Opinion
Case No. 19-24048-CIV-WILLIAMS
2022-08-31
Jane DOE, Plaintiff, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Defendant.
Jason Bennett Sherry, Sherry Law Office PLLC, Miami, FL, Mark A. Schweikert, Schweikert Law PLLC, Miami, FL, for Plaintiff. Alexandra Valdes, Sheila Mae Gonzales, Cole, Scott & Kissane, P.A., Miami, FL, Michael A. Rosenberg, Cole, Scott, Kissane, P.A., Plantation, FL, for Defendant.
Jason Bennett Sherry, Sherry Law Office PLLC, Miami, FL, Mark A. Schweikert, Schweikert Law PLLC, Miami, FL, for Plaintiff. Alexandra Valdes, Sheila Mae Gonzales, Cole, Scott & Kissane, P.A., Miami, FL, Michael A. Rosenberg, Cole, Scott, Kissane, P.A., Plantation, FL, for Defendant. ORDER KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Defendant's Amended Motion for New Trial. (DE 143.) Plaintiff has filed a response (DE 144), to which Defendant filed a reply (DE 146). For the reasons set forth below, Defendant's Motion is DENIED.
I. BACKGROUND
This action arises from the charge of a minor student, Jane Doe, that she was sexually assaulted by a teacher while she attended Miami Palmetto Senior High School (" Palmetto "). Doe alleged that while she was a student at Palmetto in 2015 and 2016, her teacher at that time, Jason Meyers, groomed her and ultimately engaged in sexual activity with her inside his classroom. (DE 13 ¶ 1.) Prior to Meyers' employment as a teacher at Palmetto, Meyers was a teacher at another high school, Dr. Michael M. Krop Senior High School (" Krop "). Doe alleged that while Meyers taught at Krop, prior to his transfer to Palmetto, Meyers sexually abused female students there. (Id. at ¶ 12-17.) Both high schools are within the same school system and are both governed by Defendant The School Board of Miami-Dade County, Florida (" School Board "). Doe alleged that during Meyers' tenure at Krop, a current student and a former student made complaints in 2008 and 2010 to administrators about Meyers' actions. Despite these complaints, the School Board permitted Meyers to continue teaching and to transfer to Palmetto in 2011.
After an unsuccessful mediation and a settlement conference, held by Chief Magistrate Judge Edwin G. Torres, this case proceeded to trial from September 27, 2021 through October 1, 2021. The jury found for Plaintiff on her claim against Defendant. Defendant now moves for a new trial and/or remittitur on three grounds: 1) various incorrect evidentiary rulings; 2) the exclusion of unvaccinated jurors; and 3) the sizable verdict.
II. LEGAL STANDARD
Rule 59 of the Federal Rules of Civil Procedure states, in relevant part, that a district court may grant a new trial "on all or some of the issues . . . 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 party may move for a new trial on a number of bases, including that "the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury." Slip-N-Slide Recs., Inc. v. TVT Recs., LLC, No. 05-21113-CIV, 2007 WL 3232274, at *2 (S.D. Fla. Oct. 31, 2007) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940)).
In reviewing a motion for a new trial, the judge is "free to weigh the evidence." Rosenfield v. Wellington Leisure Prod., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987) (quoting Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1060 (11th Cir. 1982)). "[W]hen independently weighing the evidence, the trial court is to view not only that evidence favoring the jury verdict but evidence in favor of the moving party as well." Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982) (citing Rabun, 678 F.2d at 1060). But "[c]ourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." Narcisse v. Ill. Cent. Gulf R. Co., 620 F.2d 544, 548 (5th Cir. 1980) (quoting Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944)). Indeed, district judges "should not substitute [their] own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury." Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir. 1991) (quoting Rosenfield, 827 F.2d at 1498). The court should only grant such a motion if "the verdict is against the great, and not merely the greater, weight of the evidence." Quevedo v. Iberia Lineas Aereas de Espana Sociedad Anonima Operadora Co., 811 F. App'x 559, 562 (11th Cir. 2020) (quoting King v. Exxon Co., U.S.A., 618 F.2d 1111, 1116 (5th Cir. 1980)).
Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (adopting decisions of the Fifth Circuit, handed down prior to close of business on September 30, 1981, as binding precedent on all federal courts within the Eleventh Circuit).
