 6-9 (“2009 Foreclosure”),
and the other on December 15, 2011, see id. at 32-38 (“2011 Foreclosure”).
Although Y.C. did not recall being served with the 2009 Foreclosure, she explained that,
at the time of the lawsuit, she and her husband at the time were separated and “he took care of it
[the foreclosure proceeding] on his own.” ECF No. [212] at 71-72. On February 12, 2020, a Final
Judgment of Foreclosure upon summary judgment was entered in the 2009 Foreclosure against
Juror Y.C, among other individuals. ECF No. [188-2] at 14-19.
Likewise, Y.C. testified that she did not recall being involved in a subsequent foreclosure
proceeding in 2011. ECF No. [212] at 73. Indeed, Y.C. stated that her ex-husband took care of the
2011 Foreclosure, as he had with the 2009 Foreclosure, and she had never received copies of the
documents, including the judgment. Id. at 75-76. Ultimately, a Final Judgment of Foreclosure was
issued in the 2011 Foreclosure on March 27, 2014. See ECF No. [188-4] at 4-8.
6. 2017 Lawsuit
Juror Y.C. was also questioned regarding an additional lawsuit against her for unpaid credit
card debt, which was filed by Capital One Bank (USA), N.A. on February 2, 2017. Id. at 44-76
(“2017 Lawsuit”). 7 Although the Return of Service notes that Y.C. was personally served with the
2017 Lawsuit on January 17, 2018, see id. at 59, Juror Y.C. testified that she did not recall being
served with the 2017 Lawsuit and that she took no action with regard to that case. ECF No. [212]
at 62-64. On February 2, 2018, a default was entered against Y.C. after she failed to appear for a
pre-trial conference. ECF No. [188-4] at 61. As of the trial date in this case, there was no final
As with the 2008 Lawsuit, the Court limits its review of the evidence submitted on the remaining two
lawsuits to documents that pre-date Juror Y.C.’s jury service in this case.
7
13
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 14 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
disposition in the 2017 Lawsuit. See ECF No. [188-4] at 48-49.
7. 2018 Lawsuit
Finally, Defendant inquired into a lawsuit against Y.C. for unpaid credit card debt filed by
Portfolio Recovery Associates, LLC on June 11, 2018. Id. at 78-116 (“2018 Lawsuit”). According
to the Return of Service, Y.C. was personally served a few months before the trial in this case, on
June 23, 2018. Id. at 92. However, she testified at the evidentiary hearing that, while she was aware
of the lawsuit, she did not recall being served or taking any action in response to the lawsuit. ECF
No. [212] at 65-66. As of the trial date in this case, there was no final disposition in the 2018
Lawsuit. See ECF No. [188-4] at 82-83.
B. Juror E.S.
The inquiry of Juror E.S. followed the same procedures followed during Juror Y.C.’s
questioning. Juror E.S. was placed under oath and the Court conducted an in-depth questioning on
certain “core” topics, including the truthfulness of his answers to question 10 of the juror
questionnaire and during the voir dire proceedings, his understanding of the questions posed and
the meaning of the term “lawsuit,” his motives for nondisclosure, his perception of the legal system
as a whole, and his ability to be fair and impartial.
Defendant raises similar arguments regarding Juror E.S. as those raised about Y.C. In
addition to E.S.’s alleged bias based on the number of prior lawsuits and the nature of his prior
cases, Defendant argues that E.S. actively engaged and participated in litigation to such an extent
that he could not credibly assert at the evidentiary hearing that he did not know what a lawsuit
was. Specifically, Defendant contends that Juror E.S.’s active participation in five prior lawsuits,
which concerned debt collection, foreclosure, and bankruptcy proceedings, presents clear evidence
of his bias and his dishonest answers during jury selection. As with Juror Y.S., the Court will first
14
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 15 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
detail E.S.’s testimony in response to the core questions posed by the Court and counsel before
turning to each of his five prior lawsuits.
1. Core Questions
During the evidentiary hearing, Juror E.S. testified that all of his answers on the juror
questionnaire were true and that his response to question 10 8 was correct. ECF No. [212] at 112,
114; see also id. at 122-23 (“A. Yeah. I was truthful on all my answers on that form. . . . Q. And
is it your testimony before Her Honor today that you were [] forthcoming, candid,
and . . . transparent in completing that form? A. Yes.”). He also stated on cross examination that
he believed he had fully answered all of the questions on the questionnaire. Id. at 136.
Moreover, when E.S. was asked to explain why he had not disclosed any prior lawsuits in
response to question 10, he responded,
A. [] Because I don’t . . . . think I had any. I don’t have any.
....
Q. Okay. So I want to make sure I understand. “No. I didn’t disclose them because
I didn’t think I had any,” meaning lawsuits, correct? That’s what you said right
now, right?
A. No. No. I didn’t—I answered it as no.
Q. Right. But I want the record to be clear—
A. The answer to that question was no.
Q. Right. Because you didn’t think you had any lawsuits, correct?
A. Exactly.
....
Q. . . . At the time you completed the questionnaire, you knew what a lawsuit was,
correct? You just didn’t—
A. No. I didn’t know a hundred percent what a lawsuit was, no.
Q. What did you think a lawsuit was at the time you completed the questionnaire?
A. To me, I don’t know, it seemed like it would be more criminal, you know, it
would be something important.
Q. Prior to completing the questionnaire, had you been a party in lawsuits?
A. I don’t think I was, no.
Question 10 asked “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.” Juror E.S. answered “no.” See
ECF No. [141-3]. Additionally, question 12 asked “Is there anything in your background or personal
feelings which might affect your ability to be fair and impartial to both sides?” E.S. answered “no.” See id.
8
15
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 16 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Id. at 118-19.
Juror E.S. further explained his answer to question 10, stating that “anything that I went
through with the condominium association or a credit card, it was like I know I owed the money.
And when it came time to pay, I paid it. So I didn’t look at it as a lawsuit.” Id. at 136; see also id.
at 144-45 (“Q. Now, in Question 10 . . . . [y]ou didn’t describe any circumstances of a lawsuit, did
you? A. I mean, I was never—it was never a lawsuit. . . . I never thought of it as a lawsuit. . . . But
this case that we’re on right now, yeah, that’s a lawsuit. That’s what I would think is a lawsuit.”).
Throughout the course of his testimony, E.S. reiterated this understanding on numerous occasions
while discussing his prior lawsuits. 9 Juror E.S. stated that, although he did not know what a lawsuit
was at the time of jury selection, he has since learned the meaning of the term. Id. at 200; see also
id. at 168-69.
In addition, E.S. reiterated on cross examination that he told the truth during the voir dire
proceedings. Id. at 137. Regarding the Court’s question during voir dire, 10 E.S. reaffirmed his
original answer that he was not involved in a lawsuit that had shaped his view of the legal system
that would affect his ability to serve as a fair and impartial juror. Id. at 113. Nevertheless, E.S.
testified that, when the Court posed its question during voir dire, he did not understand what a
lawsuit was, explaining, “It just—everything I’m looking at is, you know, my condominium and
See, e.g., ECF No. [212] at 128 (“I didn’t look at [the lawsuit with his condominium association] as a
lawsuit. I owed them money. And the three of us—three other people on the board, we were working on
the special assessments. And I—and when I had to pay it, I paid it. But I didn’t realize it was a lawsuit. I
never paid attention to it.”); id. at 169 (“[W]hen I filled that out and put “no,” I put no, I wasn’t involved in
a lawsuit. I didn’t—nothing entered my mind on anything in my past. I never even thought about my past.
I just felt like I never was in a lawsuit. . . . I didn’t think I was in a lawsuit.”); id. at 184-85 (“I never
considered any of these things lawsuits. Because, to me, a lawsuit is—you know, it seems like it would be,
you know, more than just something that somebody owes. It never—I never really thought about it.”).
