
    Ellis SINGLETARY, a minor child, By and Through BARNETT BANKS TRUST COMPANY, N.A., as Guardian of the Property of Ellis Singletary and Kathryn Singletary, individually, Appellants, v. Mary Kendra LEWIS, M.D., Appellee.
    No. 92-645.
    District Court of Appeal of Florida, First District.
    May 21, 1993.
    Rehearing Denied June 16, 1993.
    
      Norris & Koberlein, Lake City, P. Scott Russell, IV, of Gentry & Phillips, Jacksonville, for appellants.
    Michael W. Kehoe and Jeannette M. Andrews of Fuller, Johnson & Farrell, Tallahassee, for appellee.
   PER CURIAM.

These parties are before us a second time, the original appeal having resulted in a remand to the trial court to “interview all the jurors and make the initial factual determination as to whether the evidence supports a finding of misconduct on the part of the jury.” Singletary v. Lewis, 584 So.2d 634, 637 (Fla. 1st DCA 1991). In the first appeal, this court found that only one of Singletary’s issues merited consideration: Whether allegations of concealment of material facts at voir dire, and allegations of improper consideration and racial bias among jurors required the trial court to grant Singletary’s request for juror interviews. Singletary prevailed on this issue, and we remanded the case with instructions that the trial court conduct the requested interviews.

In the instant appeal, Singletary asserts error in 1) the trial court’s refusal to order a new trial based upon allegations that a juror concealed material knowledge on voir dire, 2) the trial court's refusal to order a new trial based upon allegations of juror racial bias, and 3) the trial court’s apportioning of appellate costs between the parties. In light of the results of the juror interviews, we find no merit in the claim of concealment of material knowledge, and affirm on that issue. Additionally, we affirm all costs except for that portion of the order awarding costs to appellee/defen-dant, where appellee never filed a timely motion for costs as required by Florida Rule of Appellate Procedure 9.400(a). Lastly, for the reasons set forth below, we affirm the denial of appellant’s motion for new trial, which was based upon alleged juror misconduct evidencing racial bias.

Appellant, Kathryn Singletary (a black female), brought suit against appellee, Dr. Mary Lewis (a white female), alleging medical malpractice in the delivery of Single-tary’s son. Following an eight-day trial, the jury returned a verdict for Dr. Lewis. Sometime later, the alternate juror, Lump-kin, informed Singletary about improper remarks made by jurors during the trial. The trial court heard testimony from Lumpkin, who stated that she believed from “little comments that they made,” that the five white jurors were biased against Singletary because she was black. When asked whether she heard racial remarks, Lumpkin admitted that she heard none. Pressed for specifics, Lumpkin related a comment allegedly made by juror Tuten more than once during the trial that “They ought to sewed her (Singletary) up. She was a fool for having so many babies.” Despite Lumpkin’s testimony, which also suggested that Tuten failed to disclose knowledge of the Singletary family during voir dire, the trial court declined to conduct further juror interviews. On appeal, this court reversed and remanded the case so that the trial judge, after juror interviews, could “make the initial factual determination as to whether the evidence supports a finding of misconduct on the part of the jury.” 584 So.2d at 637.

Juror interviews were held twenty-seven months after the trial. Interview questions were submitted to the court by counsel, based upon alternate juror Lumpkin’s charges. The trial judge interviewed the six jurors, and allowed additional questioning and summary statements by counsel. Of the alleged improprieties testified to by Lumpkin, the most serious remark that was confirmed by other jurors was the “sewed up” comment that Lumpkin attributed to Tuten. The record reveals that two jurors, Scippio and Smith, recalled hearing all or part of that remark. Juror Scippio, the only black juror other than Lumpkin, recalled a comment “that she (presumably Mrs. Singletary) should have been sewed up,” but she did not remember who made the comment or when it was made. When asked what the comment meant to her, juror Scippio answered that “it don’t mean anything.” Juror Scippio at first vaguely recalled the remark about having too many babies, but upon re-examination claimed she had no memory of that same remark. Juror Smith testified that the sewing-up comment was not directed at Mrs. Single-tary but that juror Tuten was speaking of herself, indicating that she (Tuten) would have herself “sewed up” before having so many babies. Like Scippio, Smith could not recall a comment to the effect that Single-tary was a fool for having so many babies. Although Smith “was a little bit embarrassed” by the sewing-up comment, she did not perceive it as derogatory toward Sin-gletary. For her part, juror Tuten denied hearing or making a comment to the effect that Mrs. Singletary should have been “sewed up” to keep from becoming pregnant.