III. DISCUSSION
A. Evidentiary Rulings
First, Defendant contends that a new trial is warranted due to certain of the Court's evidentiary rulings. "Because it is critical that a judge does not merely substitute [her] judgment for that of the jury, 'new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great—not merely the greater—weight of the evidence.' " Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)). Furthermore, "[a] new trial should be granted if inadmissible evidence is presented to the jury only if that evidence affects a party's substantial rights." Marlite, Inc. v. Eckenrod, 537 F. App'x 815, 817 (11th Cir. 2013) (citing Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1465 (11th Cir. 1994)).
i. Testimony of Previous Victims
Defendant contends that the testimony of previous victims was inadmissible. To be admissible, evidence must be relevant. Fed. R. Evid. 402. Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Fed. R. Evid. 401. Implicit in the definition of relevancy are two distinct requirements: "(1) the evidence must be probative of the proposition it is offered to prove, and (2) the proposition to be proved must be one that is of consequence to the determination of the action." U.S. v. Hall, 653 F.2d 1002, 1005 (5th Cir. 1981). In this case, the jury was instructed that Defendant may be liable if Plaintiff proved:
One or more officials or employees of The School Board of Miami-Dade County with authority to institute corrective measures had actual notice that Jason Edward Meyers posed a substantial risk of sexual abuse or harassment to female students; andTo prevail on her claim, Plaintiff was required to prove "actual notice" by a preponderance of the evidence. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).
Such school officials' or employees' response to the actual notice that Meyers posed a substantial risk of sexual abuse or harassment to female students was clearly unreasonable in light of the known circumstances, such that The School Board of Miami-Dade County may be deemed deliberately indifferent.
Here, the Court permitted victim witnesses J.B. and E.N. to testify. Both witnesses had engaged in sexual relations with Meyers prior to his sexual encounter with Plaintiff. Plaintiff presented evidence that Defendant had "actual notice" in September 2008, when Cameron Perkins emailed Krop's principal's secretary to report that Meyers was having sex with current and former students. (DE 145-6 at 77-81; Pl. Exh. 1.) Perkins testified that he emailed the school after learning that Meyers had "forced himself" upon one of Perkins' friends—a student—and had sex with J.B., who was Perkins' former girlfriend. (Id.) In pretrial conferences, when discussing Perkins' testimony regarding his email to Krop administration, Plaintiff made an offer of proof that Perkins' veracity would be at issue, and that having J.B. testify was relevant for this reason. In response, Defendant did not address the veracity argument, instead choosing to reiterate that J.B. had sex with Meyers after she graduated, when she was legally an adult. (DE 145-1 at 32:19-21; DE 145-6 at 137:21-140:4.)
The Court ruled that Plaintiff would not be permitted to call all the young woman that Meyers allegedly abused to testify. (DE 145-1 at 30:1-8; 30:22-24.) Nor would the Court allow social media evidence showing that students alluded to rumors of Meyers having sex with the students, as neither of these particular circumstances—as proffered—were germane to the question of actual notice with respect to the Defendant. (Id.)
Citations to portions of the transcript posted to the docket refer to the .pdf page number generated by CM/ECF, the Court's e-filing system.
This is the second trial where Perkins has testified. Doe v. School Bd. of Miami-Dade Cty., Fla., No. 17-cv-22926 (S.D. Fla. Aug. 2, 2017).
However, J.B. testified that in 2008, while she was a student, Meyers began sending her "very familiar" messages on Facebook "after [she] left town [to move to the Panhandle] but prior to graduation," which escalated to sex after graduation. (DE 145-6 at 130:7-24; 133:8-17.) J.B. then "got back together with [her] ex," Perkins, and told him about her sexual relations with Meyers. (Id. at 134:2-14.) Perkins was "very upset that it was [her] former teacher," and "he wrote [the school] an email." (Id.) Despite this email, both J.B. and Perkins testified that no one contacted them about Meyers until after his arrest eight years later in 2016. (Id. at 86:7-10; 87:12-17; 136-37.)
Clearly, the probative value of J.B.'s testimony as to notice substantially out-weighs any danger of unfair prejudice. The Court finds that there was no unfair prejudice to Defendant by admitting the evidence to show that Defendant was put on notice that Meyers presented a danger to his female students as early as 2008 and that the complaints and complainants were credible.
