Third District Court of Appeal

State of Florida

Opinion filed March 24, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-0050

Lower Tribunal No. 15-24325

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Hialeah Hospital, Inc.,

Appellant,

vs.

Joshua Misius Hayes-Boursiquot, etc.,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Abby 

Cynamon, Judge.

Falk, Waas, Hernandez, Solomon, Mendlestein & Davis P.A., and

Glenn P. Falk and Scott L. Mendlestein and Khristen S. Vachal-Reese; 

Greenberg Traurig, P.A., and Elliot H. Scherker and Brigid F. Cech Samole 

and Katherine M. Clemente, for appellant.

Law Offices of Alan Goldfarb, P.A., and Alan Goldfarb and David C. 

Appleby; Joel S. Perwin, P.A., and Joel S. Perwin; R. Fred Lewis 

(Tallahassee), for appellee.

Before LINDSEY, MILLER and BOKOR, JJ. 

BOKOR, J.
2

Hialeah Hospital, Inc. (“Appellant” or “Hialeah Hospital”) urges reversal 

of the jury verdict in favor of The Estate of Arleisha Hayes (“Appellee” or “the 

Estate”) based on the trial court’s refusal to permit the exercise of a defense 

peremptory challenge of an African-American potential juror. Hialeah 

Hospital also argues the trial court abused its discretion in refusing to grant 

a new trial after allowing inadmissible expert testimony during trial.1 For the 

reasons that follow, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

On January 28, 2014, Arleisha Hayes was admitted to Hialeah Hospital 

for respiratory failure and acute exacerbation of bronchial asthma. Over the 

course of several days, Ms. Hayes’s medical condition deteriorated, 

eventually reaching a critical point requiring a rapid response by hospital 

staff. On February 7th, 2014, Hialeah Hospital’s house physician2 evaluated 

Ms. Hayes, ultimately deciding not to recommend further intervention. Sadly, 

despite the emergent response, Ms. Hayes passed. The Estate sued 

1 Hialeah Hospital also appeals the trial court’s refusal to grant a directed 

verdict based on lack of causation. The record demonstrates competent 

substantial evidence to support causation. Accordingly, we summarily affirm 

on this ground. See Graham Companies v. Amado, 305 So. 3d 572, 575-77 

(Fla. 3d DCA 2020). 

2 It is worth noting that a house physician is not licensed to practice medicine. 

Instead, pursuant to state law and Hialeah Hospital’s policies, a house 

physician must be supervised by a licensed physician at all times. 
3

Hialeah Hospital for negligence, alleging that its failure to properly assess 

and treat the decedent’s later-discovered pneumonia caused or contributed 

to her death. 

Prior to trial, the parties agreed not to reference the licensed physicians 

who cared for Ms. Hayes (the “Pretrial Agreement”).3

 Nonetheless, 

Appellant’s counsel repeatedly discussed the involvement of numerous 

licensed physicians despite the Pretrial Agreement. Similarly, Appellee’s 

expert witnesses testified as to the attending licensed physician’s failure to 

supervise the house physician during the rapid response and to prescribe 

medicine. During trial, Appellee’s expert witness also testified as to the 

illegality of the house physician’s practice of medicine without a license 

based on her understanding as a licensed physician.4 Upon objection, the 

trial court provided a curative instruction explaining to the jury that a doctor 

was unable to opine as to legal matters. Thereafter, the jury returned a 

verdict in favor of the Estate. 

3 In pertinent part, the Pretrial Agreement provided that “there will be no 

evidence, testimony, claims, arguments, references, or suggestions made 

during the course of the proceeding that would suggest or lead to any 

inference of fault or liability as to the care and treatment rendered by any of 

Arleisha Hayes’ Florida licensed treating physicians.” 