After interviewing the jurors and hearing argument from counsel, the trial court expressed its findings:

Hit’s here for me to find if there was any misconduct on the part of the jury and I don’t find any present.... And when I hear all six of the [jurors], it’s quite different from what Mrs. Lumpkin said initially. And when I listened to her initially I didn’t find, you know, the extent necessary for a new trial, but hindsight and education from the District Court makes it clear I should have talked to all of them, as we now have, and they’ve been quite emphatic that there’s just nothing there.... [W]hat I heard today is far different than was insinuated by Mrs. Lumpkin_ As to the sewing up part, Mrs. Lumpkin may have taken it some way, as she says she did, but no one else did. There wasn’t but one or two that said they’d even heard something about it, and it was — one of them said that Mrs. Tuten was saying that as to herself. Even if it was said exactly as Mrs. Lumpkin said, it doesn’t necessarily show racial bias or prejudice or anything else. It’s just somebody makes a comment, but I don’t find it to be as Mrs. Lumpkin said.

The court dismissed remarks about welfare support for the injured child as merely evidencing the jurors’ humanitarian concern for the child. The court concluded, “I don’t find the evidence here to support any misconduct on the part of the jury ... and will deny the motion for new trial.”

Whether one agrees or disagrees with the trial court’s conclusion, it at least appears that the court employed the proper procedure to determine whether there was juror misconduct requiring a new trial. Specifically, the court looked to Singletary to establish the actual juror misconduct. If established, Singletary would then be entitled to a new trial unless the opposing party could demonstrate that there was no reasonable possibility that the misconduct affected the verdict. See Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97, 100 n. 1 (Fla.1991) (citing State v. Hamilton, 574 So.2d 124, 129 (Fla.1991)). Finding no misconduct, the trial court did not inquire whether the alleged misconduct affected the verdict.

Much of Singletary’s argument on appeal mistakenly assumes the existence of juror misconduct, and urges that such misconduct necessitates a new trial without regard to its effect upon the verdict. Thus, Singletary argues that this case is controlled by Sanchez v. International Park Condominium Association, Inc., 563 So.2d 197 (Fla. 3d DCA 1990), which she cites for the proposition that comments reflecting a juror’s racial or ethnic bias will necessitate a new trial regardless of whether the comments influenced other jurors. In Sanchez, the plaintiff in a slip-and-fall case was of Cuban extraction. After the jury returned a verdict attributing to the plaintiff ninety-six percent contributory negligence, jury interviews revealed that one juror had described Cubans as “ambulance chasers” and had remarked that “Cubans as a whole, whenever anything like this happens, they yell sue, sue, sue, or want to sue at the drop of a hat.” The trial court denied plaintiff’s motion for new trial, apparently relying on the jurors’ assurances that they were not influenced by the comments. The Third District reversed and remanded the case for a new trial because the biased juror’s active participation in the collegial deliberative process effectively deprived the plaintiff of an impartial jury, despite the other jurors’ assurances that they were not influenced by the comments. See also United States v. Heller, 785 F.2d 1524 (11th Cir.1986) (trial court erred in refusing to declare mistrial upon discovering that jurors had made antiSemitic comments).

Singletary argues that the trial court in the instant case, like the trial court in Sanchez, mistakenly inquired about the effect of the “sewing up” comment on the jurors who heard it. According to Singletary, juror Tuten’s comment demonstrated racial bias, and Tuten’s participation deprived Sin-gletary of an impartial jury, thus necessitating a new trial without regard to the effect of the comment on other jurors or the likelihood that the comment affected the verdict.

However, Singletary’s argument ignores the fact that the trial court found no juror misconduct in the form of a comment evidencing racial bias. Thus, whatever inquiry was made concerning the effect upon other jurors can be ignored as unnecessary and irrelevant.