E.N.'s testimony served the same purpose for another instance where Defendant was put on actual notice. E.N. testified that in the fall of 2009, she also attended Krop. (Id. at 143:4-5.) When she was 16 years old, she attended a school-sponsored trip to Washington, D.C., during which Meyers—who attended as a chaperone—had sex with her in the hotel. (Id. at 145:4-146:15.) E.N. then told her friends about what had occurred. (Id. at 146:18-23.) Another student who attended Krop at this time—Dayson Roa—testified that he had heard from students who were on the trip "about the things that happened in the hotel room with Meyers and a student." (Id. at 103:10-104:2.) Roa then made an appointment to meet with Assistant Principal Garnica and alerted him that "Jason Meyers [was] having inappropriate relationships with students." (Id. at 100:8-13; 102:8-11.) Roa told Assistant Principal Garnica that Meyers was having sex with current and former students, and that Meyers had "intimate relations with a student on one of these trips." (Id. at 102-03.) To Roa's knowledge, Defendant did nothing with this information. (Id. at 108:2-9.) And no one contacted Roa to discuss what he knew about Meyers until after Meyers' arrest six years later in 2016. (Id. at 109:9-110:4.)
Plaintiff proved that Defendant was on actual notice of the danger Meyers posed by introducing testimony regarding specific sexual encounters, which prompted Perkins and Roa to alert the Krop administration about Meyers' transgressions. Thus, Plaintiff fulfilled the notice standard by adducing the testimony of Perkins and Roa, whose accounts were confirmed by J.B. and E.N. As Defendant properly asserts, "the more essential the evidence, the greater its probative value." United States v. King, 713 F.2d 627, 631 (11th Cir. 1983). In United States v. Watson, 669 F.2d 1374, 1392 (11th Cir. 1982), the predecessor to King, which Defendant cites, the Eleventh Circuit reversed and remanded for a new trial based on the exclusion of credibility testimony regarding the government's key witness. In reversing, the court noted that "[t]he excluded testimony would certainly be essential to a jury's decision whether to believe [the key witness'] testimony, without which the government would have no case." Id. at 1383 (internal quotations omitted). The same reasoning applies here. Plaintiff would have had "no case" without the testimony of Perkins and Roa, both of whom were painted by Defendant from the outset of the case as lacking credibility. (See DE 145-5 at 90; 91:21-24 (In Defendant's Opening Statement: "Assistant Principal Garnica will testify that he never received any complaint from any student, including a student by the name of Dayson Roa, that Mr. Meyers was having inappropriate relations with students.").) In sum, J.B. and E.N. corroborated Perkins' and Roa's testimony that they had information about Meyers' conduct and that they relayed the information to Defendant.
Jason Meyers chose to invoke his Fifth Amendment right against self-incrimination in his deposition and therefore was not called to testify in trial.
Finally, E.N.'s testimony is highly probative of Doe's claim of Defendant's deliberate indifference. Even after Perkins' email about Meyers in 2008, Meyers was permitted to attend two overnight trips with female students in 2009. And on at least one of these trips, he was allegedly able to sexually abuse a minor, E.N. All of this supports the jury's finding that the required elements of actual notice and deliberate indifference were proved and the Court's determination that the highly probative value of this evidence substantially outweighed any potential unfair prejudice to the School Board.
ii. Social Media Evidence
Next, Defendant argues that the Court's exclusion of social media posts showing Plaintiff living, at various times, an apparently happy life warrants a new trial. In its motion, Defendant argues:
A defendant may use social media evidence to impeach a witness. See Calhoun v. Walmart Stores East, LP, 818 F. App'x 899, 905 (11th Cir. 2020). In Calhoun, plaintiff testified on direct examination that as a result of an injury sustained while shopping at her local Walmart, she could no longer sit or walk for long periods of time and was unable to work as a model or actress. Id. at 902. During cross-examination, Walmart impeached plaintiff's testimony with printouts of her Facebook posts showing that she described herself as a "certified personal trainer," and posted about attending acting classes and casting calls. Id.(DE 143 at 8.) Defendant's reliance on Calhoun is misplaced. There, the social media posts at issue directly contradicted objective physical activities that the plaintiff testified she could no longer do. Here, Plaintiff conceded that she has traveled and been able to engage with people and participate in school and school activities since Meyers sexually abused her. Thus, the evidence that Defendant purportedly wanted to present—that Plaintiff traveled and, at times, was able to enjoy her life—was admitted.