9
As noted above, the Court posed the following question during voir dire: “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? If so, please
raise your hand.” ECF No. [124] at 34. No hands were raised. See id.
10
16
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 17 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
credit cards. I didn’t think it was lawsuits.” Id. at 197-98. Indeed, E.S. explained that he did not
make any connection between this case and his prior lawsuits at the time of jury selection. See id.
at 130-31, 134, 169, 184-85.
Similarly, when asked whether, after having discussed his prior cases at the evidentiary
hearing, he believed he should have disclosed this litigation history in response to question 12,
E.S. answered, “When I filled that out, I didn’t even think of any of that. . . . I wasn’t debating on
what I should put down . . . . [b]ecause the answer was no. . . . It’s not going to affect my ability
to be [] fair and impartial [] to both sides.” Id. at 205-06. Juror E.S. further testified that he has
trust in the legal system, id. at 135, that he had a positive perception of the legal system, id. at 181,
200-01, and that his experiences in his prior lawsuits had not had significant negative effects on
his life, id. at 159, 181, 187-89, 200-01.
2. 2000 Lawsuit
The first of E.S.’s five alleged prior lawsuits relates to a Rhode Island action filed by Arrow
Financial that resulted in a civil judgment against E.S. for $5,423.00 on April 28, 2000. See ECF
No. [187-1] at 86 (“2000 Lawsuit”). Similar to the inquiry of Juror Y.C., the attorneys were
permitted to ask questions directly. Defendant questioned E.S. about whether the civil judgment
pertained to him, as opposed to his late father, but E.S. repeatedly testified that he did not have
any recollection of this lawsuit, of ever doing business with Arrow Financial, or of paying
$5,423.00 to any business during April 2000. ECF No. [212] at 156. Juror E.S. acknowledged that
he had previously lived at the address listed in the Sherlock Investigations Report but could not
recall if he was living at that address in 2000. Id. at 157. Indeed, E.S. testified that he did not
remember anything about Arrow Financial. Id. at 177.
Critically, however, the Defendant failed to submit any evidence or court records relating
17
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 18 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
to the 2000 Lawsuit to substantiate its belief that this judgment applied against Juror E.S. Rather,
Defendant relied solely on a one-page excerpt from its own Sherlock Investigations Report to
demonstrate E.S.’s involvement in that lawsuit. ECF No. [187-1] at 86. This unsubstantiated
allegation, on its own, does not establish that E.S. participated in or knew of the 2000 Lawsuit,
especially where Plaintiffs and counsel for E.S. alerted Defendant of the fact that E.S. and his late
father shared the same name. The Court will not simply assume that Juror E.S. was involved in the
2000 Lawsuit in the absence of any record evidence or testimony confirming the relevance of that
lawsuit to the instant proceedings. As such, the Court affords the 2000 Lawsuit no weight in its
analysis of E.S.’s alleged misconduct.
3. 2000 Bankruptcy
Defendant questioned Juror E.S. about whether he had previously declared bankruptcy in
Rhode Island. See id. at 81-82 (“2000 Bankruptcy”). E.S. acknowledged that he had filed for
bankruptcy on one prior occasion because he could not afford to pay off his high-interest credit
card debts. See ECF No. [212] at 152, 159, 161. E.S. also confirmed that the last four digits of his
social security number matched those listed on the docket sheet that Defendant submitted on
remand and agreed that this exhibit related to his bankruptcy. Id. at 158; see also ECF No. [1871] at 81-82. 11 Juror E.S. further testified that he was represented by an attorney during his
bankruptcy and that he went to court for the case on one occasion, but he did not recall speaking
Although it referenced E.S.’s bankruptcy in passing in its initial Motion, ECF No. [137] at 3, Defendant
failed to submit any evidence of the proceeding in its Sealed Appendix. On appeal, the Eleventh Circuit
noted the lack of evidence pertaining to E.S.’s bankruptcy and excluded this proceeding from its analysis.
See Torres, 979 F.3d at 879 n.2. Following the Eleventh Circuit’s opinion, the only evidence that Defendant
submitted relating to E.S.’s bankruptcy proceeding was an excerpt from its Sherlock Investigations Report
and a printout of the bankruptcy court’s docket. See ECF No. [187-1] at 79-82. These materials would not,
ordinarily, be sufficient to establish that this bankruptcy proceeding pertained to E.S. As such, through its
failure to submit any evidence of E.S.’s bankruptcy proceeding with its original Motion, Defendant
seemingly waived its ability to challenge the proceeding on remand. Nevertheless, because E.S. confirmed
that the docket sheet related to his bankruptcy, the Court considers this proceeding in its analysis.
11
18
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 19 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
to the judge during his visit. See ECF No. [212] at 159-60. However, when asked whether Arrow
Financial was a creditor in his bankruptcy, E.S. stated that he had no recollection of the company
or their involvement in the case. That statement was made even after he was shown a docket entry
from his case and examining the “Notice of Appearance and Request for Service of Notice by
Wendell H. Livingston for Creditor Arrow Financial Services LLC.” See id. at 153, 156; ECF No.
[187-1] at 82. The docket sheet from his bankruptcy proceeding reflects that E.S.’s debts were
ultimately discharged on October 31, 2000. Id.
Juror E.S. stated that his bankruptcy and the resulting debt discharge provided him with a
sense of relief because it put an end to the frequent debt collection calls and mailings that he had
been receiving in connection with his debts. See ECF No. [212] at 159-61. Likewise, E.S. indicated
that, following the completion of his bankruptcy proceedings, he had a good perception of the legal
process and of dealing with the bankruptcy court. Id. at 162.
4. 2011 Foreclosure
Defendant also questioned Juror E.S. regarding a foreclosure action his condominium
association filed against him on May 16, 2011, for his failure to pay certain special assessments.
See ECF No. [187-2] at 21-37 (“2011 Foreclosure”). E.S. testified that he represented himself in
the 2011 Foreclosure and attended a mediation in connection with that proceeding. See ECF No.
[212] at 165-66; see also ECF No. [187-2] at 65. He also acknowledged that he had filed an answer
and a response to a motion for summary judgment in the 2011 Foreclosure, but explained that
those documents were prepared by Bernard Superstein, his neighbor who is an attorney and who
was also involved in the dispute over special assessments at the time. See ECF No. [212] at 166,
171-72; see also ECF No. [187-2] at 42-43, 76-94. As such, E.S. stated that he would sign the
documents prepared by Mr. Superstein without reading them in detail because he and Mr.
19
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 20 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Superstein were both equally familiar with the condominium association issues surrounding the
special assessments. See ECF No. [212] at 175-77.
On December 7, 2011, the state court granted a final judgment of foreclosure against E.S.
in the amount of $20,666.83. See ECF No. [187-3] at 14-17. E.S. ultimately paid the final judgment
amount prior to the foreclosure sale. See id. at 21; see also ECF No. [212] at 178-79. E.S. reiterated
his earlier testimony that he never thought of the 2011 Foreclosure as a lawsuit because, in his
view, “they were just things that I owed them. I owed them money.” ECF No. [212] at 164.
Moreover, Juror E.S. explained that paying this judgment of over $20,000.00 did not adversely
affect him, nor did it have any significant impact on his life, because “it was something I owed
them. I tried to fight it and I paid it.” Id. at 180-81. When Defendant asked Juror E.S. about his
perception of the legal proceeding, having gone from beginning to end, E.S. responded that “I
never looked at it like I had to put a score to it, you know, approval rating. . . . [T]o me, it was not
a big deal. It was something I owed them. It was something I paid them.” Id. at 181.