The trial court’s decision on whether to grant a new trial is subject to review for abuse of discretion. State v. Hamilton, 574 So.2d 124, 126 (Fla.1991); Rudolph v. Gleason, 339 So.2d 298 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 952 (Fla.1977); Evans v. Roth, 168 So.2d 546 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 32 (Fla.1965). The “sewing up” comment was certainly crude — most would find it offensive — but it was not a racial or ethnic slur that would lead us to conclude that the trial court abused its discretion in failing to order a new trial.

Apparently, Singletary recognizes that the comment at issue did not involve an explicit racial epithet similar to the ethnic slur that required a new trial in Sanchez. Thus, she argues that even without an explicit epithet, the “sewing up” comment suggested “that Mrs. Singletary was a foolish, immoral, promiscuous woman who should have been sewed up to avoid having more children at public expense,” and that such a comment is “consistent with negative, racially based stereotypes of blacks which are unfortunately still prevalent in many parts of the country.” Singletary suggests that if an explicit slur is required, a clever speaker’s choice of words can effectively insulate expression of racial bias from judicial review, and turn the principle of impartial jury trial into a sham.

To ascribe to the comment the volume of meaning suggested by Singletary we would have to ignore the trial court’s acceptance of juror Smith’s account of the remark over that offered by alternate juror Lumpkin. Lumpkin’s account, though not necessarily establishing racial bias, could only be interpreted as disparaging of Singletary. Smith’s account, however, is at least susceptible of an interpretation that is not derogatory toward Singletary. Thus, juror Tuten could have been expressing in crude terms her own inhibition against having a large number of children. Such a comment is hardly flattering to Singletary — perhaps even implying disapproval of Singletary’s reproductive choices — but it is certainly not the type of vile racial slur, veiled or otherwise, that has been characterized by Single-tary. Of course, it would have been better had juror Tuten not found it necessary to share her views on this topic with fellow jurors, but, having done so, we cannot say that the trial court abused its discretion in refusing to grant a new trial based upon the comment.

In affirming the trial court, we do not hold, as suggested by Singletary, that an explicit racial or ethnic slur is always required for this type of juror misconduct to result in a new trial. Although ambiguous comments, like the remark at issue here, are undoubtedly less likely to be deemed misconduct, they are not immune from review by the trial court or by this court. There is no means by which we can peer into jurors’ hearts and minds to see whether such a comment is the product of bias or prejudice. As in the jury selection process, so too with juror misconduct, we must “necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a ‘feel’ for what is going on_” Reed v. State, 560 So.2d 203, 206 (Fla.1990). Given the record before us, we cannot say that the trial judge so misperceived the situation that his refusal to grant a new trial constitutes an abuse of discretion.

Accordingly, with the exception of the award of appellate costs to the appellee, we affirm on all issues.

MINER and ALLEN, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I would reverse as to all three issues raised and remand the case for new trial. The majority affirms without extended discussion of the first point relating to appellant’s claim of a juror’s concealment of material knowledge. In our prior opinion in Singletary v. Lewis, 584 So.2d 634 (Fla. 1st DCA 1991) (Singletary I), we remanded the case to the trial court for the purpose of a jury interview in order for it to determine, among other things, “the nature and extent of the alleged material concealment.” Id. at 637.

Regarding this issue, the record reflects that at the outset of jury selection, counsel for the plaintiffs generally asked all jurors whether any of them knew Ms. Singletary or her child, and only three of the jurors responded affirmatively, while the remainder, including juror Tuten, replied they did not. The question, like the one posed in Mitchell v. State, 458 So.2d 819 (Fla. 1st DCA 1984), discussed infra, was clear and straightforward, and, in view of Ms. Tu-ten’s negative answer, it should not have been incumbent upon defense counsel to explore the topic further, notwithstanding Ms. Tuten’s later answer during her individual examination, that she knew everyone in the county who had not moved there during the preceding ten years. After this court’s remand, Ms. Tuten admitted that she had known Kathryn Singletary since Singletary was a child, because she had come with her mother to the Tutens’ grocery store.