Moreover, unlike the situation in Calhoun, the numerous photos at issue here were both irrelevant and redundant. Showing isolated moments in Plaintiff's life would not have made it more likely that Plaintiff did not suffer psychological distress than without that evidence. But to be sure, the jury heard evidence that one of Plaintiff's trips shown in a post admitted into evidence was one of her favorite memories. (DE 145-8 at 153:23-154:2.) Moreover, Defendant's expert, Dr. Sheila Rapa testified that Plaintiff did not appear to suffer significant impairment in her life, "is high-functioning and [that] she has had a very good life and she's made a good life for herself. So, she might be internally struggling with things, but externally she's done very well." (Id. at 112:11-16.) Any arguable relevance of the slew of photos offered but not admitted was substantially outweighed by the danger of presenting needless, cumulative evidence given that all of the information that Defendant sought to extract from the photos was admitted—and, most notably, uncontested—by Plaintiff's testimony.
B. Remittitur
Next, Defendant asserts that the jury award is beyond the realm of reasonableness and that remittitur is warranted. "In general, a remittitur order reducing a jury's award to the outer limit of the proof is the appropriate remedy where the jury's damage award exceeds the amount established by the evidence." Collins v. Koch Foods, Inc., No. 20-13158, 2022 WL 1741775, at *4 (11th Cir. May 31, 2022) (quoting Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir. 1985)). To make this determination, the court should consider: "(1) the size of the award; (2) the rational relationship between the award and the evidence adduced at trial; and (3) awards in similar cases." Khoury v. Williams, No. 16-20680-CIV, 2022 WL 2237320, at *4 (S.D. Fla. June 22, 2022) (citing Copley v. BAX Glob., Inc., 97 F. Supp. 2d 1164, 1172 (S.D. Fla. 2000)). Furthermore, in considering whether a remittitur is appropriate, " 'the Court is bound to allow Plaintiffs the maximum possible recovery,' keeping in mind that 'the Court is not to substitute its judgment for the jury's . . . .' " Walker v. Grampa's Real Est. Inc., No. 20-61557-CIV, 2022 WL 2308101, at *1 (S.D. Fla. May 20, 2022) (quoting Moses v. K-Mart Corp., 905 F. Supp. 1054, 1057 (S.D. Fla. 1995)) (emphasis added). "To determine whether the jury's award is within the range dictated by the evidence, a court must view the evidence in the light most favorable to the non-moving party." Id. (citing Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1266 (11th Cir. 2008)).
Defendant asks the Court to reduce the jury's award from $6 million to between $1.7 million and $2.2 million. In support of its request, Defendant references two Florida verdicts involving a teacher sexually abusing a minor student:
In Sarasota, the jury awarded plaintiff $745,700 ($400,000 for past pain and suffering and $250,000 for future pain and suffering), where the student claimed that his teacher/swim coach physically and sexually abused him. However, there was a 2017 verdict in Miami for $49 million, which included $30 million in punitive damages. In that case, the plaintiff sued the teacher and the school board. Plaintiff alleged that the teacher committed various improprieties including asking plaintiff to stay after class, texting pictures of his genitalia to her and asking her to do the same, and engaging in sexual acts with her, including intercourse in his classroom.(DE 143 at 11.) Defendant also points to California verdicts ranging from $2 million to $2.1 million to support its request. (Id.)