Defendant challenges E.S.’s credibility and truthfulness by noting that, at the very least,
Juror E.S. must have been aware of his prior involvement in lawsuits when he was forced to
refinance his mortgage to pay off the final judgment in the 2011 Foreclosure. 12 Indeed, E.S. was
asked whether he was forced to take out a mortgage on his condominium in order to satisfy any of
Furthermore, Defendant also takes issue with E.S.’s testimony that he did not know what a lawsuit was,
arguing that this testimony is neither credible nor believable because E.S. testified that he works for Mr.
Superstein, who is a real estate attorney. See ECF No. [212] at 190-92. Defendant states that E.S. could not
claim to be ignorant about the meaning of a lawsuit when he had worked for an attorney for approximately
eight years and this attorney had previously filed complaints for evictions. However, Defendant
misunderstands E.S.’s testimony. Indeed, while E.S. testified that he has worked for Mr. Superstein for
about eight years, he specifically noted that he “do[es] rentals in [Mr. Superstein’s] hotel,” and that he had
previously been “doing vacation rentals for him.” Id. At no point did E.S. testify that his employment
involved the legal field. E.S. further explained that Mr. Superstein had not filed any eviction actions since
hiring E.S., but that, prior to hiring E.S., Mr. Superstein had apparently filed such actions. Id. Nothing in
E.S.’s testimony about his work for Mr. Superstein suggests that he should have a deeper understanding
about the meaning of a lawsuit than a layperson otherwise would.
12
20
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 21 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
the judgments entered against him in his prior lawsuits. See id. at 181, 189-90, 195-96. E.S. was
forthcoming in his responses, explaining that he borrowed money from Mr. Superstein after
judgment was entered against him in the 2011 Foreclosure and that loan was memorialized in a
formal agreement. Id. at 189-90, 195-96. E.S.’s testimony was consistent with the property records
Defendant submitted regarding E.S.’s condominium unit. See ECF No. [187-2] at 9-12 (reflecting
the mortgage and corresponding promissory note between Mr. Superstein and E.S., which was
dated on December 22, 2011—just over two weeks after judgment was entered in the 2011
Foreclosure). 13
5. 2012 Lawsuit
Next, Juror E.S. testified about his involvement in a lawsuit filed by Equable Ascent
Financial, LLC against E.S. for outstanding credit card debt on October 19, 2012. See ECF No.
[187-3] at 27-42 (“2012 Lawsuit”). E.S. explained that the 2012 Lawsuit involved a legal dispute
questioning the interest rates applied to his credit card. See ECF No. [212] at 186. Juror E.S. stated
that he did not understood this proceeding to be a lawsuit. Id. Rather, he thought that he was
“involved in a bank trying to get the money for the credit card.” Id. Furthermore, E.S.
acknowledged that he filed a one-page, handwritten response to the complaint, which explained
that he could no longer afford his payments and he contacted the credit card company on numerous
occasions to try and resolve the issue to no avail. See ECF No. [187-3] at 44. On June 11, 2013,
final summary judgment was entered against E.S. in the amount of $18,241.43. See id. at 69.
When asked if he was disappointed that the credit card company was unwilling to work
with him to resolve the dispute, Juror E.S. stated, “I didn’t think I was going to beat it. . . . I got
The Court also notes that E.S. entered into a Mortgage Modification Agreement on January 17, 2014, see
ECF No. [187-2] at 14-15, but the circumstances surrounding this mortgage modification are unclear as
E.S. was never questioned about this subsequent agreement. See ECF No. [212] at 189-90 (discussing the
original mortgage and promissory note).
13
21
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 22 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
myself into that situation. . . . No one else put me in that situation but me.” ECF No. [212] at 187.
Defendant further questioned E.S. regarding his experience during the 2012 Lawsuit:
Q. Okay. And would you agree that you lost this lawsuit, again against a
corporation, a limited liability corporation [sic]?
A. It had nothing to do with a corporation. It was just my credit card.
....
Q. Did you feel that you were treated unfairly?
A. No. I know—I know that was the law—that was how they operated and that’s
the way it was. And I’m the one that missed the payment date. So the interest rate
went up. Yeah, I tried to get it lower, but no.
Q. Did you have to testify at some point in front of Her Honor Judge Walsh?
A. I wasn’t ordered to go there. I went there.[ 14]
Q. How many times?
A. Once. But I went there just trying to see if I can get the interest rate knocked off.
That’s all.
Q. After this proceeding, what was your perception of the legal system?
A. It didn’t enter my mind, the perception of it.
Id. at 188-89.
6. 2014 Foreclosure
Juror E.S. was also questioned about a lawsuit that was filed by his condominium
association on August 24, 2014, seeking to recover E.S.’s additional unpaid assessments. See ECF
No. [187-3] at 94-103 (“2014 Foreclosure”). E.S. explained that, in this 2014 Foreclosure, he was
represented by counsel because Mr. Superstein, who was also a defendant in the case, hired an
attorney to represent them both. See ECF No. [212] at 194. Further, E.S. testified that he
understood this case to be a foreclosure, but not a lawsuit, because it concerned money that he
owed to his condominium association. See id. E.S. also stated that he attended a settlement
conference in this case during which the parties reached a settlement agreement. Id. at 194-95.
Confusingly, despite E.S.’s statement that he appeared in court for the motion for summary judgment
hearing, it remains unclear whether E.S. participated in the hearing or presented any argument during the
proceedings. See ECF No. [187-3] at 69 (“[This cause] having come to be heard before this Honorable
Court on 06/11/2013 upon Plaintiff’s Motion for Summary Judgment and the Court having heard argument
of counsel and being otherwise fully advised in the premises, finds as follows . . . .” (emphasis added)).
14
22
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 23 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Based on the parties’ settlement agreement, the state court entered an order of dismissal on June
29, 2015. See ECF No. [187-4] at 8.
7. Other Relevant Matters
Defendant also relies on a civil judgment from 1991 and two federal tax liens from 1990
and 1991, all of which allegedly concern E.S., to further bolster its arguments regarding E.S.’s
dishonesty and bias. However, a review of the record evidence reveals that Defendant’s reliance
on the judgment and liens is tenuous at best.
Defendant first contends that E.S. was involved in a debt collection action in 1991 filed by
Old Stone Bank, which resulted in a civil judgment for $2,503.00. See ECF No. [187-1] at 64
(“1991 Judgment”). Notably, however, as with the 2000 Lawsuit, Defendant has not presented any
evidence to substantiate its belief that the 1991 Judgment was entered against Juror E.S., or that
E.S. knew of this lawsuit. Rather, Defendant relies solely on an excerpt in its Sherlock
Investigations Report to support the applicability of the 1991 Judgment. Id. Furthermore, E.S.
testified that, although he previously had a savings account with Old Stone Bank, he did not recall
being involved in any legal action or dispute regarding that account, nor did he recall having a
judgment entered against him related to this savings account. See ECF No. [212] at 151-52. The
Court refuses to speculate about whether the 1991 Judgment applies to E.S. absent some
compelling evidence to support that theory.
Defendant’s submissions on E.S.’s purported federal tax liens suffer from the same fatal
flaw. In particular, Defendant relies solely upon the Sherlock Investigations Report to establish
that E.S. was subject to a federal tax lien for $1,997.00 in 1990 and to another federal tax lien for
$3,112.00 in 1991. See ECF No. [187-4] at 11-20. During the evidentiary hearing, E.S. testified
that, although he could not say with certainty that these liens did not apply to him because he had
23
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 24 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
owed the IRS money in the past, he did not believe these liens applied to him. See ECF No. [212]
at 145-51. Juror E.S. explained that he did not think that he was residing at the address listed on
the liens in the early 1990s, id. at 148, and that the IRS had never put a lien on his property, id. at
146, 149. Although E.S. recalled owing the IRS approximately $3,000.00 in the past, he was
unsure whether the 1991 lien at issue was in any way related to that debt because no lien had been
placed on his property. Id. at 149. Here, as with the 1991 Judgment discussed above, Defendant
has failed to provide the Court with any record evidence confirming that these liens did, in fact,
apply to E.S. Likewise, E.S.’s testimony does little to substantiate Defendant’s reliance on these
liens, as he stated that he could not recall the period during which he resided at the address listed
on the liens, but nonetheless noted that he did not believe the liens were applicable to him.
