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News Room

Judge’s Failure to Exercise Gatekeeping Function in Admitting Expert Testimony * Third Party Beneficiary Doctrine Does Not Bind Resident to Arbitration Clause * Social Media and Juror Misconduct

Dear Ladies/Gentlemen:

This month we would like to share with you some recent opinions of the Florida District Courts of Appeal and Florida Supreme Court, which may be of interest to you.

In Crane Co. v. Delisle, the Fourth District Court reversed and remanded a Florida Circuit Court’s judgment and held that the trial court abused its discretion in admitting expert testimony.

In Mendez v. Hampton Court Nursing Center, the Supreme Court of Florida found that the third party beneficiary doctrine did not bind a nursing home resident to an arbitration clause in an admission agreement when the nursing home resident neither signed nor otherwise agreed to the contract

In Murphy v. Roth, the Third District Court of Appeal found that the Plaintiff was not entitled to a new trial on the ground that a juror engaged in misconduct by posting comments on social media in violation of court’s instruction where comments contained in said juror’s tweets were determined to be not prejudicial to Plaintiff. Additionally, the appellate court, held that the trial court properly found that the juror’s failure to disclose on voir dire that he and his father had been involved in an accident was not material, and not a basis for new trial.

 Crane Co. v. DeLisle, 4D13-4351, 2016 WL 6658470, at *1 (Fla. 4th DCA Nov. 9, 2016)

Facts & Procedural History

After developing mesothelioma, DeLisle filed a personal injury action against sixteen defendants claiming that each caused him to be exposed to asbestos. He alleged negligence and strict liability under failure-to-warn and design-defect theories.  At trial, DeLisle presented evidence that he was exposed to asbestos fibers from sheet gaskets while at his place of employment. In addition, DeLisle testified that he smoked Original Kent cigarettes with asbestos-containing “Micronite” filters from 1952 to 1956. The parties hotly disputed causation, and DeLisle introduced the causation expert opinions of several doctors, who opined that regardless of product, fiber type, and dose, every exposure would be considered a contributing factor to DeLisle’s mesothelioma. Defendants challenged each expert’s opinions under section 90.702, Florida Statutes, which has adopted the Daubert test for expert testimony. Nevertheless, following Daubert hearings, the trial court admitted each expert’s testimony. Following three days of deliberation, the jury awarded DeLisle $8 million in damages and apportioned fault amongst the defendants. Defendants appeal the verdict and challenge the $8 million award as excessive. DeLisle cross-appeals regarding the inclusion of one the defendants as a Fabre defendant.

Appellate Proceeding

On appeal, the Fourth District Court of Appeal found that the trial court failed to properly exercise its gatekeeping function by excluding evidence unless it was reliable and relevant as to three of DeLisle’s expert witnesses. Moreover, the appellate court found that the trial court did not properly exercise its discretion in accepting as an expert a medical doctor who was the sole witness to testify that exposure to low levels of chrysotile asbestos through one of defendant’s products was the substantial cause of DeLisle’s mesothelioma. In assessing whether an expert’s methodology is reliable, the court should consider the following factors: (1) whether the theory “can be (and has been) tested; (2) whether it “has been subjected to peer review and publication”; (3) “the known or potential rate of error” for a “particular scientific technique”; and (4) whether the “theory or technique has been generally accepted by the relevant scientific community.” Here, the record did not support a finding that this witness’s opinions were supported by sufficient data and peer-reviewed studies or based upon reliable principles and methods under proper Daubert analysis. An expert opinion is inadmissible when the only connection between the conclusion and the existing data is the expert’s own assertions.  The trial court’s gatekeeping role is not a passive role; the court should affirmatively prevent imprecise, untested scientific opinion from being admitted. Additionally, the expert must identify those studies and explain how they support the application of the methodology used. In the present case, the appellate court held that the defendants were entitled to a new trial where experts who testified regarding causative link between DeLisle’s illness and asbestos-consisting filters used on certain brand of cigarettes purportedly smoked by DeLisle failed, in part to demonstrate reliable opinions and failed to support their opinions with reliable data. To properly perform its gatekeeping function, the court must first determine that the expert is “qualified on the matter about which he intends to testify”; second, that the expert is employing “reliable methodology” and third, that the expert’s testimony can “assist the trier of fact through the application of expertise to understand the evidence or fact in issue.”