As this court explained in Mitchell, even when the false information is given by a juror unintentionally, and regardless of a juror’s lack of bad faith, a new trial may be required because the juror’s concealment of a material fact denies to the party affected “the right to make an intelligent judgment as to whether a juror should be excused. Counsel should have the right to truthful information in making that judgment.” Id. at 821. See also Mobil Chem. Co., a Div. of Mobil Corp. v. Hawkins, 440 So.2d 378, 381 (Fla. 1st DCA 1983) (“[The juror’s] failure to disclose material information bearing on her possible bias and her qualifications to serve as a juror deprived Mobil of its right to intelligently participate in selection of the jury, and gives rise to an unacceptedly strong inference that Mobil did not receive the fair trial to which it was entitled.”), review denied, 449 So.2d 264 (Fla.1984).

Thus, even if a trial court finds that a juror had no intent to deceive when he or she answered a question incorrectly,

relief will be afforded where (1) the question propounded is straightforward and not reasonable [sic] susceptible to misinterpretation; (2) the juror gives an untruthful answer; (3) the inquiry concerns material and relevant matter to which counsel may reasonably be expected to give substantial weight in the exercise of his peremptory challenges; (4) there were peremptory challenges remaining which counsel would have exercised at the time the question was asked; and (5) counsel represents that he would have peremptorily excused the juror had the juror truthfully responded.

Mitchell, 458 So.2d at 821 (footnote omitted).

In applying the above rule to the instant case, I can only conclude that as a result of Ms. Tuten’s failure to make a complete and open disclosure of her knowledge of Kathryn Singletary, plaintiffs’ counsel was denied the right to make a reasoned decision as to whether Ms. Tuten should have been excused for cause or preemptorily. Thus, I consider that even if issue I is considered in isolation, the trial court abused its discretion in refusing to grant appellants’ motion for new trial.

Considering issues I and II together, however, I think the justification for granting a new trial is even stronger, and that a substantial inference arises from the record that Ms. Tuten’s failure to make an open and complete disclosure of her knowledge of the Singletary family was intentional, not inadvertent. As recited in this court’s earlier opinion in Singletary I, alternate juror Lumpkin testified that Tuten stated in her presence during the course of the trial that she knew the family; however, the record does not disclose that Tuten reported this fact to the court. When the above comments are coupled with other statements Tuten made during the trial proceedings, a deliberate pattern of malicious intent is displayed.

This court in Singletary I asked the trial court to consider whether a finding of misconduct should be made based upon certain comments alleged to have been made by some jurors which indicated the existence of prejudice against appellants. In our earlier opinion we recounted that alternate juror Lumpkin (an African-American juror) reported that from the very beginning of the eight-day trial, Ms. Tuten (a Caucasian juror) had commented that Ms. Singletary “was a fool for having so many babies” and “they ought to sewed her up.” Ms. Seippio (another African-American juror) also related to Lumpkin a comment Seippio overheard, but Lumpkin did not, that Sin-gletary and her child’s needs would be better satisfied by a receipt of welfare benefits rather than an award of damages. At another point, another juror wondered aloud, in Ms. Lumpkin’s presence, after a local banker appeared in the courtroom during trial, why the banker was there and how he knew that the defendants would prevail, thereby suggesting that the juror had prejudged the case without hearing all the evidence.

After remand of the cause to the trial court for the purpose of conducting an interview, which was held 27 months following the trial, jurors Seippio and Smith corroborated the substance of Lumpkin’s earlier testimony relating that a juror had commented that Kathryn Singletary should have been sewed up in order to avoid becoming pregnant. Although Ms. Seippio did not remember the person who had made the statement, juror Smith identified Tuten as the person who had so spoken, but her version of Tuten’s remarks was different from Lumpkin’s. Smith recalled Tuten as saying that if she had been Sin-gletary, she would have had herself sewed up, rather than having the child. Three jurors could not remember the “sewing up” comment, while juror Tuten denied both making or hearing it. In regard to Lump-kin’s testimony that she was informed by juror Seippio that some of the jurors had indicated they would prefer it if the plaintiffs received welfare rather than an award of damages, this statement was confirmed by five jurors, including Tuten.

After considering the testimony of alternate juror Lumpkin before remand and the six participating jurors following remand, the majority now affirms the trial court’s denial of the motion for new trial and states that because the present case does not involve any explicit racial slur, such as existed in Sanchez v. International Park Condominium Association, 563 So.2d 197 (Fla. 3d DCA 1990), the motion for new trial was correctly denied, and,' even if no specific racial slur is required, it concludes the trial court did not abuse its discretion in so deciding. I cannot agree.

