Judge’s Personal Involvement In Jury Selection

May 29th, 2018 by Rieders Travis in Medical Malpractice

Trigg v. Children’s Hospital of Pittsburgh of UPMC, 2018 Pa. Super. LEXIS 499 (May 14, 2018), Kunselman, J.

Mendy Trigg (Jillian Trigg’s mother) and Smithfield Trust, Inc. filed this appeal following a jury verdict in favor of Children’s Hospital of Pittsburgh of UPMC. The Triggs claim that Allegheny County Civil Division’s jury selection process deprived them of their right to a fair trial. The Hospital insists that the palpable-error deference standard announced in McHugh v. P&G Paper Prods. Co., 2001 PA Super 130, 776 A.2d 266 (Pa. Super. 2001), requires us to affirm. However, for the reasons that follow, we cannot extend the McHugh deference standard to trial judges who fail to observe voir dire in person. After reviewing the Triggs’ challenge to Prospective Juror 29 de novo, we reverse and remand for a new trial.

The Triggs submitted three questions on appeal, all of which challenge the jury selection process in this case:

1. Did the trial court err in denying the [Triggs’] Motions to Strike for Cause potential jurors who exhibited such bias and prejudice that they could not have been fair and should have been stricken from the panel, which required the [Triggs] to use 3 of [their] 4 [peremptory] strikes to remove these potential jurors causing obvious prejudice to the [Triggs].

2. Did the trial court err specifically when it denied the [Triggs’] request to ask voir dire questions of the venire about (1) the [Hospital] and its relationship in the community, especially in light of [the Hospital’s] opening statement when these issues were placed before the jury without any voir dire examination, (2) unintentional harm, since many jurors do not understand the burden of proof and hold the plaintiff to a higher burden than is required in civil cases; and (3) generally in imposing a restriction on additional voir dire questions that they may not include any facts or law of the case.

3. Did the trial court err:

(1) in failing to observe the demeanor and tenor of prospective jurors or; if observation by the Court wasn’t being offered, in failing to assume that the demeanor and tenor of the prospective jurors exhibited extreme bias;

(2) in instructing and having the county clerk engage in rehabilitation [*3]  following an expression of bias, rather than explore the bias; and

(3) in limiting [the Triggs’] Counsel’s follow-up after an expression of bias by a potential juror.

The Triggs dispute the results of this system because the judge, lacking any firsthand perception of the jurors’ demeanor during the voir dire, ruled that all three of the jurors that the Triggs challenged were unbiased and impartial. The Triggs were then forced to exhaust three of four peremptory strikes to remove the challenged jurors. This left them with only one peremptory strike for the rest of the jury panel, which they used. On appeal, the Triggs attack the trial court’s voir dire process on various grounds. First and foremost, they argue that the judge erred by not striking for cause the three “potential jurors who exhibited such bias and prejudice that they could not have been fair[.]”

Here, however, the trial judge personally observed nothing; therefore, we see no reason to extend the McHugh deference standard in this situation, where only the attorneys and the clerk witnessed the physical and verbal cues that the challenged jurors exhibited. The trial judge acquired none of the wisdom or insight that he could have from noting a jurors’ furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language.

We, therefore, review de novo the Triggs’ challenge to Prospective Juror 29. The Triggs challenged this juror for cause on the grounds that she admitted she would favor medical practitioners.  Her sister and brother-in-law were both doctors. When asked if “in a close call” she “would tend to favor the medical profession,” Juror 29 replied, “Probably, yes.”  Her further explanation demonstrated empathy for medical professionals and indicated a bias in favor of the Hospital. She stated:

I see what they go through and I know how much they care about their patients and I know they would never do anything wrong. Obviously I realize there are people out there who aren’t my siblings. So obviously they might not be as fair and clear in judgment.

This answer shows her implicit trust for medical professionals. Juror 29 clearly viewed the patient/doctor relationship through the rose-colored glasses of familial love and admiration, and assumed the medical professionals sued in this case would do no harm. We, therefore, must disagree with the trial court’s conclusion that having a sister and brother-in-law who were physicians was simply a life experience that this juror brought to the case. By her own admission, her predisposition would have influenced her deliberations to some degree. This influence was a justifiable cause to exclude her from serving as juror in this case, where the Triggs have accused a healthcare provider of malpractice. Even “the slightest ground of prejudice is sufficient” to disqualify a potential juror. Shinal, 162 A.3d at 439, (quoting Commonwealth v. Lesher, 17 Serg. & Rawle 155, 1827 WL 2776 at 2 (Pa. 1828)). Our judicial system abhors even the appearance of partiality. “One of the most essential elements of a successful jury trial is an impartial jury.” Id. at 438 (citations omitted).

Having found error, we must next consider whether it was harmless. As noted above, the trial court’s ruling as to Juror 29 forced the Triggs to exhaust all of their peremptory challenges. In this situation, reversible error has occurred. See Commonwealth v. Penn, 2016 PA Super 19, 132 A.3d 498, 505 (Pa. Super. 2017) (citing Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509, 514 (Pa. Super. 1982) (holding “[w]here, as here, a defendant is forced to use one of his peremptory challenges to excuse a prospective juror who should have been excused for cause, and then exhausts his [peremptory strikes] before the jury is seated, a new trial will be granted.”)

Accordingly, we reverse the order denying a new trial and vacate the judgment entered upon the verdict. Based on our decision with respect to Juror 29, we need not address the remaining issues raised by the Triggs in this appeal. This matter is remanded for a new jury selection and trial.

Judgment vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.