4 Appellee’s expert witness also discussed the house physician’s “arrogance 

and willingness to disobey” in a video deposition which was improperly edited 

and presented to the jury. 
4

II. ANALYSIS

Hialeah Hospital seeks a new trial based on the following purported 

errors: (a) sustaining a Melbourne challenge5 to a defense peremptory strike; 

and (b) allowing inadmissible and prejudicial expert testimony. We address 

each issue in turn. 

a. Melbourne Challenge

During jury selection, Appellant’s counsel sought to exercise 

peremptory challenges to excuse three potential jurors belonging to a 

protected class based on race, specifically, one Haitian-American and two 

5 See Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996). Melbourne

established the following guidelines for a trial court’s evaluation of whether 

an impermissible race-based motive underlies a party’s peremptory 

challenge: 

[Step 1.] A party objecting to the other side’s use of a peremptory 

challenge on racial grounds must: a) make a timely objection on 

that basis, b) show that the venireperson is a member of a 

distinct racial group, and c) request that the court ask the striking 

party its reason for the strike.

[Step 2.] At this point, the burden of production shifts to the 

proponent of the strike to come forward with a race-neutral 

explanation.

[Step 3.] If the explanation is facially race-neutral and the court 

believes that, given all the circumstances surrounding the strike, 

the explanation is not a pretext, the strike will be sustained.

Julmice v. State, 14 So. 3d 1199, 1203 (Fla. 3d DCA 2009). 
5

African-American potential jurors.6 Appellant takes issue on appeal with only 

the third peremptory challenge in which the trial court upheld Appellee’s third 

Melbourne challenge. In sustaining this Melbourne challenge, the trial court 

found what it considered to be an impermissible pattern of peremptory 

challenges based on race. Accordingly, we examine the trial record to 

discern whether the trial court abused its discretion in finding an 

impermissible pattern of striking jurors based on race. 

In each of the three Melbourne challenges, Appellee’s counsel timely 

objected, noted that each challenged potential juror was a member of a 

protected class based on race, and sought a race-neutral and non-pretextual 

reason for the peremptory challenge. For the Melbourne challenge related 

to the first potential juror, Appellant’s counsel proffered the race-neutral 

explanation that this potential juror expressed a devotion to policies and 

procedures in the context of her employment as a baker at Whole Foods. 

Counsel explained that he exercised a peremptory challenge on this 

potential juror because policies and procedures would feature heavily during 

trial. The trial court found this explanation race-neutral and non-pretextual 

and overruled the Melbourne challenge. For the second challenged potential 

6 Notably, the decedent was identified by the Estate’s counsel as “Haitian 

and African-American.” 
6

juror, Appellant’s counsel proffered that this potential juror’s employment as 

hospital staff and relationship with a nurse rendered him unsuitable. After 

consideration, the trial court found the explanation pretextual and sustained 

the Melbourne objection. 

Finally, for the third Melbourne challenge, the only one challenged on 

appeal, Appellant’s counsel proffered the race-neutral explanation that he 

sought to strike this potential juror due to his training and experience in the 

medical field as a licensed practical nurse. In this case, the trial court found 

that Appellant’s race-neutral explanation was not genuine due to an 

impermissible pattern of seeking to excuse potential jurors based on race.7

 

Accordingly, the trial court sustained the Melbourne objection. 

The trial court’s focus during a Melbourne challenge is not “the 

reasonableness of the asserted nonracial motive . . . [but] rather . . . the 

genuineness of the motive[,] . . . . a finding which turn[s] primarily on an 

assessment of credibility.” Melbourne, 679 So. 2d at 764 (internal quotations 

omitted) (emphasis in original). This Court evaluates the trial court’s 

assessment of credibility under a clearly-erroneous standard of review. See

Melendez v. State, 787 So. 2d 918, 920 (Fla. 3d DCA 2001); see also Pringle 

7 In considering, and rejecting, Appellant’s race-neutral explanation and 

assessing credibility, the trial court noted that “[a] pattern of striking members 

of a racial group is relevant to the Court’s determination.” 
7

v. State, 792 So. 2d 533, 536 (Fla. 3d DCA 2001). It is well established that 

a juror’s occupation can be the foundation of a proper peremptory challenge. 

See Landis v. State, 143 So. 3d 974, 979 (Fla. 4th DCA 2014); see also

James v. State, 768 So. 2d 1221, 1223 (Fla. 3d DCA 2000). Here, however, 

the record demonstrates that Appellant’s counsel exercised three 

peremptory challenges in a row on members of a race-protected class 

matching the decedent’s identification. Additionally, the trial court found the 

proffered reasons for two of three such challenges pretextual. Accordingly, 

there is sufficient record evidence to support the trial court’s credibility 

assessments such that they may not be disturbed under the clearlyerroneous standard.