The comments that were directly made in alternate juror Lumpkin’s presence, and corroborated on remand, occurred despite the trial court’s prior specific instructions that the jurors should not form or express any opinion about the case until they had received all the evidence, the arguments of the attorneys, and the instructions on the law from the court. Thus, at the very minimum, the evidence shows a blatant nonconformance by some of the jurors with the court’s instructions and clearly reveals that they — including Tuten — had in fact prejudged the case from practically the very outset of the trial without regard to the evidence. It is a sufficient ground for new trial in itself if the evidence discloses that a juror has, during the progress of the trial, decided the verdict without regard to the evidence that has been or will be presented. 38 FÍa.Jur.2d New Trial § 29, at 255 (1982).

In requiring that there be a direct racial reference in order for the Sanchez rule to apply, the majority, in my judgment, has departed from the law of the case which was established in Singletary I. In this court’s prior recitation of the comments allegedly overheard by Lumpkin, none of the comments reported reflects an explicit racial slur against Ms. Singletary or her child. In fact, this court specifically stated that Lumpkin testified that none of the remaining white jurors made any racial remarks in front of her and Seippio. Single-tary I, 584 So.2d at 636. Notwithstanding the absence of such explicit comments, this court decided that, based on the statements made, the appellants had met their burden of establishing a legally sufficient reason for requiring a jury interview. We continued that “[prejudice against one of the parties or the making of prejudicial comments in the presence of the jury is evidence of improper considerations.” Id. at 637. We remanded the case for a jury interview to permit the trial court to make an “initial factual determination as to whether the evidence supports a finding of misconduct on the part of the jury.” Id. We made no demand of proof of an explicit racial slur as a precondition to a finding of jury misconduct. Although this court did not decide any issue regarding the existence of misconduct, the clear import of our language reveals that we had already decided that the “sewing up” comment would, if corroborated, be legally sufficient evidence of prejudicial misconduct, regardless of whether the remark made any specific reference to African-Americans.

Moreover, it is immaterial whether this court in Singletary I was correct in deciding that a legal basis for a jury interview existed, based upon the comments Lumpkin reported. The general rule is that “whatever is once established between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case.” 3 Fla. Jur.2d Appellate Review § 414, at 566 (1978) (emphasis added) (footnote omitted). Another applicable rule involving the law of the case is that “additional evidence merely cumulative to evidence of the same class received at the first trial and considered on the first appeal does not interfere with the doctrine of the law of the case.” 3 Fla.Jur.2d Appellate Review § 419, at 574 (emphasis added) (footnote omitted).

Therefore, once this court in Singletary I determined that a sufficient legal ground had been established for conducting a jury interview, based upon the character of the comments alleged, neither the trial court nor the majority in the present case was authorized, under the law of the case, to revisit that determination. In determining whether jury misconduct occurred, the lower court’s primary responsibility on remand was to decide whether sufficient evidence corroborated the alleged prejudicial statements reported by Lumpkin. In making its decision, the court should have confined its inquiries to the objective evidence regarding the comments and should not have delved into questions — as it did — regarding whether the comments had any effect on the jurors in reaching their verdict. As explained in State v. Hamilton, 574 So.2d 124, 128 (Fla.1991), Section 90.607(2)(b), Florida Statutes, forbids absolutely any judicial inquiry into the emotions, mental processes, or mistaken beliefs of the jurors. This is because such matters normally inhere in the verdict itself, and the law therefore does not permit a juror to avoid his or her verdict based upon such considerations. Accord McAllister Hotel, Inc. v. Porte, 123 So.2d 339, 344 (Fla.1959).

There are, however, a number of narrow exceptions to the general rule restricting such inquiries if there exists a matter extrinsic to the verdict sufficient to justify a jury interview. As explained in Maler v. Baptist Hospital of Miami, Inc., 559 So.2d 1157, 1162 (Fla. 3d DCA 1989), approved, 579 So.2d 97 (Fla.1991):

In order to constitute juror misconduct and, therefore, a matter extrinsic to the verdict sufficient to set aside the verdict or for a post-trial jury inquiry, Florida and other courts have consistently held that some objective act must have been committed by or in the presence of the jury or a juror which compromised the integrity of the fact-finding process[.]