 Mendez v. Hampton Court Nursing Ctr., LLC, 41 Fla. L. Weekly S394 (Fla. Sept. 22, 2016)

Facts & Procedural History

Juan Mendez, Jr. (the “son”), as personal representative of the estate of Juan Mendez, Sr. (the “father”), sought review of the decision of the Third District Court of Appeal. In the present case, Hampton Court Nursing Center admitted the father to its nursing facility in 2009. At that time, the son signed a nursing home contract with Hampton Court, providing for the father’s residency and care at Hampton Court. The contract included an arbitration clause; the father did not sign the contract. While under Hampton Court’s care in 2011, the father developed an eye infection that eventually required the removal of his left eye. In 2012, the son filed suit on the father’s behalf in the Circuit Court for the Eleventh Judicial Circuit, alleging negligence and statutory violations. Hampton Court moved to compel arbitration and stay the judicial proceedings. The Circuit Court heard argument and granted the motion. The father appealed, but passed away while the appeal was pending.

Appellate Proceeding

On appeal from the trial court’s order, the Third District Court of Appeal affirmed citing Alterra Healthcare Corp. v. Estate of Linton, and held that the father was the intended third-party beneficiary of the nursing home contract, and accordingly, Hampton Court could bind him to its contract even though he never signed it. However, despite the Hampton Court adopting the rule of Mendez and Alterra Healthcare, which signifies that under the third-party beneficiary doctrine, a nursing home resident may be bound by a contract to which the resident never agrees, the Supreme Court of Florida disagreed citing that the doctrine of third-party beneficiaries provides that under certain circumstances, a person may sue to enforce a contract, even though the person is not a party to the contract. Furthermore, “To establish an action for breach of a third party beneficiary contract, [the third-party beneficiary] must allege and prove the following four elements: ‘(1) existence of a contract; (2) the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party; (3) breach of the contract by a contracting party; and (4) damages to the third party resulting from the breach.’” Critically, the third-party beneficiary doctrine enables a non-contracting party to enforce a contract against a contracting party—not the other way around. “Third persons who are not parties to an arbitration agreement generally are not bound by the agreement.” Notwithstanding that principle, the district courts disagree on whether a nursing home resident is bound by an arbitration clause in a nursing home contract, when the resident neither signed nor otherwise agreed to the contract. In the present case, the Supreme Court held that the nursing home resident is not bound by an arbitration clause in a nursing home contract signed by the resident’s son where the resident neither signed nor otherwise agreed to the contract. The nursing home resident may not be bound to a contract to which the resident never agreed under third-party beneficiary doctrine. The third party beneficiary doctrine does not permit two parties to bind a third party without the third party’s agreement merely by conferring a benefit on the third party.

Murphy v. Roth, 41 Fla. L. Weekly D2282 (Fla. 4th DCA Oct. 5, 2016)

Facts & Procedural History

Plaintiff brought suit against Defendant, claiming that she sustained injuries due to Defendant’s negligent operation of his vehicle. Issues of liability and damages were hotly contested. At trial, Plaintiff claimed that she was hit from behind by a phantom car, causing her to swerve and lose control, and that she was then hit in the front by Defendant’s car and forced off the road. Defendant claimed that Plaintiff struck his car on the rear passenger side, skewing his car to the right, and then hit the front right side of his car, sending him spinning off the road.

At the beginning of voir dire, the trial court instructed the jurors not to communicate via any communication medium with anyone, including friends and family members about the case or their jury service. Additionally, during voir dire, the trial court inquired whether anyone had been involved in a similar situation. Ultimately, the jury returned a $39,000 verdict for past and future medical expenses and apportioned liability, 60% to Plaintiff and 40% to Defendant. Because the jury did not find that Plaintiff had suffered a permanent injury, no damages for pain and suffering were awarded. Then, Plaintiff filed a motion for juror interview based on newly discovered evidence, wherein she contended that her right to a fair and impartial jury was compromised by a juror (the “Juror”). Plaintiff also filed a motion for new trial incorporating, by reference, her motion for juror interview. In support of these motions, Plaintiff alleged that the Juror posted a series of tweets on his Twitter account during the days of jury selection and trial. The trial court granted the motion for juror interview, where the Juror admitted that the Twitter account in question, although titled under a pseudonym, was his and that he posted all of the tweets at issue. After conducting what would be the fourth post-trial hearing on this case, the trial court denied Plaintiff’s motion and declined to take any action against the Juror. Thereafter, the trial court entered a final judgment in favor of Plaintiff for $27,535.17 from which this appeal was taken.