Here, the jury awarded $3 million for past damages and $3 million for future damages. On a review of the record, Plaintiff adduced ample evidence to support the jury's verdict. Plaintiff testified that her 40-year-old teacher groomed her after meeting her through his poetry nights program, which was held at Plaintiff's high school. (DE 145-7 at 173-74.) Meyers invited Plaintiff to be in his literature class the following year, Plaintiff's senior year. At the beginning of Plaintiff's senior year, she was not in Meyers' class, but after he noticed and commented on this, Plaintiff was subsequently transferred into two of his courses: Advanced Creative Writing and Advanced Placement English Literature. (Id. at 175.) Once in his classes, Plaintiff and Meyers would meet outside of class time in Meyers' classroom with the door closed and the window on his classroom door covered with paper. (Id. at 178.) During these closed-door meetings, Meyers began to groom Plaintiff by becoming her writing mentor: he advised her that her writing needed to be more mature; he encouraged discussion of their personal lives; and he counselled Plaintiff to write about sex. (Id. at 178-80.) After this, he introduced kissing, groping, oral sex and sexual intercourse to their relationship. (Id. at 184-85.) Further, the jury heard that once Meyers was arrested, Plaintiff was met with hostility from Palmetto faculty members given that Meyers' wife also worked at the school as a literature teacher and was a close friend to certain faculty members, including the literature teacher that assumed Meyers' classes after his arrest. (Id. at 190-92.)
And there was testimony that Krop's principal at the time of the two complaints was a longtime coworker of Meyers' father, also a teacher at Krop during the period in question. (DE 145-5 at 150:15-151:7.)
After graduating from high school, Plaintiff relocated to Tallahassee to attend college. During her freshman year, she engaged in substance abuse to self-medicate and had numerous sexual partners, feeling as though "that was all she had to offer." (DE 145-8 at 28.) Shortly after, Plaintiff met her current boyfriend, who testified about how Plaintiff's anxiety and stress have affected their relationship, including their sexual relationship. (DE 145-7 at 151-54.) He described periods where they have abstained from sex altogether, given that the assault remains a trigger for her. (Id. at 154.) He also discussed her nightmares and panic attacks, and how, at times, he has assumed the role of her caretaker. (Id. at 154-56.) Additionally, Plaintiff's expert psychologist, Dr. Holly Schilling diagnosed Plaintiff with PTSD, major depressive disorder, and panic disorder due to the sexual abuse and exploitation by a trusted mentor. (DE 145-8 at 17-18.) Finally, Plaintiff's parents testified that she became withdrawn from her family and appeared depressed after the sexual abuse and the school faculty's response. (DE 145-7 at 114:9-14; 134:17-19; 135-36.) Taken together, the evidence of the psychological and emotional damage suffered by Plaintiff supports the verdict.
Next, a review of national verdicts also lends support to the jury's verdict. Defendant asserts that California verdicts of $2 million in similar cases validate its remittitur request. However, a recent verdict of $102.5 million was awarded by a San Jose, California jury in a civil lawsuit against a school district brought by two sexually abused former middle school students, who alleged that the school district ignored previous allegations of the teacher's inappropriate behavior. Jane Doe, et al. v. Union Sch. Dist., No. 19CV343088 (Sup. Ct. Cal. Jul. 27, 2022). The case was brought by two plaintiffs, Jane Doe 1, who was awarded $65 million and Jane Doe 2, who was awarded $37.5 million. According to the complaint, the teacher, Samuel Neipp, began grooming the girls by sending text messages and regularly spending time alone with them in his classroom. Id. Furthermore, the school board had been put on notice of Neipp's inappropriate behavior with other female students on at least two different occasions. Given the similarities of that case to this one, it is not beyond the realm of reasonableness for Miami-Dade jurors to have found that similar psychological damage established here warranted a $6 million award for the Plaintiff.
The jury was instructed as follows:
[I]f the greater weight of the evidence supports Jane Doe's claim, you should determine and write on the verdict form, in dollars, the total amount of loss, injury or damage which the greater weight of the evidence shows will fairly and adequately compensate Jane Doe for her loss, injury, or damage, including any damages that she is reasonably certain to incur or experience in the future. You shall consider the following elements: Any psychological injury sustained by Jane Doe and any resulting pain and suffering, mental anguish, inconvenience, or loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence.Defendant accepted this instruction without objection. (DE 145-3 at 11:3-11.)