Such objective acts include the making by a juror of a vile racial, religious, or ethnic slur against a party or a witness during a trial or jury deliberations. Id. The Third District continued that the enumerated cases in which a post-trial jury inquiry was warranted, involved “some type of objective act or occurrence that was relatively easy to ascertain — as opposed to probing ... into the gossamer mental processes, agreements, conclusions, and reasoning of the jury.” Id.

This rule is exemplified by the facts in Sanchez v. International Park Condominium Association, 563 So.2d 197, 198 (Fla. 3d DCA 1990), in which two jurors corroborated one juror’s testimony of another juror’s ethnic slur that “Cubans as a whole ... yell sue, sue, sue, or want to sue at the drop of a hat.” The Third District noted that in conducting the jury interview, the trial court concentrated on determining whether any of the jurors had been affected by the comments reflecting ethnic bias, and that all testified — similar to the testimony of the jurors in the present case— they had not been so influenced. Based upon the jurors’ responses, the trial court denied the motion for new trial. In reversing the denial and remanding the case for new trial, the Third District observed: “It may be that the other jurors * were not affected by the remarks made by juror six. Juror six was, however, an active participant in the deliberative process, and the verdict included his input.... The plaintiff was entitled to have her case heard by an impartial jury.” Id. at 199 (footnote omitted).

The evidence on remand discloses that the jurors collectively disregarded the trial court’s instructions not to prejudge the case and formed an opinion of the case based upon considerations extraneous to the issues tried, as shown by various comments made during the trial which obviously favored the defendant. The fact that juror Smith characterized juror Tuten’s statement as applying to Tuten herself rather than Singletary, as attributed by juror Lumpkin, does not, in my judgment, detract from the vile, prejudicial effect of the statement, which was clearly directed at Kathryn Singletary for having so many children, and which was made in the presence of other jurors before their deliberations.

Regardless of how Tuten’s comment was phrased, it was obviously “evidence of [an] improper consideration[ ]” in that it was a “prejudicial comment[ ] [made] in the presence of the jury.” Singletary I, 584 So.2d at 637. The statement, moreover, revealed its utterer to harbor certain negative stereotypes which demonstrated her lack of fitness to sit as a fair and impartial arbiter. As the Eleventh Circuit Court of Appeals observed in United States v. Heller, 785 F.2d 1524, 1527 (11th Cir.1986): “A racially or religiously biased individual harbors certain negative stereotypes which, despite his protestations to the contrary, may well permit him or her from making decisions based solely on the facts and law that our jury system requires.”

Consequently, when issues I and II are considered together, relating to both material concealment and the existence of a prejudicial, racial statement, I am of the view that the trial court erred in finding the nonexistence of same. The record supports the conclusion not only that Tuten deliberately concealed her acquaintance of the Singletary family, but that such concealment was made in bad faith, particularly in view of the fact that her prejudicial comments appear to have been made from the outset of the trial. The detrimental effect of a juror’s false concealment of a material fact on a party’s right to a fair trial was well analyzed by Justice Cardozo in Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933), in the following terms:

The petitioner [the juror] is not condemned for concealment, though concealment has been proved. She is not condemned for false swearing, though false swearing has been proved. She is condemned for that she made use of false swearing and concealment as the means whereby to accomplish her acceptance as a juror, and under cover of that relation to obstruct the course of justice. There is a distinction not to be ignored between deceit by a witness and deceit by a tales-man. A talesman when accepted as a juror becomes a part or member of the court. The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only. His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham. What was sought to be attained was the choice of an impartial arbiter. What happened was the intrusion of a partisan defender. If a kinsman of one of the litigants had gone into the jury room disguised as the complaisant juror, the effect would have been no different. The doom of mere sterility was on the trial from the beginning.

Id. at 11, 53 S.Ct. at 468, 77 L.Ed. at 998 (citations omitted).

Moreover, the participation of a biased, prejudiced juror in the verdict contaminates the entire trial proceedings, and the misconduct of one juror becomes the misconduct of all. See Thomas v. Kansas Power & Light Co., 185 Kan. 6, 340 P.2d 379, 385 (1959) (“[A] jury when accepted becomes a part of the court, and must necessarily act as a unit, and the misconduct of any juror which is sufficient to compel the granting of a new trial is misconduct of the entire jury.”)

