jurors gave dishonest answers on jury questionnaires to a question whether the jurors had been involved in previous civil litigation in this circuit if juror dishonesty is found and i note that the district court assumed that the answers were dishonest or the court should move to the nd mcdonagh prong actual bias but beginning by treating the juror dishonesty as what this court said and perkins quote the best initial indicator or of whether the juror was impartial but what happened here is  that physically i'm sorry the diary had not been called correct i'm assuming they were sitting the courtroom through the box yes or yeah the question was 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 jury if so raise your hand no hands were raised bear in mind that the jury questionnaires also under oath had been filled out before that question was asked and both of these jurors had answered either not a political or no to the question whether they've been involved in prior civil litigation so isn't the isn't the jury questionnaire isn't there a little for your side isn't there a little bit more pinch in the jury the response of the jury questionnaire and the vardy or question because the jury questionnaire just says have you been involved in violent geisha and the answer there in a or now the other one have you been involved in anything that you think might compromise your ability they could have honestly answer that no right i suppose so but the predicate to that answer would have been that they lied on the what here on the jury questionnaire in other words a juror who said i've never been involved in prior civil litigation couldn't answer that question without admitting that they've lied on the  questionnaire yes i guess i'm saying that doesn't really sort of come down the questionnaire absolutely which is just as much a part of what year as is that what you're in the courtroom i note that in this case the the district judge said you all have the jury questionnaire  where as in this case the the the water was extremely limited the question of actual bias is where that is where this case turns now we have that test whether the juror would be  course as in perkins part of the analysis at this stage is that the juror was dishonest in other words you don't you don't carve out the juror dishonesty and then look at the juror as if the juror had answered honestly and stopped the inquiry there you start with the juror having been dishonest in the st place because there's this court set of perkins that's the best indicator of whether there's actual actual bias in the st instance how it was just sort of practically does the the dishonesty that you have established or that you  that you have established at prong one how does it sort of color of the nd prong i mean i take that to be your argument that you can't like sort of fine dishonesty and then say ok now let's set the dishonesty aside and move to close connection you're saying that the dishonesty somehow has to filter down into the nd prong what does that look like without sort of preempting the close connection question i understand your honor the we started with it as as an indicator of actual bias we still have to establish some sort of connection between the dishonesty and the and the and the jurors subject to be being subject to a challenge to a challenge for cause now in terms of just looking at it at a macro level each one of these jurors without getting into the sea and into the sealed appendix had been on the receiving end so to speak and had been a defendant in actions brought by large corporations or banks for nonpayment of dead one of them had a personal bankruptcy this is this is a classic david versus goliath sort of case in which a an injured plaintiff is suing a large corporation and as district court disagreed with that characterization right i understand your honor but i would respectfully submit that and miss that actually misinterprets or misapply misunderstands what happens in a real trial i'm fairly comfortable in saying that most trial lawyers worth their salt would not want someone who had been on the receiving end of debt collections by large why why would we have to have two prongs and how does that work out in the end the real practice of the district court what does that mean does that mean that it seems like we never get the problem to unless there's  dishonest in answering the questions the courts still look to whether it's the courts to look to whether there would be in france a given is one of the core put it this way let me just read what the court said given the inferences of actual bias that arise from the fact  felt compelled to misrepresent himself and to me and i think that case to conceal prior litigation we conclude that actual bias must be presumed so we start with a presumption of actual bias the court quoted a st circuit certainly one possible nonobjective objective any possible non objectivity and i i stop on that for good reason law or makes it erroneous fact finding the way i am analyze this kind of a problem and it's in that framework as that once there's a false would be very much like the carpet case your honor in which in which the court ordered that there had to be hearing even though the judge in that case were the f b i that would investigation that's the rule of law that i perceive is applies in this discretionary call i think that's correct right ok i think that's correct that's exactly what the court was saying and perkins if you have possible nonobjective it and you have a juror who lies about a material fact in  that's enough to that at a bare minimum get a hearing to determine what the what the juror was actually thinking and why the juror did what the juror did but starting with starting with even in that inquiry the presumption of actual bias at that point it's almost like an ordinary in ordinary challenge because where a juror discloser something so powerful that that that a reasonable lawyer would make a challenge for cause and then under required by the court says well of course your honor i could be fair even after on the record this is so is it your contention that if it if it step one dishonesty gives rise to some sort of presumption of actual bias that i guess filters and the step to that then it has sort of like shifted the burden perhaps to like disprove close connection or something like that now that there's this presumption that attaches i'm just trying to figure how this works if it prong two does the other side now have the burden of proving that there sort of is no close connection because as i read carp we say that close connection or that actual bias can be shown either and i take shown to mean by you either sort of a smoking gun or a close connection so i just don't understand how the filtering through presumption thing works at project i don't have a clear answer unfortunately because the cases don't break it down that that fine but so you don't deny i guess that it's your but whatever the presumption thing is doing that it remains your burden to show close connection a product as i understand the case so much as i would prefer it