As such, the Court will not consider the 1991 Judgment or the federal tax liens in resolving
Defendant’s Motion, as they are not supported by any record evidence or by E.S.’s testimony.
III. CONCLUSIONS OF LAW
Pursuant to Federal Rule of Civil Procedure 59, “[t]he court may, on motion, grant a new
trial on all or some of the issues—and to any party— . . . . after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at law in federal court[.]” Fed. R. Civ.
P. 59(a)(1)(A). “A motion for a new trial must be filed no later than 28 days after the entry of
judgment.” Fed. R. Civ. P. 59(b). Moreover, “[t]he only grounds for granting [a Rule 59] motion
are newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). As such, it
is well established that Rule 59 “may not be used ‘to relitigate old matters, raise argument or
present evidence that could have been raised prior to the entry of judgment.’” Sherrod v. Palm
Beach Cnty. Sch. Dist., 237 F. App’x 423, 425 (11th Cir. 2007) (quoting Michael Linet, Inc. v.
24
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 25 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)); see also Quainoo v. City of
Huntsville, No. 5:10-cv-00104-AKK, 2014 WL 11281203, at *2 (N.D. Ala. June 2, 2014), aff’d,
611 F. App’x 953 (11th Cir. 2015).
“Courts treat motions for new trial based on juror misconduct as motions for new trial
based on newly discovered evidence.” New v. Darnell, No. 1:07-cv-00162-SPM-AK, 2010 WL
1192308, at *2 (N.D. Fla. Mar. 24, 2010) (citing United States v. McKinney, 312 F. App’x 247,
249 (11th Cir. 2009)), aff’d, 409 F. App’x 281 (11th Cir. 2011). “Motions for a new trial based on
newly discovered evidence are highly disfavored in the Eleventh Circuit and should be granted
only with great caution.” McKinney, 312 F. App’x at 249. The movant bears the burden of
justifying a new trial. See United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (footnote
omitted) (quoting United States v. Devila, 216 F.3d 1009, 1015-16 (11th Cir. 2000)). “[G]ranting
[a] motion[] for new trial touches on the trial court’s traditional equity power to prevent injustice
and the trial judge’s duty to guard the integrity and fairness of the proceedings before [her].”
Sherrod, 237 F. App’x at 424 (quoting Christopher v. Florida, 449 F.3d 1360, 1366 n.4 (11th Cir.
2006)). Ultimately, “motions for a new trial are committed to the discretion of the trial court.”
Montgomery v. Noga, 168 F.3d 1282, 1295 (11th Cir. 1999).
A. Waiver
“A motion for a new trial based upon newly discovered evidence must not be based on
evidence or incidents of which [movants] had knowledge prior to return of the jury verdict.” United
States v. Calderon, 127 F.3d 1314, 1351 (11th Cir. 1997); see also United States v. Jones, 597
F.2d 485, 488 n.3 (5th Cir. 1979) 15 (“[A] defendant cannot learn of juror misconduct during the
trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted as binding
precedent all decisions of the Court of Appeals for the Fifth Circuit rendered prior to October 1, 1981.
15
25
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 26 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
that the verdict was prejudicially influenced by that misconduct.”). “Moreover, [movants] have the
burden of establishing in their motions that the evidence was in fact newly discovered and that
failure to discover it prior to verdict was not due to a lack of due diligence. If [they] can not make
such a showing, their motions should be denied.” Calderon, 127 F.3d at 1351 (internal citation
omitted); see also United States v. Stacy, 337 F. App’x 837, 839 (11th Cir. 2009). 16
“A party waives a juror misconduct claim if the party learns of the basis for the claim
during trial and fails to bring it to the court’s attention before the jury renders its verdict.” New,
2010 WL 1192308, at *2 (citing Stacy, 337 F. App’x at 839); see also United States v. Edwards,
696 F.2d 1277, 1282 (11th Cir. 1983) (explaining that the appropriate time to alert a court of an
issue regarding juror misconduct would be prior to the return of the verdict because it would allow
the trial court to investigate the alleged misconduct and take any suitable curative action); Garcia
v. Murphy Pac. Marine Salvaging Co., 476 F.2d 303, 306 n.2 (5th Cir. 1973) (“Of course, a party,
with knowledge of a juror’s misconduct, must make a timely objection and is not permitted to take
his chances on a favorable verdict and if unfavorable get a second bite of the apple.”). This rule
“serves to ensure that the trial court is given every available opportunity to attempt to salvage the
trial by ridding the jury of prejudicial influences,” United States v. Bolinger, 837 F.2d 436, 439
(11th Cir. 1988), while also “prevent[ing] parties from gaming the system,” Edwards v. Hyundai
Motor Mfg. Ala., LLC, 701 F. Supp. 2d 1226, 1233 (M.D. Ala. 2010). 17 Indeed, as the Court of
Notably, although newly discovered evidence must have been discovered after the return of the jury
verdict, despite a movant’s exercise of reasonable diligence, such “evidence must [nevertheless have been]
in existence at the time of the trial.” N.L.R.B. v. Jacob E. Decker & Sons, 569 F.2d 357, 364 (5th Cir. 1978).
“This is so because of bedrock principles of finality and certainty of judicial proceedings.” Baucom v. Sisco
Stevedoring, LLC, No. 06-0785-WS-B, 2008 WL 2428930, at *4 (S.D. Ala. June 12, 2008).
16
Accordingly, “a more stringent prohibition on judicial investigation [applies] after a verdict is rendered.
Post-verdict[] inquiries must be more limited because they undermine the ‘stability and finality’ of
verdicts.” United States v. Brown, 996 F.3d 1171, 1209 (11th Cir. 2021) (Wilson, J., dissenting) (quoting
Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 865 (2017)). “There is also less need for investigation post17
26
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 27 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Appeals for the Fourth Circuit has stated:
[C]ounsel [cannot] sit silently by and take chances on a favorable verdict and then
complain when it turn[s] out to be unfavorable. He is not permitted thus to
“speculate upon the chance of a verdict.” Having been silent when it was his duty
to speak, he will “not be heard to speak when it is his duty to be silent.”
Upton v. Harrison, 68 F.2d 232, 234 (4th Cir. 1934) (citation omitted).
Additionally, a trial court’s authority to grant or deny a motion for new trial based on juror
misconduct furthers the strong policy interests of preserving the finality of jury verdicts and
“protecting jurors from threats and needless harassment from unsuccessful parties.” United States
v. Venske, 296 F.3d 1284, 1291-92 (11th Cir. 2002); see also McDonald v. Pless, 238 U.S. 264,
267 (1915) (recognizing that jurors should be protected from being “harassed and beset by the
defeated party in an effort to secure from them evidence of facts which might establish misconduct
sufficient to set aside a verdict.”). Indeed, “[t]he prevention of fishing expeditions in search of
information with which to impeach jury verdicts is a principal purpose of the rule.” United States
v. Davila, 704 F.2d 749, 754 (5th Cir. 1983) (citing United States v. Riley, 544 F.2d 237, 241 (5th
Cir. 1976)). Although stated in the context of juror misconduct for improper jury deliberations, the
Eleventh Circuit previously explained the importance of protecting jurors from unnecessary
scrutiny post-verdict.