The majority in the present case correctly observes that a motion for new trial should not be granted, notwithstanding the presence of misconduct, if the party opposing the motion for new trial is able to demonstrate that there is no reasonable possibility that such misconduct affected the verdict. See Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97, 100 n. 1 (Fla.1991). As the majority explains, the trial court never decided whether the misconduct alleged affected the jurors’ verdict because the court found no misconduct occurred, a finding which the majority affirms.

If, as I consider, the trial court erred in its finding of no misconduct, I see no further need to remand on the issue of whether there was any reasonable possibility that the jurors’ misconduct affected the verdict returned. Once misconduct is established, I think, as applied to the facts of this case, it would be impossible for any court to conclude that there was no reasonable possibility that the prejudicial comments did not affect the verdict. The issues of liability were hotly contested, and there was clearly sufficient evidence from which an unbiased jury could have returned a verdict in plaintiffs’ favor. Three experts testified on behalf of plaintiffs that Kathryn Single-tary’s prior medical history indicated a high-risk pregnancy, and that defendant, who did not perform Caesarian sections, should have earlier referred Singletary for adequate medical assistance once she learned of the problems associated with Singletary’s prior pregnancies. I therefore conclude that reversal of the judgment and remand of the case for new trial are clearly required.

Although I would so decide, I now have serious reservations whether Ms. Single-tary and her son can receive a fair trial in Hamilton County. In its denial of the motion for new trial, the trial court made the following statements:

I don’t find the evidence here to support any misconduct on the part of the jury, and I’d comment that this jury probably has less misconduct than 95 percent of them, as far as what they set around and talked about, basically considering this thing went on for a week and a half, I believe, and I’m really proud they did as well as they did, and the jury’s apparently followed instructions as well as they did, and I’ll find that there’s no misconduct on the part of the jury and will deny the motion for new trial.

If the above comments by the trial court are an accurate description of the conduct of trials generally afforded parties in Hamilton County, involving situations, such as that at bar, in which jurors cavalierly disregard the trial judges’ instructions not to discuss the case among themselves, or to form or express any opinion before they begin their deliberations, and if 95 percent of the trials so conducted do not conform to the standard of fairness exemplified in Ms. Singletary’s case, I regard appellant’s arguments for change of venue to have substantial merit. Nevertheless, this is an issue which was raised and decided adversely to appellant in Singletary I. The law of the case as established in this court’s former decision now precludes relitigation of this issue. I would, nonetheless, reverse and remand the case for new trial without prejudice to appellants’ right to renew their motion for change of venue as to events transpiring after the trial of the cause which may impact upon plaintiffs’ right to a fair and impartial trial by jury. 
      
      . Singletary’s argument raises the question whether it is appropriate to utilize the second part of the Baptist Hospital/Hamilton inquiry (i.e., new trial unless nonmovant demonstrates no reasonable possibility that misconduct affected the verdict) in cases involving a juror's biased comments. Indeed, one could legitimately maintain that the participation of a juror whose bias has been demonstrated by racial, ethnic or religious comments, precludes the court from finding that the comments did not affect the verdict; thus, where juror misconduct is in the form of biased comments, a new trial will be necessary despite any subsequent showing of "harmlessness” by the nonmovant. Such a showing, though relevant when assessing the misconduct at issue in Baptist Hospital (improper consideration of evidence not introduced at trial) and Hamilton (presence of extraneous materials in jury room), may not be relevant to the type of misconduct at issue in the instant case. Of course, this argument is academic given the trial court's conclusion that no misconduct was shown. Such a conclusion obviated the need for further inquiry concerning harmlessness or the extent of the comment's effect upon other jurors, and rendered any findings on such questions mere surplusage.
     
      
      . Because of my proposed disposition, it is unnecessary to discuss the appellate cost issue.
     
      
      . Kathryn Singletary had four children before Ellis was born.
     
      
      . Compare the facts in the above case with those in Sanchez v. International Park Condominium Association, 563 So.2d 197 (Fla. 3d DCA 1990), in which one juror’s report of juror misconduct in the form of ethnic slurs was corroborated by two other jurors; two jurors did not remember the comments; and the juror identified as making the comments denied making or hearing them. On this evidence the Third District reversed the trial court’s denial of the motion for new trial and remanded the case for new trial.
     