Additionally, as Defendant concedes, a Miami jury found that a plaintiff was entitled to a $49 million award directly against a teacher that sexually assaulted a student. In C.R.R. v. Bresnniel Jansen, a math teacher sexually abused a minor student over a semester, like the timeline in this case. No. 14-031736-CA-01 (Fla. 11th Cir. Ct. Nov. 14, 2017). In that case, the jury awarded the plaintiff $49.3 million, including $30 million in punitive damages. Id. Setting aside the $30 million in punitive damages (which were not at issue here), a Miami jury found that such sexually abusive conduct warranted $19.3 million in compensatory damages. Id. Although the verdict in C.R.R. was against the teacher, the fundamental purpose of awarding damages is the same—making the victim whole for the victim's past and future psychological injuries suffered as a result of a defendant's actions. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (citing Restatement (Second) of Torts § 903, pp. 453-454 (1979)); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) ("[Compensatory damages] are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct."). Consequently, in light of the range of awards in teacher-on-student sexual assault cases, the verdict does not exceed the range of reasonable possible recovery or shock the Court's conscience. Accordingly, Plaintiff's remittitur request is denied.
In that case, Defendant The School Board of Miami-Dade County, Florida confidentially settled with the victim for its role and potential liability.
C. Exclusion of Unvaccinated Jurors
Finally, Defendant asserts that a new trial is warranted because the exclusion of unvaccinated jurors from the venire deprived it of its right to a jury selected from a fair cross section of the community. Defendant contends that unvaccinated jurors were "active[ly]" and "systematically" excluded from the jury venire, and that Defendant objected to this exclusion on the morning of jury selection. (DE 143 at 14; 16.) Defendant states that "there are correlations between vaccination status and gender and ethnicity that give rise to concerns that a fully vaccinated panel is not a representative section of the community." (Id. at 14.) In response to the Motion, Plaintiff argues that Defendant did not properly raise an objection to preserve this issue, but in any event, the argument is mistaken and meritless. (DE 144 at 19-20.)
The Court held the trial in this matter shortly after trials resumed in this district, having ceased for more than a year to combat the Covid-19 pandemic. Given that Covid-19 vaccines had been made widely available in the spring of 2021—a few months before trial—members of the community who entered the courthouse for jury service were asked to share their vaccination status on a voluntary basis. The Court held multiple discussions with the Parties about Covid-19 protocols in the weeks leading up to the trial, in order to permit the trial to go forward in the safest manner possible for the Parties, court personnel, and the venire, especially in light of the concerning surge of the Covid-19 Delta variant at the time.
On August 23, 2021, the Court held a calendar call, as the trial was scheduled to proceed the following week. At the outset of the calendar call, the Court noted that the pandemic continued to ravage Miami-Dade County. Specifically, the Court stated:
"We are here today for calendar call for trial that is to begin next week." (DE 145-1 at 1:20-21.)
The Covid situation in Dade County right now is worse than when we spoke last in our status conference. The infection numbers and the hospitalizations [sic] numbers are quite substantial. So I am prepared to try our case, but I am only going to do so in a manner that will insure everyone's safety, including the jurors.(DE 145-1 at 4:12-18.) Against this backdrop, both counsel teams assured the Court that they were vaccinated. The Court then discussed a questionnaire that was given to potential jurors in early summer to ascertain vaccination status in preparation for the district's Covid pilot trials. The Court stated, "[W]hat I intend to do is bring in jurors for this trial and find out if they are vaccinated or not and then bring vaccinated jurors up to have you inquire of them. Hopefully, we can pick an all vaccinated jury." (Id. at 6:20-23.) After outlining other safety protocols, the Court stated, "I just wanted to bring you up-to-date on where we are in terms of safety. Are there any remarks, comments or questions about what I have discussed with you thus far?" (Id. at 9:16-18.) Defendant asked for clarification regarding how many potential jurors would make up the venire, and the Court expressed the goal of having at least twenty potential jurors in the venire. (Id. at 14.) Defendant did not raise an objection to having solely vaccinated jurors.
On August 25, the Court held another conference with the Parties. Concerning vaccination, the Court stated:
We have established that everyone has been vaccinated and so that does not appear to be an issue. But if there is any other issue or concern I would like to be advised of that.(DE 145-2 at 4:8-24.)
So, I laid out for the parties what the protocols would be in terms of jury selection and how the trial would be conducted in my courtroom. I am hoping to see the numbers go down -- I am hoping that we have hit the peak and the numbers will recede -- but we just don't know.
In terms of masking, I do not see a lot of change in that over the next few months because people will continue to be exposed -- and of course there are still those that are unvaccinated.
And as I told the parties at the previous hearing, there will be an inquiry of the jury pool as to vaccination status, and I intend on having those vaccinated jurors brought up first.