otherwise i believe that's still true nothing says that it's a burden shifting yeah jump ship so if it is that was your burden to show close connection why is that you know these sort of debt collection type things aside from david and goliath why is it that these debt collection things would be close enough to a personal injury suit i mean what weren't there weren't there jurors who confessed to having been involved in personal injury litigation who didn't strike that's correct so i guess i'm just sort of having a hard time understanding like  why the close connection standard is met here or bear in mind that those jurors told the truth and then we analyze this juror these jurors with a presumption that they're not that they do have actual mouse so that's that that's the st thing different i guess the way to look at it your honor is if suppose when the question was asked at one year when the general question was asked of why do you or one of these jurors had an attack of conscience and stood up and said your honor i lied i do have this long history of of civil litigation and i you have your perry mason moment in the church tells the truth i think at that point a valid challenge for cause would be a foregone conclusion part of this is whether you cost challenge sometimes comes down to litigation trial tactics right sure you may have a valid cause challenge and not assert it because there are other things about that juror that you think make them passable for you or because the next sure is horrible short understood which is why the test isn't whether it would be granted the problem as i see it is you never know what's going to come out in the examination of the you're correct this so it affects it was exposed to it and these two in this case because you don't know what would be developed in an interrogation there be something about just the court makes the court case over my brief your own out of my time yet will i have just one going sorry you know so and this is i guess a simple yes now is there such a thing as florida statute three o five there may be a three o five there was you know there was that there was an expert your side put on to say the medical expenses were improperly marked up and pursuant to section three of the florida statute three o five he kept saying that i off the top of my head was maybe glossed over a bit but there was two issues that the district court looked at regarding a ledger just honesty one was the actual language of the questionnaire itself and then the wild deer language in which counsel spoke about in which he was a two part prong requesting one where you shape the litigation was or litigation in some audit shape what shape  about the juror questionnaire did the parties prepare that was that a standard document of the court out of that come about that was a standard document of the court and that i wanted to i'm going to grant you in light of that that that was not a very clearly worded question on number ten which is what i think you're about to tell us right yes so here the district court presumed falsity with respect to the answer to that question had no other choice did it well yes or no is what they did they said there was not indication of dishonesty based on the ambiguity in the question and based on the question how can the district court make those findings without an necessarily dishonest answer well the words at this point the district court can't say it's an honest answer that's clear can't necessarily say it's a dishonest answer without knowing more but the district court simply presumed dishonesty and moved to problem two for the purposes of the mcdonald's says yes because what they're saying is even if you presume dishonesty you can't get to the nd prong however as far as the requests for it  issue where they have to vote the court for leave because yes yes so but they didn't do that as your argument that if they don't make that motion they lose support you know they could have brought that up well i understand surely they could at yes the court could have a lot of sort of initiative the right they could have they didn't they didn't originally request to hear what what happened was they only requested a new trial a response was filed to the motion for new confusing and it wasn't necessarily a dishonest answer in fact and you said it also had no connection to any actual bias right yes and that's when they said well then let's have a hearing on and it seems to me th two key questions are here the court presumed dishonesty was the answer actually dishonest and nd why if it was just to avoid conflict embarrassment over having filed a personal bankruptcy and been a judgment debtor in a number of cases that's one thing but we don't know the motive of the jurors in dissent and incorrectly answering the question number ten we don't know if they were confused there's a lot of things we don't know uses discretion if it misapplies the larger make wrote is fact that's correct the question is what is the rule well what does the law require the court to do when faced with this situation that's correct yes is your argument that doesn't require the court to do anything what does the court required to do the court is required to make a determination if there was a dishonest how does a court do that to determine from from what they read just from the naked they could language they can argue that as the court looks at the naked language and determines what that there would not be grounds for a challenge for cause eight fail to answer material question of order i understand that is what you're saying is that the district court has to determine from the law from what's presented the lie basically whether if i had rebutted would support a challenge for  you buy that as a nd analysis know the something else i think you're not where on the same page of all the district court is faced with these false statements yes the question becomes what must the district do judge do that may it simply determine from the false statement whether there would be challenge for cog no and they would go to the nd prong of the mcdonnell k then the court has to do something cat responses and the size for itself on the basis of the responses i suppose and the ed the claims that if you win a case whether there would be a challenge for cause yes based on a close connection to the alleged dishonest answers in the issues in the case or to dress whether there's a close connection if we don't know why the answer was given the way it was given because of the because of what they did with the defendant provided what is your best case for that proposition or there's a number of cases the bank atlanta's give me one that says you take the false statements as as false and then you determine whether there's anything in and bank of planet in which there was a a juror that concealed his criminal history and the the court to the same analysis he did here saying there is a question about dishonesty but for the purposes of the analysis they were assuming that the question was dishonest the answer was dishonest and they found that there was not a close connection between