“The essential feature of a jury obviously lies in the interposition between the
accused and his accuser of the commonsense judgment of a group of laymen, and
in the community participation and shared responsibility that results from that
group’s determination of guilt or innocence.” Id. Because our system of justice so
prizes this unique and essential feature of our [] justice system, it both anticipates
and tolerates some level of imperfection in the system. United States v. D’Angelo,
598 F.2d 1002, 1004-05 & n.4 (5th Cir. 1979). As the Supreme Court has explained:
There is little doubt that postverdict investigation into juror
misconduct would in some instances lead to the invalidation of
verdict because concerns such as juror impartiality can be raised and investigated before a verdict is
rendered.” Id. (citing Peña-Rodriguez, 137 S. Ct. at 878 (Alito, J., dissenting); Warger v. Shauers, 574 U.S.
40, 51 (2014)).
27
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 28 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
verdicts reached after irresponsible or improper juror behavior. It is
not at all clear, however, that the jury system could survive such
efforts to perfect it. Allegations of juror misconduct, incompetency,
or inattentiveness, raised for the first time days, weeks, or months
after the verdict, seriously disrupt the finality of the process.
Moreover, full and frank discussions in the jury room, jurors’
willingness to return an unpopular verdict, and the community’s
trust in a system that relies on the decisions of laypeople would all
be undermined by a barrage of postverdict scrutiny of juror conduct.
[Tanner v. United States, 483 U.S. 107, 120-21 (1987)] (internal citations omitted).
Permission to attack jury verdicts by postverdict interrogations of jurors
would allow defendants to launch inquiries into jury conduct in the hope of
discovering something that might invalidate the verdicts against them. “Jurors
would be harassed and beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct sufficient to set aside a
verdict.” Id. at 119-20 (quoting McDonald, 238 U.S. at 267-68). Such events would
result in “the destruction of all frankness and freedom of discussion” in the jury
room. Id. And, as early as 1892, the [United States] Supreme Court expressed
concern that such postverdict investigation would “induce tampering with
individual jurors subsequent to the verdict.” Mattox v. United States, 146 U.S. 140,
149 (1892). In a justice system that depends upon public confidence in the jury’s
verdict, such events are unacceptable.
United States v. Siegelman, 640 F.3d 1159, 1185-86 (11th Cir. 2011) (footnote omitted).
1. Defendant’s Post-Trial Motion
As noted above, Defendant filed the instant Motion seeking a new trial following its postverdict juror investigation, which revealed that Jurors Y.C. and E.S. had failed to disclose their
prior litigation history during jury selection. Plaintiffs responded that Defendant had waived its
right to challenge any juror nondisclosure by failing to exercise reasonable diligence in conducting
its investigation into the jurors’ backgrounds. Specifically, Plaintiffs argued that, because the
parties were given the names and identifying information of each juror prior to the start of trial,
and because the allegedly newly discovered evidence was widely available through public records
searches, Defendant had an obligation to investigate and raise any issues regarding juror
misconduct prior to the jury’s verdict. As Defendant waited until after the jury rendered its verdict
to commence its investigation, Plaintiffs argue that any challenges arising out of that untimely
28
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 29 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
investigation are waived. Moreover, in its Order, this Court declined to address whether Defendant
had waived its claims of juror misconduct because the Court concluded that, regardless of waiver,
the Motion failed on the merits. See Torres, 367 F. Supp. 3d at 1379 n.4. However, upon remand
from the Eleventh Circuit, the Court addresses waiver to provide a more comprehensive review of
the issues raised in Defendant’s Motion.
Upon review of the parties’ briefs and the record in this case, the Court concludes that
Defendant waived its right to challenge the juror nondisclosure by failing to demonstrate that it
acted with due diligence in pursuing its investigation. See Calderon, 127 F.3d at 1351 (on a motion
for new trial based on newly discovered evidence, movants bear “the burden of establishing in
their motions that the evidence was in fact newly discovered and that failure to discover it prior to
verdict was not due to a lack of due diligence” (citing Jones, 597 F.2d at 489)). Indeed, the parties
in this case were provided with the juror questionnaires before trial, and these questionnaires
included each juror’s information. Both parties were given the opportunity to ask questions of each
juror on voir dire. Defendant was also well aware of the amount of damages at issue at trial. As
such, Defendant possessed all of the necessary information to conduct its investigation prior to the
return of the verdict but failed to do so. 18
The timeline of events leading up to Defendant’s Motion, and Defendant’s own
representations in the briefing, are fatal to the issue of waiver. Notably, in an attempt to refute
Courts are “always reluctant to haul jurors in after they have reached a verdict in order to probe for
potential instances of bias, misconduct or extraneous influences.” Morales v. Merco Grp., No. 09-22554CIV, 2011 WL 3666605, at *3 n.1 (S.D. Fla. Aug. 22, 2011) (quoting United States v. Ianniello, 866 F.2d
540, 543 (2d Cir. 1989) (internal quotations omitted)). “[P]ost-verdict inquiries may lead to evil
consequences: subjecting juries to harassment, inhibiting juryroom deliberation, burdening courts with
meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts.”
Id. (quoting Ianniello, 866 F.2d at 543). As such, courts have “consistently refused to allow a defendant to
investigate ‘jurors merely to conduct a fishing expedition.’” Ianniello, 866 F.2d at 543 (quoting United
States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978)); see also Davila, 704 F.2d at 754.
18
29
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 30 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Plaintiffs’ arguments regarding waiver, Defendant submitted the Declaration of Benjamin M.
Esco, who was lead counsel for Defendant at trial in this case. See ECF No. [152-1] (“Esco
Declaration”). Mr. Esco states that he has served as lead counsel in approximately 80-100 civil
jury trials in both state and federal courts. Id. ¶ 3. The Esco Declaration goes on to explain that:
5. The Torres trial resulted in the largest money judgment that has ever been
entered against any defendant(s) whom I have previously represented at trial.
6. I have never previously in my career conducted or requested post-trial
proceedings to question the veracity of any juror or their individual input into a trial
verdict.
7. Based on the verdict’s size in the Torres trial, including the award for
past medical expenses, First Transit retained a private investigative firm to examine
the jurors’ backgrounds on November 9, 2018, one day after the verdict. The report
was received on November 12, 2018.[ 19]
Id. ¶¶ 5-7.
Thus, Mr. Esco’s Declaration makes it abundantly clear that Defendant only sought to
investigate the jurors after it received an unsatisfactory verdict at trial. Critically, it was the size of
the verdict, rather than some well-founded suspicion of juror misconduct, that caused Defendant
to inquire into the jurors’ backgrounds. This is precisely the type of gamesmanship that courts
often caution against when discussing the importance of preserving the finality of verdicts and of
protecting jurors from harassment by unhappy litigants. See Tanner, 483 U.S. at 119-21; see also
McDonald, 238 U.S. at 267-68. As discussed above, the law in this Circuit is clear—a litigant
cannot gamble on the likelihood of a favorable verdict and then challenge that verdict post-trial if
unsuccessful. See Jones, 597 F.2d at 488 n.3 (“[A] defendant cannot learn of juror misconduct
during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-
As noted above, the jury returned its verdict on November 8, 2018, see ECF No. [109], and the Court
entered Final Judgment on November 13, 2018, ECF No. [110]. Then, on December 11, 2018, Defendant
filed its Motion seeking a new trial for juror misconduct. ECF No. [137].
19
30
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 31 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
verdict motion that the verdict was prejudicially influenced by that misconduct.”). 20 Indeed,
“[p]arties cannot put the courts in ‘gotcha’ positions by their lack of due diligence.” United States
v. Feldman, No. 11-CR-20279, 2016 WL 8505087, at *1 (S.D. Fla. Feb. 18, 2016).