Moreover, a trial court may consider logical implications in evaluating 

the likelihood of racial discrimination where a pattern exists. See Sparks v. 

Allstate Const., Inc., 16 So. 3d 161, 164 (Fla. 3d DCA 2009). A trial court’s 

finding of pretext premised on a pattern will survive review under an abuse 

of discretion standard where, as here, the “transcript demonstrates a 

systematic use of [peremptory challenges], followed by what seem to be 

quickly-contrived excuses for the strikes, in a manner calculated to exclude 

African Americans from serving on the jury.” Id.; see also Melbourne, 679 

So. 2d at 765 (noting that this court’s review is guided by “reason and 
8

common sense”). As such, we find that the trial court properly exercised its 

discretion in sustaining a Melbourne challenge based on an impermissible 

pattern of striking potential jurors based on race. 

b. Expert Testimony

We review the denial of a motion for a new trial for abuse of discretion. 

50 State Sec. Serv., Inc. v. Giangrandi, 132 So. 3d 1128, 1133 (Fla. 3d DCA

2013). First, Appellant argues that the trial court’s refusal to enforce the 

Pretrial Agreement and subsequent denial of its motion for a new trial 

constitutes reversable error. In response, Appellee argues Appellant 

“opened the door” once it introduced evidence and testimony in 

contravention of the stipulation. While a pretrial stipulation should be strictly 

enforced, LPI/Key W. Assocs., Ltd. v. Beachcomber Jewelers, Inc., 77 So. 

3d 852, 854 (Fla. 3d DCA 2012), a trial court has broad discretion due to its 

unique vantage point both to determine the scope of an alleged violation, if 

any, and the appropriate remedy. See Jennings v. State, 124 So. 3d 257, 

266 (Fla. 3d DCA 2013) (“Being present in the courtroom and having listened 

to the witnesses, examined the exhibits, heard the arguments, and observed 

the jurors, the trial judge was in the best position to gauge the impact of the 

improper arguments on the entire trial.”). 
9

In its order, the trial court found mistrial unwarranted, noting “that both 

parties elicited testimony about other doctors and the actions they took.” 

Here, the record supports the trial court’s determination that both parties 

violated the Pretrial Agreement on numerous occasions. We therefore 

conclude that the trial court did not abuse its discretion in finding that the 

stipulation violations did not warrant a new trial. 

Second, Appellant argues the trial court erred in refusing to grant a 

new trial after allowing inadmissible and unduly prejudicial testimony. 

Namely, Appellant contends references to the house physician’s “arrogance, 

willingness to disobey and illegal behavior” merit a new trial. However, a trial 

court should only grant a mistrial when the error is prejudicial enough to 

vitiate the entire trial. Ward v. State, 306 So. 3d 1004, 1007 (Fla. 3d DCA

2020). As we explained in Ward, 

In order to grant a mistrial based on impermissible trial testimony 

from a witness, the witness’s comments must either deprive the 

defendant of a fair and impartial trial, materially contribute to the 

conviction, be so harmful or fundamentally tainted as to require 

a new trial, or be so inflammatory that they might have influenced 

the jury to reach a more severe verdict than that it would have 

otherwise.

Id. (internal citations omitted); see also Talley v. State, 260 So. 3d 562, 568 

(Fla. 3d DCA 2019) (explaining that mere prejudicial error does not merit 

reversal of a trial court’s determination). 
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In this case, it appears the expert witness’s deposition was 

inadvertently presented to the jury as an isolated part of trial. In other words, 

the video deposition remarking on the house physician’s “arrogance and 

willingness to disobey” did not become the “focus of the trial.” Ward, 306 So. 

3d at 1007. As such, Appellant was not deprived of a fair trial. Further, “this 

is particularly true where an appropriate curative instruction is given.” Id. 

Here, the record reflects that the trial court provided a curative instruction 

after Appellee’s expert witness testified as to the illegality of practicing 

medicine without a license. See Jennings, 124 So. 3d at 266 (“Generally 

speaking, the use of a curative instruction to dispel the prejudicial effect of 

an objectionable comment is sufficient.”). Accordingly, we find that the trial 

court did not abuse its discretion in issuing a curative instruction instead of 

granting mistrial. 

Affirmed.