MAZZOUCCOLO v. GARDNER McLAIN PERLMAN (1998)

Appellants, Lucille Mazzouccolo ¹ and her husband, sued appellees for medical malpractice.   The jury returned a defense verdict.   The trial court awarded appellees attorney's fees and costs pursuant to section 768.79, Florida Statutes (1995).   The Mazzouccolos appeal the final judgment confirming the jury verdict and awarding appellees fees and costs.   We affirm.

 During voir dire, defense counsel used three peremptory strikes on women.   Plaintiffs' counsel made a timely, gender-based objection.   See State v. Holiday, 682 So.2d 1092 (Fla.1996).   Unaware that the same procedures apply to gender-based challenges as to race-based challenges, the trial court did not require defense counsel to articulate a gender-neutral reason for the strikes.   Defendants' lawyer refused to voluntarily supply a gender-neutral reason for the strikes for fear that it would disclose her trial strategy.   However, plaintiffs' attorney ultimately accepted the jury without renewing his gender-based objection or conditioning his acceptance of the jury on the previous objection.   By such unqualified acceptance of the jury, plaintiffs failed to preserve this issue for appellate review.   See Franqui v. State, 699 So.2d 1332 (Fla.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1337, 140 L.Ed.2d 499 (1998);  cert. denied, 523 U.S. 1097, 118 S.Ct. 1582, 140 L.Ed.2d 797 (1998);  Joiner v. State, 618 So.2d 174 (Fla.1993);  Thomas v. State, 700 So.2d 407 (Fla. 4th DCA 1997);  Watson v. Gulf Power Co., 695 So.2d 904 (Fla. 1st DCA 1997).

 Plaintiffs also challenge the trial court's denial of their motion for a new trial and refusal to allow them to conduct a post-trial interview with juror Donald Crow. They contend that the juror had failed to disclose a previous malpractice case that had been filed against the Visiting Nurse Association (VNA) and other defendants during the time when the juror was the VNA's chief operating officer.

To determine whether juror concealment during voir dire warrants a new trial, a court must apply the three part test of De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995):

First, the complaining party must establish that the information is relevant and material to jury service in the case.   Second, that the juror concealed the information during questioning.   Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence.

Plaintiffs have failed to satisfy the third prong of the test.   They never squarely asked for the concealed information.   Cf. Bernal v. Lipp, 580 So.2d 315, 316 (Fla. 3d DCA 1991).   The questions Crow answered on the juror questionnaire and during voir dire were directed at whether he or a member of his immediate family had ever been a party to a lawsuit or made a claim for personal injury.   Crow responded to the questions asked of him by disclosing his or his family's experience with litigation or injury claims.   Cf. Wilcox v. Dulcom, 690 So.2d 1365 (Fla. 3d DCA 1997).   There were no broad questions calling for “experiences ․ where lawyers were involved” or any indirect involvement in a lawsuit, such that Crow can be said to have concealed information called for generally.   Cf. Castenholz v. Bergmann, 696 So.2d 954, 955 (Fla. 4th DCA 1997).   Crow disclosed his relationship with the VNA, an organization that has ongoing relationships with physicians;  significantly, the VNA is a potential target of malpractice claims, since they supply home health care to patients.   Plaintiffs' counsel did not follow up with any questions probing whether the VNA had been involved in litigation during Crow's association with it.

We find no abuse of discretion in the trial court's finding that appellees satisfied the “good faith” requirement of section 768.79(7)(a), Florida Statutes (1995).   See TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 613 (Fla.1995);  Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993).   Although we might have arrived at different numbers than the trial court, we do not find any abuse of discretion in the amounts awarded for fees and costs.   See Mathias v. Uniroyal, Inc., 660 So.2d 742 (Fla. 3d DCA 1995).

AFFIRMED.

FOOTNOTES

1.   Due to the death of Lucille Mazzouccolo during the pendency of this appeal, the personal representative of her estate has been substituted as a party appellant.

GROSS, Judge.

STONE, C.J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.