On a motion for new trial based on newly discovered evidence, the movant bears the burden
of establishing that the evidence is, in fact, newly discovered. See Calderon, 127 F.3d at 1351
(citing Jones, 597 F.2d at 489). “Newly discovered evidence is evidence that could not have been
discovered with due diligence at the time of trial.” United States v. Beasley, 582 F.2d 337, 339
(5th Cir. 1978). “There is no bright-line rule for determining whether a defendant exercised due
diligence to uncover new evidence.” Feldman, 2016 WL 8505087, at *2. Nevertheless, where a
litigant fails to diligently investigate their claims and raise them in a timely manner, such claims
are deemed to be waived. See, e.g., Bolinger, 837 F.2d at 438-39; Jones, 597 F.2d at 488 n.3;
Edwards, 696 F.2d at 1282; New, 2010 WL 1192308, at *2; Williams v. Marriott Corp., 864 F.
Supp. 1168, 1173 (M.D. Fla. 1994).
Tellingly, Defendant makes no attempt to satisfy this burden in its Motion. Instead,
Defendant simply states that it was entitled to rely on the juror questionnaires without conducting
additional inquiries into the jurors’ backgrounds prior to the return of the verdict and that,
following the return of the jury verdict, Defendant immediately began pursuing its claims.
Likewise, at the evidentiary hearing, Mr. Esco gave the following explanation for why he did not
conduct a public records search prior to the return of the verdict:
I don’t have a laptop. I don’t do that. I don’t—I’m not technologically oriented. But
after this trial, my—Judge, my client did the background check, and I filed them,
of 20-something pages or so on each juror that was done, and that’s what gave us
the information for the motion for new trial. That comprehensive document that
See also Garcia, 476 F.2d at 306 n.2 (explaining that a litigant cannot take his chances on a favorable
verdict and then, if unsuccessful, take a second bite of the apple through post-trial juror misconduct claims);
Upton, 68 F.2d at 234 (same); Edwards, 701 F. Supp. 2d at 1233 (stating that the rules on newly discovered
evidence and waiver prevent the parties from trying to game the system).
20
31
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 32 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
was done by professional investigators[.]
ECF No. [212] at 225.
These arguments are all due to be rejected. While it may be true that Defendant had no
obligation to conduct additional investigations into the jurors to verify their questionnaire answers,
this statement does not relieve Defendant of its burden in moving for a new trial. 21 “In order to
obtain a new trial based on newly discovered evidence, [Defendant] must establish that the
evidence was discovered after trial and that the failure to discover the evidence prior to the jury
verdict was not due to a lack of due diligence.” Stacy, 337 F. App’x at 839 (citing Calderon, 127
F.3d at 1351). Yet, here, despite acknowledging that the evidence of Y.C. and E.S.’s litigation
history was available through public records, see ECF No. [152] at 5-7, Defendant fails to provide
any explanation for why this evidence could not have been obtained prior to the return of the
verdict. Rather, the widespread availability of these public records suggests that Defendant did not
act diligently in raising these juror misconduct issues after trial. See, e.g., United States v. Burke,
724 F. App’x 837, 840-41 (11th Cir. 2018) (noting that the movants had not acted diligently where
the materials attached to the motion for new trial were predominantly public records published
prior to trial); United States v. Cook, 170 F. App’x 639, 640 (11th Cir. 2006) (affirming denial of
new trial motion where defendant “has not shown that he could not have possessed [the] evidence
with reasonable diligence,” and the new evidence was publicly available); United States v. Vallejo,
297 F.3d 1154, 1164 (11th Cir. 2002) (affirming denial of new trial motion where allegedly
withheld public record information could have been obtained through due diligence); United States
Likewise, with regard to Mr. Esco’s statement that he does not have a laptop and he therefore could not
perform the public records search, the Court reiterates that Defendant, as the movant, is required to satisfy
a high burden in order to establish its entitlement to a new trial in this case. See United States v. Spellissy,
346 F. App’x 446, 451 (11th Cir. 2009) (“Indeed, Defendant faces a ‘high burden in demonstrating that a
new trial is warranted.’” (quoting Campa, 459 F.3d at 1151)). This burden is a necessary prerequisite to
obtaining relief on the instant Motion that is unaffected by counsel’s technological capabilities.
21
32
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 33 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
v. Slocum, 708 F.2d 587, 600 (11th Cir. 1983) (concluding that the defendant had not demonstrated
due diligence prior to uncovering the “newly discovered” evidence); Feldman, 2016 WL 8505087,
at *2 (concluding that the defendant had not been diligent where he had ample time to obtain the
“new” evidence and where this evidence was publicly available to the defendant at all times).
Upon review of the record, the Court fails to see how Defendant’s post-trial conduct could
be anything other than an improper attempt to get a second bite of the apple following an
unfavorable jury verdict. Litigants cannot be permitted to circumvent the overarching principles
regarding the sanctity and finality of jury verdicts based solely on their dissatisfaction with the
result at trial. Indeed, courts have condemned litigants’ participation in “planned, systematic,
broad-scale posttrial inquisition[s] of the jurors,” and have found such efforts to be
“reprehensible.” See Ianniello, 866 F.2d at 544-45 (quoting United States v. Brasco, 516 F.2d 816,
819 n.4 (2d Cir. 1975)). In light of the clear and explicit guidance from the Supreme Court
regarding the balance of interests in post-verdict proceedings, it would be untenable to conclude
that Defendant has not waived its juror misconduct challenges, which were only raised because
Defendant was dissatisfied with the size of the jury verdict. Accordingly, the Court finds that
Defendant waived the instant challenges to Y.C. and E.S.’s litigation history, and the jury’s verdict
and resulting judgment, because Defendant failed to diligently investigate and present these claims
to the Court prior to the return of the verdict. 22
2. Proceedings on Remand
As discussed above, following remand from the Eleventh Circuit, this Court held a status
conference to discuss the relevant procedures for the evidentiary hearing. See ECF No. [184].
During this status conference, Defendant sought leave to supplement the record with additional
In the interests of completeness, the Court will nevertheless address the substantive issues raised in the
Motion below.
22
33
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 34 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
documents regarding Y.C.’s and E.S.’s litigation history that were obtained during a supplemental
investigation into these jurors in preparation for the evidentiary hearing. However, the Court
cautioned the parties that the scope of the evidentiary hearing would be limited to those legal
proceedings that were originally raised in Defendant’s Motion. Id. at 10-14. Moreover, pursuant
to this Court’s order, Defendant timely filed the supplemental evidence for the Court to review.
See ECF Nos. [187] & [188].
On February 12, 2021, the Court held another status conference to discuss the relevance of
these supplemental documents, among other things. See ECF No. [200]. The Court reiterated that
the scope of the evidentiary hearing would be limited to those civil lawsuits that were originally
cited in Defendant’s Motion and noted that many of the records and documents Defendant
submitted were not relevant to the Court’s inquiry because they had not been presented with the
initial Motion. Id. at 10-15. These additional documents included, among others, a felony
conviction allegedly against E.S. from 1985, see ECF No. [187-1] at 43-60, and a debt collection
lawsuit allegedly filed against Y.C. in 2019—after the conclusion of the trial in this case, see ECF
No. [188-5] at 2-86. These supplemental records were beyond the scope of Defendant’s original
Motion, this Court’s Order, and the appeal to the Eleventh Circuit, and were therefore not allowed
to be introduced during the evidentiary hearing. Nevertheless, Defendant repeatedly renewed its
request to question the jurors about these additional lawsuits, which the Court denied. See, e.g.,
ECF Nos. [196] & [202]; ECF No. [212] at 6-13, 107-08.