the interest rate swap allegation in the bank atlanta case and the criminal convictions of the defendant and also i think i think almost right on point judge is you as a recess burke in which case you were involved with which is and to us in one thousand case and all read the decision the jurors allegedly undisclosed bankruptcies foreclosures and short so mortgage transactions if true would not demonstrate such a close connection in the mortgage fraud scheme of this case that bias could be presumed they have to prove express admission of bias or such a close connection to the issues at hand that bias can be presumed they can speculate and us versus burke that's almost exactly what per curiam you're a part of that panel said there was not a situation where there was a close connection even though the jury did not disclose bankruptcy's foreclosures and short sale mortgage transaction it didn't demonstrate a close connection to a mortgage fraud scheme which is much closer than in the case here there's nothing here to show anything dealing with the collection of foreclosures have any to do with a personal injury case the case is that the defendant sites deal with very obvious jury discrepancies and and errors perkins d with a defendant who the juror and logically knew the defendant and the juror was involved in criminal actions that was clearly something that could was a problem that needed to be addressed through  the mcdonogh novices carpet was the juror had a felony arrest and a felony arrest is per se it challenge for cause those cases are the only cases really the that the defendants rely party must do more than speculate hima show clear strong substantial and in control of king controversial evidence that a specific non speculative impropriety has occurred it's not the burden is not on the district court's it to to say there is speculation it's on the moving party to return more than speculation right now there's nothing more than speculation this court i think is is really putting the burden on the on the district court judge because we don't know what an persons would have this close and the defense had the opportunity to do so and did not do it just to be clear the core and and i think court's just asking questions here's my next question sure seven times cost of the implant you have to show that damage passed medicals were reasonable and necessary little question the implant was necessary why was that reasonable well what we've done is doesn't a plaintiff have a duty not to provide whatever provider charges but the only the reasonable cost and pass it along to the tortfeasor yes and the reason for this is something that the jury is free to decide what evidence in this record was there that that was issue and say that's not reasonable seven times the cost of the retail would well you get if if we were if there was a car accident and they were arguing over whether they really was an issue for the jury to decide whether it was reasonable or not is wasn't it was an issue regarding something the hell under that argument there is never going to be a review of reasonableness then post verdict it's not as it's always going to be an issue for the jury and that's not the law spec it is a law both the law in the state of florida and the law and this in this circuit of then that means as long as there are some evidence testified to a point about reason most of the damage there could never be any post verdict review of whether there was sufficient evidence no question about related nothing was at issue regarding later the only question question was reasonable notice and the plainest testimony alone in a supreme court case and garrett established reasonable as there was nothing else needed to be done the jury is free to determine what and that the expert testimony they can they can reject it or accept it so they chose to reject it so there's nothing in the record especially at this stage or honors that would show that the trial court abused discretion in denying the motion for a new trial and  again with the jury verdict is something that's highly differential as all of you are aware and when a motion for a new trial is denied it's even a higher differential treatment it really isn't going to be touched unless the descriptions of the evidence is not an issue any evidence to support a trial court's the jury verdict should be sustained so there really is no basis i understand your your question but that's really a question for the jury not a question for review at this stage so we not let's assume that yeah in that case they're still even going to step two you know there has been no showing of a close and close connection between the litigation at hand and the alleged  collections or bankruptcy both for litigation but that except the false statements had to do with litigation had to do with some debts but it had nothing to do with with what was what was an issue here a personal enjoyment different kinds of litigation but litigation nevertheless right and again we're here on a piece of discretion stand i think we've got it thank you so much and prescience your argument mr shirker you've got three minutes remaining judge proctor one quick note on the damages will be free of the plaintiff's brief in page thirty where they make the argument that the plaintiffs testified the expenses were reasonable and what's most notable about that argument is there's not a single record site for the proposition i read this record i don't remember the plaintiffs ever saying  ff testimony alone would be enough to show that the jury but that there's simply no plaintiff testimony here and i do disagree one of the case those cases which are not cited in his brief there were cited in the new trial papers those cases say that an owner can testify to value which is true  decision and united states versus french which is cited in our briefs which i which addresses almost every question that's come up during during the opposing counsel's argument for example in that case the question was has anybody been involved in court matters in your family government prosecutors each hypothesis is plausible but insufficiently likely so as to warrant rejecting without investigation the claim of germs conduct as improbable they the court went on to say that the the party moving what are you asking us to do in to the district court of the district court that presents a place with their choice under florida law as to whether to accept the remitted or were taken to trial and damages i suppose that would be the appropriate relief we do ask the court simply to reduce the damages the only amount supported by the record that's very clear in our in our in a brief switch and finally just real quick answer future pain and suffering what what how do we go about assessing that on this record and in light of florida law or law requires the court to look for comparative hours and i recognize that our with one compared to what we were able to find in a case where liability was admitted and there were there was purely non economic future damages no no future medical expenses but you're simply future pain and suffering