Appellate Proceeding

On appeal, at the Third District Court of Appeal, Plaintiff argued that the comments posted within Juror’s tweets showed not only a disdain for the court system and his jury service but also a clear bias against Plaintiff which, when coupled with his failure to disclose a recent accident involving him and his father, deprived Plaintiff of the right to a fair and impartial jury. Oppositely, Defendant argued that Juror’s tweets do not amount to prejudicial misconduct and that Plaintiff cannot, on this record, establish that she is entitled to a new trial based on the nondisclosure of the recent accident.

Although no Florida court has directly addressed the issue of juror misconduct arising from the use of social media during a trial, in United States v. Fumo, the Third Circuit held that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial on the basis of a juror’s comments about the trial on Facebook and Twitter because the comments were “nothing more than harmless ramblings having no prejudicial effect.”  The Third Circuit explained that “while prohibiting and admonishing jurors from commenting—even obliquely—about a trial on social networking websites and other internet mediums is the preferred and highly recommended practice, it does not follow that every failure of a juror to abide by that prohibition will result in a new trial.” Rather, courts should determine if the complaining party was “substantially prejudiced.”

In denying Plaintiff’s motion for a new trial and taking no action against Juror, the trial court necessarily credited and accepted Juror’s explanation that this misconduct was neither intentional nor willful, and that none of his tweets related specifically to this case. While Juror’s tweets are potentially offensive on a number of levels, the trial court acted within its discretion to interview Juror, assess his credibility and, in doing so, deny Plaintiff’s motion for a new trial based thereon.

With regard to the alleged bias against Plaintiff, concerning the Juror’s tweet that “[e]veryone is so money hungry that they’ll do anything for it” demonstrates that he was biased against Plaintiff, the appellate court found that the trial court clearly credited Juror’s testimony that the “money hungry” post was not about Plaintiff or the trial in this case. Moreover, during voir dire, Juror expressed similar opinions that some people sue “just for the money” or for “dumb reasons,” and that there were probably more frivolous lawsuits than there should be. Thus, Juror’s mid-trial tweet that “everyone is so money hungry” was found to be consistent with the views he had expressed in voir dire—hence, no argument can be made that there was any prejudice to Plaintiff based on this tweet.

Additionally, Plaintiff contended that she is entitled to a new trial because Juror lied during voir dire by failing to disclose a recent accident involving him and his father. However, for a juror’s nondisclosure of information during voir dire to warrant a new trial, the complaining party must establish that: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence. Under De La Rosa, 659 So.2d 239, 241 (Fla. 1995), the burden is on the moving party to prove entitlement to a new trial on the basis of juror nondisclosure. Under the first prong of De La Rosa, “the complaining party must establish not only that the nondisclosed matter was ‘relevant’—as all prior litigation history is—but also that it is ‘material to jury service in the case.’” There is no “bright line” test for determining materiality, and thus “materiality must be based on the facts and circumstances of each case.” “Omitted information has been considered relevant and material where it implies a bias or sympathy for the other side which in all likelihood would have resulted in the use of a peremptory challenge.”

In the present case, the record is insufficient to establish that the Juror’s nondisclosure of the accident with his father was material. Because the trial court questioned the Juror extensively, the trial court was in the best position to determine both the credibility of the Juror and any prejudice to Plaintiff as a result thereof. Under the second prong of De La Rosa, “information is considered concealed for purposes of the three part test where the information is ‘squarely asked for’ and not provided.” “Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party.” Because there is insufficient record evidence to establish the first prong of De La Rosa, the Third District Court of Appeal declined to address the second and third, and affirmed the final judgment and the order denying Plaintiff’s motion for new trial.

We hope that you found the aforementioned cases both helpful and insightful. Thank you for the opportunity to share these recent case opinions with you.

Very truly yours,



  Brandon Linder Jersey