“The question [of] whether to reopen the record on remand is ‘left to the sound discretion
of the trial court.’” Cambridge Univ. Press v. Albert, 906 F.3d 1290, 1302 (11th Cir. 2018)
(quoting Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 551 (1983)). Pursuant to that
discretionary authority, the Court concluded that it would be inappropriate to admit new evidence
34
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 35 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
of additional legal proceedings against Y.C. and E.S., “offered years after the close of the trial and
entry of the judgment and after review by the Court of Appeals.” Id. Although Defendant still
contends that it should have been permitted to introduce this evidence at the evidentiary hearing
and to question the jurors on these additional materials, Defendant has not provided the Court with
any compelling reason to reopen the record in this case to introduce additional evidence three years
later, nor has the Court found any. See Berenguela-Alvarado v. Castanos, 820 F. App’x 870, 874
(11th Cir. 2020) (concluding that district court acted well within its sound discretion in denying a
request to reopen the record where the movant had ample opportunity to present the “new”
evidence during the original proceedings).
Additionally, regarding the 1985 felony conviction allegedly against E.S., the Court
concludes that Defendant waived its opportunity to challenge this conviction, as the conviction
could have been presented in the original Motion had Defendant exercised due diligence. See id.;
see also Cambridge Univ. Press, 906 F.3d at 1302 (explaining that the movants were or should
have been aware that this “new” evidence was relevant at the time of the original proceedings).
Likewise, regarding legal proceedings that arose after Y.C.’s jury service in this case, this evidence
is entirely irrelevant to her mental impressions and motives in answering the jury selection
questions at the time of trial. See Jacob E. Decker & Sons, 569 F.2d at 364 (stating that newly
discovered evidence discovered after trial must nonetheless have been in existence at the time of
the trial). Therefore, Defendant waived the right to raise any alleged claims of juror misconduct
against Y.C. and E.S.’s regarding this supplemental evidence.
B. Juror Misconduct
The Supreme Court has long held that a litigant “‘is entitled to a fair trial but not a perfect
one,’ for there are no perfect trials.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
35
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 36 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
553 (1984) (quoting Brown v. United States, 411 U.S. 223, 231-32 (1973)). “Trials are costly, not
only for the parties, but also for the jurors performing their civic duty and for society which pays
the judges and support personnel who manage the trials.” Id. Moreover, the Supreme Court has
stated that one touchstone of a fair trial is an impartial trier of fact, i.e., “a jury capable and willing
to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982).
“Voir dire examination serves to protect that right by exposing possible biases, both known and
unknown, on the part of potential jurors,” and “[t]he necessity of truthful answers by prospective
jurors . . . is obvious.” McDonough Power Equip., Inc., 464 U.S. at 554.
As such, the Supreme Court has enunciated the applicable standard for determining when
juror responses during voir dire warrant a new trial: (1) “a party must first demonstrate that a juror
failed to answer honestly a material question on voir dire,” and (2) they must “further show that a
correct response would have provided a valid basis for a challenge for cause.” Id. at 556. 23 While
“[t]he motives for concealing information may vary, [] only those reasons that affect a juror’s
impartiality can truly be said to affect the fairness of a trial.” Id.
“The first prong of the McDonough test requires a determination of whether the juror’s
answers were honest, ‘that is, whether he was aware of the fact that his answers were false.’”
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1473 (11th Cir. 1992) (quoting
United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir. 1984)). Stated differently, this prong
hinges on the intentional dishonesty of a juror’s response, rather than on a “mistaken, though
honest, response to a question.” United States v. Carpa, 271 F.3d 962, 966 (11th Cir. 2001).
“Often, the juror’s dishonesty in and of itself is ‘a strong indication’ that she was not impartial.”
McWhorter v. Comm’r, Ala. Dep’t of Corr., 824 F. App’x 773, 782 (11th Cir. 2020) (citing
This standard has been applied to allegations of juror misconduct in both civil and criminal cases. See
United States v. O’Neill, 767 F.2d 780, 785 (11th Cir. 1985).
23
36
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 37 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
Perkins, 748 F.2d at 1532).
Additionally, the second prong of the McDonough test “requires a showing of actual bias.”
BankAtlantic, 955 F.2d at 1473 (citing Perkins, 748 F.2d at 1532; United States v. Casamayor,
837 F.2d 1509, 1515 (11th Cir. 1988)). “Actual bias may be shown in two ways: ‘by express
admission or by proof of specific facts showing such a close connection to the circumstances at
hand that bias must be presumed.’” Perkins, 748 F.2d at 1532 (quoting United States v. Nell, 526
F.2d 1223, 1229 (5th Cir. 1976)). Presumed bias, which is a fact specific, exists where “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.” Nell, 526 F.2d at 1229 & n.8.
Defendant argues that a new trial is warranted because Juror Y.C. and Juror E.S. each failed
to disclose his/her significant litigation history during jury selection. Specifically, Defendant notes
that, before being selected to serve on the jury in this case, Y.C. was a named party in seven prior
lawsuits involving debt collections actions and foreclosures, and E.S. was a named party in five
separate lawsuits relating to debt collections actions, foreclosures, and a personal bankruptcy.
Defendant argues that both jurors intentionally and dishonestly concealed this information during
jury selection. Defendant further contends that neither Y.C. nor E.S. could fairly and impartially
serve as jurors because this case involved significant collections issues relating to Plaintiffs’
hospital bills. Rather, Defendant states that bias must be presumed based on Y.C. and E.S.’s
extensive litigation histories, which involved some type of debt. Defendant therefore requests a
new trial. Plaintiffs take the contrary position, arguing that both jurors adequately explained their
mistaken, but honest understanding of the questions posed to them during jury selection and there
was no evidence of bias on either juror’s part. The Court will address each prong of the
McDonough test below.
37
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 38 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
1. Dishonesty
As discussed above, the first prong of the McDonough test “requires a determination of
whether the juror’s answers were honest.” Carpa, 271 F.3d at 967 (citing BankAtlantic, 955 F.2d
at 1473). “[T]he honesty or dishonesty of a juror’s response is the best initial indicator of whether
the juror in fact was impartial.” Perkins, 748 F.2d at 1532.
Regarding Juror Y.C., the Court concludes that she gave honest answers during jury
selection. Indeed, having had the opportunity to speak directly with Y.C. and to closely observe
her demeanor throughout her testimony, the Court finds that her explanations regarding the
truthfulness of her answers and her understanding of the term “lawsuit” were credible. The Court
also concludes that her mistaken understanding of what was encompassed within the term
“lawsuit” was reasonable. See McDonough Power Equip., Inc., 464 U.S. at 555 (“The varied
responses to [] question[s] on voir dire testify to the fact that jurors are not necessarily experts in
English usage. Called as they are from all walks of life, many may be uncertain as to the meaning
of terms which are relatively easily understood by lawyers and judges.”). Indeed, it was apparent
from her testimony that Y.C. provided what she understood to be honest, albeit inaccurate, answers
to the questions posed during jury selection based on her understanding at that time. Cf. Perkins,
748 F.2d at 1532 (concluding that the juror was dishonest where his conduct went beyond mere
nondisclosure, and involved his concealment of the fact that he knew the defendant, his past
involvement in similar, lengthy litigation, and his inconsistent recollections of relevant facts).
At the evidentiary hearing, Y.S. acknowledged that she had made a mistake in her answers
during jury selection but stated that the error was unintentional and was based on her understanding
that a lawsuit “involved someone getting hurt.” (“I thought lawsuits were only cases where—
where people were seeking compensation for pain and suffering, and – like in a car accident or an
38
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 39 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
accident at work, someone getting hurt.”). See ECF No. [212] at 90, 22. She was credible and the
Court credits her responses as earnest and truthful. It is also worth noting that neither the record
nor Y.C.’s testimony reveals any nefarious or improper motive for the nondisclosure. In the
absence of any evidence demonstrating that Juror Y.C. purposefully withheld information about
her prior litigation history, the Court concludes that her answers during jury selection were not
intentionally dishonest. See United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997)
(affirming denial of motion for new trial, and agreeing with the district court that it would be
speculative to assume the juror’s responses to voir dire were dishonest based solely on his
nondisclosure).