Following these remarks, the Court discussed an objection that Defendant raised to having one of Plaintiff's witnesses—J.B.—testify remotely via videoconference. Again, no objection was made about bringing in vaccinated jurors first if the numbers permitted.
On September 15, the Court held another pretrial conference with the Parties. At the outset of this conference, the Parties discussed the fact that Defendant's party representative had contracted a breakthrough case of Covid-19. After advising Defendant that it would need to identify another representative, the Court turned to a discussion of the proposed jury instructions. After moving through the Parties' objections, the Court remarked:
If you would submit by Monday at five any questions you believe should be included or you would like the Court to ask of the venire, I will take a look at those, and then we can have a discussion about that when we have our next meeting. And I will ask whether or not they are vaccinated so we will have that information as well.(DE 145-3 at 21-22.) Defendant—for a third time—raised no objection to the proposed protocol. The Court held yet another pretrial conference on September 23, and, again, Defendant raised no objection to the Court's proposals.
All right. Is there anything else the parties would like to take up with the Court before I step out to edit the actual notice instruction?
Finally, on September 27, more than a month after the calendar call during which the Court initially expressed the intent to attempt to seat a fully vaccinated jury, the trial commenced. The discussion of jury selection proceeded as follows:
THE COURT: All right. I have provided to counsel a notice of the potential jurors in this case. They are listed 1 through 25. On the left side of the list is an indication of their vaccination status; Y meaning yes, N meaning either no or that person declined to share the information. On the right is a rough count of who is available to us vaccinated, and that would be 17 jurors.(DE 145-5 at 4-5.)
Do you wish to bring up the 17 vaccinated venire in order to insure our panel is fully vaccinated or do you have another thought on that?
MR. SCHWEIKERT: For plaintiff we have no objection to proceeding with the vaccinated panel.
MR. BRAND: I would defer to Your Honor. I would like a representative section of the community, which would include both vaccinated and unvaccinated, however I would defer to Your Honor.
THE COURT: I think a representative cross section of the community anticipates gender and ethnicity; it does not anticipate people who choose certain health options. So I think to assure the most safe experience for us all I think we should bring up our vaccinated jurors. That does not mean I believe that the unvaccinated jurors will be released. There is another trial going on this afternoon, and they might be called back for that. But with 17, you select six, you excuse 6, and 5 are excused for cause, I think that gives us enough room.
In response to Defendant's Motion, Plaintiff contends that Defendant did not properly raise or preserve an objection to the Court's procedure of bringing in vaccinated jurors first for jury selection. In its reply, Defendant asserts that the prior discussions of the process for selecting a jury were not "affirmative," (DE 146 at 8), but Defendant does not address the argument that its statement at the time of jury selection did not constitute an objection.
As a general matter, an objection must be "in such clear and simple language that the trial court may not misunderstand it." Smith v. Sunbelt Rentals, Inc., 356 F. App'x 272, 277 (11th Cir. 2009). A vague and unclear statement is not a properly preserved objection. See id. After four pre-trial conferences where the Court spent ample judicial time and resources on familiarizing the Parties with pandemic trial procedures, and where Defendant spent significant time discussing its objection to certain procedures—including having witness J.B. testify remotely via videoconference, (DE 145-1 at 28-29; DE 145-2 at 15)—Defendant never raised an objection to bringing in vaccinated jurors first for jury selection. Moreover, while Defendant contends that it made an objection the morning of trial, the Court does not believe that the statement "I would defer to Your Honor" constitutes a clear objection. But even if the Court were to consider Defendant's statement on the morning of jury selection as a proper objection, this argument fails on the merits.
As to the merits, Defendant is mistaken on both the facts and the law. Defendant asserts that because unvaccinated members of the venire were not considered, Black and/or African-American males were entirely excluded from the jury venire. This, Defendant contends, supports its assertion that the group of vaccinated jurors brought up first—from which the panel was ultimately selected—was not a fair cross section of the community. (See DE 143 at 14 ("Of the seventeen potential jurors in the pool, only one was African American.").) Critically, no such objection or identification of racial and gender exclusion was articulated or even suggested before or during voir dire. But contrary to Defendant's contention, and as Plaintiff recounted, three potential jurors were Black and/or African-American, and one of these three was male. (DE 144 at 20). In its reply, Defendant failed to dispute Plaintiff's statistical breakdown of the venire, and instead reiterated its position that it timely objected to proceeding with a fully vaccinated jury. (DE 146 at 7.)