Next, regarding E.S., the Court also finds that his responses during jury selection were
truthful, given his understanding of what a lawsuit was at the time. As with Juror Y.C., the Court
spoke at length with E.S. during the evidentiary hearing and observed his general demeanor and
manner of responding to the questions posed. Based on these observations, his testimony, and the
evidence in the record, the Court finds Juror E.S. to be credible. In particular, E.S. explained that
at no point during jury selection did he make any connection between his prior litigation history
and the instant case. See ECF No. [212] at 130-01, 134, 169, 184-85. In fact, E.S. consistently
testified that he did not believe that his prior cases were lawsuits because they all involved sums
of money that he owed and ultimately paid. See id. at 128, 136, 144-45, 169, 184-85. He explained
that he believed a lawsuit “would be more criminal, you know, it would be something important.”
Id. at 118-19. Likewise, the Court is satisfied that E.S.’s incorrect answers during jury selection
were reasonably based upon his misunderstanding of what constituted a lawsuit. See New v.
Darnell, 409 F. App’x 281, 283 (11th Cir. 2011) (finding that juror “could have reasonably
concluded that he was not covered by the [] questions,” and that “the district court could have
39
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 40 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
reasonably concluded that [his] answers were true or that any failure to disclose additional
information was inadvertent”). Accordingly, E.S.’s testimony and general demeanor during the
evidentiary hearing, coupled with the explanations he provided for why he failed to disclose his
prior litigation history, support the Court’s conclusion that “these were most likely innocent
omissions, due to not remembering or not understanding the full scope of the question, rather than
some nefarious attempt to gain the trust of [Defendant’s] counsel so he would be chosen for the
jury [despite] to his bias[.]” Suppa v. Costa Crociere, S.p.A., No. 07-60526-CIV, 2008 WL
3926446, at *4 (S.D. Fla. Aug. 26, 2008).
In sum, the Court finds that neither juror was intentionally dishonest in their answers on
the questionnaire or during voir dire. Because Defendant failed to satisfy the first prong of the
McDonough test, the Court does not need to address the issue of actual bias. Nevertheless, as
discussed below, Defendant has also failed to establish actual bias related to either Y.C. or E.S.
2. Actual Bias
Upon satisfying the dishonesty prong of the McDonough test, “there must [then] be a
showing of bias that would disqualify the juror.” Carpa, 271 F.3d at 967 (citing BankAtlantic, 955
F.2d at 1473); see also McDonough Power Equip., Inc., 464 U.S. at 556 (explaining that the second
prong requires a showing that a “correct response would have provided a valid basis for a challenge
for cause”). “Bias 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 (citing BankAtlantic, 955 F.2d at 1473). 24
24
The Eleventh Circuit recently reiterated a movant’s burden when attempting to show actual bias:
To exclude a prospective juror for cause, a party must demonstrate that the juror in question
exhibited “actual bias” by showing either an “express admission of bias or facts
demonstrating such a close connection to the present case that bias must be presumed.”
United States v. Chandler, 996 F.2d 1073, 1102 (11th Cir. 1993) (citing United States v.
40
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 41 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
As an initial matter, the Court notes that neither Y.C. nor E.S. has made any sort of express
admission of bias in this case. Rather, Defendant contends that the Court must presume Y.C.’s and
E.S.’s bias from their dishonest answers during jury selection and from their extensive histories of
collections actions. Upon review, however, the Court concludes that Defendant has not established
that Y.C. or E.S. was biased.
First, as discussed in the preceding section, the Court has concluded that neither juror was
dishonest in their answers during jury selection. Rather, Y.C. and E.S. presented credible and
compelling testimony explaining that their answers were founded upon their mistaken but honest
understanding of the questions posed. Further, the Eleventh Circuit has stated that “the honesty or
dishonesty of a juror’s response is the best initial indicator of whether the juror in fact was
impartial,” Perkins, 748 F.2d at 1532, and these jurors’ honesty during jury selection weighs
heavily against Defendant’s argument regarding actual bias.
Additionally, contrary to Defendant’s argument, Y.C. and E.S.’s prior collections actions
and overall litigation history were not so closely connected to the circumstances of this case such
that bias must be presumed. Notably, during the evidentiary hearing, both jurors explicitly denied
making any connection between this case, including any potential collections issues relating to this
case, and their own prior litigation history. Defendant has not submitted any evidence that would
call the jurors’ statements into question on this point.
Assuming for the sake of analysis that [Defendant has] satisfactorily demonstrated
Khoury, 901 F.2d 948, 955, modified, 910 F.2d 713 (11th Cir. 1990)). The burden is on the
challenger to show that the prospective juror was actually biased, having a “preconceived
notion as to the guilt or innocence of an accused” of such “nature and strength” that “the
juror [could not] lay aside his impression or opinion and render a verdict based on the
evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961). Whether an
individual juror is biased is a question of fact. Patton v. Yount, 467 U.S. 1025, 1036-37
(1984).
Teasley v. Warden, Macon State Prison, 978 F.3d 1349, 1356 (11th Cir. 2020).
41
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 42 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
that the two jurors did not provide accurate and honest answers during voir dire,
[Defendant has] still failed to demonstrate the jurors’ actual bias. [Defendant has]
not identified any express admissions by the two jurors of bias against people
similarly situated to [Defendant]. And the jurors’ allegedly undisclosed
bankruptcies, foreclosures, and [] mortgage transactions, if true, would not
demonstrate such a close connection to the [personal injury issues] of this case that
bias could be presumed. In short, [Defendant has] not proven that the Court should
have struck the two jurors for cause; therefore, [Defendant is] not entitled to a new
trial on the basis of juror misconduct.
United States v. Burke, No. 13-CR-20616, 2016 WL 7665899, at *3 (S.D. Fla. Oct. 4, 2016), aff’d,
724 F. App’x 837 (11th Cir. 2018); see also BankAtlantic, 955 F.2d at 1473 (concluding that the
jurors were neither biased nor closely connected to the case or to either party where the movant
provided no specific facts that would create a presumption of bias and no evidence that the jurors
felt compelled to misrepresent themselves, that they knew either party, that they were ever
involved in similar litigation, or that they had a motive to conceal information just to get on the
jury and find against the movant). Likewise, both Y.C. and E.S. testified that they harbored no
biases for or against either party in this case in connection with their past lawsuits, and explained
that they have positive perceptions of the legal system and were able to be fair and impartial jurors
during the trial in this case.
In its Order Denying the Defendant’s Motion for New Trial and for Remittitur, the Court
assumed that the Jurors’ answers on the juror questionnaire were dishonest, in order to further analyze
the second prong of bias, ultimately concluding that bias was not demonstrated. See ECF No. [155] at
5-6. Upon remand, and with the benefit of a full evidentiary hearing, a wholesome record, and
credibility determinations, the Court concludes that Defendant has failed to demonstrate actual bias
on the part of Y.C. or E.S., nor has it successfully presented any specific facts showing such a
close connection to the litigation at hand such that bias must be presumed. Having failed to satisfy
either prong of the McDonough test, the Court concludes that Defendant’s Motion must be denied.
42
Case 9:17-cv-81162-BB Document 215 Entered on FLSD Docket 08/03/2021 Page 43 of 43
Case No. 17-cv-81162-BLOOM/Reinhart
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant First Transit, Inc.’s
Motion for New Trial and Remittitur, ECF No. [137], is DENIED. 25
DONE AND ORDERED in Chambers at Miami, Florida, on August 3, 2021.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Although the Eleventh Circuit vacated this Court’s Order and remanded the case for an evidentiary
hearing, the Court notes that it analyzed the alternative request for remittitur and denied relief on that basis
as well. See Torres, 367 F. Supp. 3d at 1380-82. As such, to the extent that the Order was vacated in its
entirety, the Court readopts and incorporates its reasoning on the remittitur issue here.
25
43
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?