The Jury Selection and Service Act (" JSSA "), 28 U.S.C. §§ 1861 et seq., provides that "[a]ll litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes." 28 U.S.C. § 1861. For a violation of the JSSA to warrant relief, "it must frustrate one of the core principles underlying the statute, such as the fair cross-section principle." United States v. Dees, 603 F. App'x 777, 780 (11th Cir. 2015) (citing United States v. Carmichael, 560 F.3d 1270, 1277 (11th Cir. 2009)). The standard for assessing whether a JSSA fair cross-section violation has occurred is the same as that used to determine a fair cross-section violation under the Sixth Amendment. Id. (citing United States v. Rodriguez, 776 F.2d 1509, 1510 n.1 (11th Cir. 1985)). Specifically, a movant alleging a fair cross-section violation must demonstrate:
(1) that the group alleged to be excluded is a "distinctive" group in the community;Id. (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). "Failure to establish any one of these elements results in the failure of the entire [JSSA] claim." Id. (citing United States v. Pepe, 747 F.2d 632, 649 (11th Cir. 1984)). To satisfy the first prong of the Duren test, the movant must show:
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
(1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process.Willis v. Kemp, 838 F.2d 1510, 1514 (11th Cir. 1988).
Given that courts across the country have all had to manage the effects of the global pandemic, numerous federal courts have considered the issue of whether the group of unvaccinated members of a community are "distinctive" to meet the first prong of the Duren test. Courts agree that this group is not distinctive for the purpose of a fair cross-section analysis. United States v. Elder, No. 18-CR-92 (WFK), 592 F.Supp.3d 48, 64-65 (E.D.N.Y. Mar. 21, 2022) (finding that unvaccinated members of the community do not meet the "distinctive" requirement of the Duren test); United States v. Moses, 566 F. Supp. 3d 217, 222 (W.D.N.Y. 2021) (same); In re Nat'l Prescription Opiate Litig., No. 18-OP-45032, 589 F.Supp.3d 739, 752-53 (N.D. Ohio Mar. 7, 2022) (same). The Court concurs. While a group of unvaccinated persons can be identified and therefore "defined," this grouping fails the other two criteria outlined in Willis, 838 F.2d at 1514, and thus cannot satisfy the first prong of the Duren test, much less the second. There are myriad reasons why a person may decline a certain healthcare option, including a vaccine, which precludes the Court from finding that this group meets the criteria for the Duren test. Thus, having failed to establish the distinctiveness of this group, Defendant's motion is denied on this basis.
On October 19, 2021, Defendant filed a Motion for Discovery of Juror Information, requesting "the list of jurors that was provided to the parties on the morning of September 27, 2021 that identified the vaccinated and unvaccinated jurors, all juror questionnaires, qualification forms, and/or any forms completed by jurors, including COVID-19 specific questions, used in the creation of the jury venire." (DE 135 ¶ 1.) Thereafter, on October 29, 2021, Defendant filed an Expedited Motion to Rule on Defendant's Motion for Discovery of Juror Information. (DE 136.) First, as to the list of juror names, Defendant concedes that a copy of this list was provided to the Parties on the morning of September 27, 2021 (DE 135 ¶ 1), but provides no explanation as to why it did not maintain a copy of this list. The list of juror names does not reveal any information—race, gender, or ethnicity—that the transcript of the voir dire or the Parties' own notes, which Plaintiff references in her response, would reveal. Second, with regard to the remaining documents, Defendant does not explain how this information would reveal any information not already available to it in either the list of juror names provided to the Parties, the Parties' own notes, and/or the transcript of the voir dire. As Plaintiff details in her Response (and which Defendant does not dispute), of the seventeen potential jurors—all of whom were vaccinated, fourteen were white and three were black, and one was a black man. (DE 144.) Accordingly, Defendant's Motions to Discover Juror Information (DE 135; DE 136) are DENIED.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for a New Trial is DENIED on all grounds. The Court will separately enter final judgment.
DONE AND ORDERED in Chambers in Miami, Florida this 31st day of August, 2022.