Jury Selection; McHugh Deference
Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 187 A.3d 1013 (Pa. Super. 2018), allocatur granted Jan. 23, 2019, appeal docket 3 WAP 2019
Mendy Trigg (Jillian Trigg’s mother) and Smithfield Trust, Inc. (guardian of Jillian Trigg’s Estate) (collectively, the Triggs) filed suit against Children’s Hospital of Pittsburgh of UPMC (Hospital) in the Allegheny Court of Common Pleas alleging that the Hospital injured Jillian Trigg during her recovery from surgery. The jury entered a verdict in favor of the Hospital.
Triggs appealed to Superior Court, alleging the trial court erred in denying the Trigg’s motion to strike for cause when a potential juror displayed bias and prejudice in favor of medical professionals.
Pennsylvania Rule of Civil Procedure 220.3(c) provides, “[t]he parties or their attorneys may conduct the examination of the prospective jurors unless the court itself conducts the examination or otherwise directs that examination be conducted by a court employee. Any dispute shall be resolved by the court.” The Civil Division of the Allegheny Court of Common Pleas interprets the rule to allow court clerks to preside over voir dire, rather than the presiding judge of each civil case. The Civil Division still requires a judge to rule on any challenges of jurors stricken for cause, but the judge is not required to witness the initial questioning that gave rise to the challenge, and only observes the demeanor of the prospective juror if the challenging lawyer asks for the juror to appear before the judge, where the voir dire is then re-enacted. Otherwise, the judge merely reads the transcript of the voir dire as the basis for his determination.
In this case, the clerk took notes of, and the Calendar Control Judge overruled, the Triggs’ challenges of Potential Jurors 28, 29, and 37, all of whom Triggs’ counsel sought to strike for cause based on displayed bias and prejudice in favor of medical professionals. Triggs’ counsel did not request that the judge reenact the voir dire, the judge ruled on the basis of the transcript, and Triggs then argued that the results were prejudicial 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, leaving them with only one peremptory strike for the rest of the jury panel, which they used. The Triggs argued 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[.]” Slip Op. at 4.
The Hospital argued that Triggs had waived any challenge to the process by failing to demand a reenactment of the voir dire before the Calendar Control Judge and that Superior Court must defer to the trial judge’s determination pursuant to the palpable-error deference standard announced in McHugh v. Proctor & Gamble, 776 A.2d 266 (Pa. Super. 2001), which provides: “[w]hen a juror demonstrates a likelihood of prejudice by conduct or answers to questions, much depends on the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in the case of palpable error.” Slip Op. at 4.
Refusing to extend the McHugh deference standard, Superior Court noted that “trial judges possess no greater skill at interpreting a transcript than an appellate court.” As the Supreme Court explained:
We defer to the trial judge because it is he or she that observes the juror’s conduct and hears the juror’s answers. The juror appears before the trial judge, who sees him and hears what is said; and is able to form his opinion as much from the proposed juror’s conduct as from the words which he utters, printed in the record. Hesitation, doubt, and nervousness indicating an unsettled frame of mind, with other matters, within the judge’s view and hearing, but which it is impossible to place in the record, must be considered. As it is not possible to bring these matters to our attention, the trial judge’s view should be given great weight in determining the matters before him.
Slip Op. at 5 (quoting Shinal v. Toms, 162 A.3d 429, 442-443 (Pa. 2017)). Applying this reasoning, Superior Court concluded McHugh deference was inappropriate to the Triggs’ case “where only the attorneys and the clerk witnessed the physical and verbal cues that the challenged jurors exhibited” and “the trial judge personally observed nothing.” Slip Op. at 5.
Rejecting the waiver argument, Superior Court focused again on the importance of the judge witnessing witness demeanor first hand and at the initial encounter. As the court succinctly observed: “the responses will not be as genuine the second time around.” Slip Op. at 6.
Moreover, the Superior Court found that the trial judge’s erroneous ruling was prejudicial to the Triggs. Even “the slightest ground of prejudice is sufficient” to disqualify a potential juror. Shinal, 162 A.3d at 439, (quoting Commonwealth v. Lesher, 1827 WL 2776 at 2 (Pa. 1828)). Juror 29, by her own admission, showed partiality toward medical professionals due to her familial relation to two physicians. The court found her answer shows implicit trust for medical professionals “through the rose-colored glasses of familial love and admiration.” As the Triggs’ case rested on an accusation of malpractice against a healthcare provider, Superior Court agreed her predisposition was a justifiable cause to exclude her from the jury pool. Superior Court also found that reversible error had occurred due to the impact the error had on the Triggs’ case. Because the Triggs were forced to exhaust a peremptory challenge on Juror 29, and they exhausted all other peremptory strikes, the court determined the Triggs were unfairly prejudiced during voir dire.
Superior Court reversed and remanded the case for a new jury selection and trial, holding that: (1) the McHugh “palpable error” standard “shall be limited to instances where a trial judge has personally observed the original voir dire;” (2) the standard of review shall be de novo in a case where the trial judge based his rulings on challenges for cause solely upon reading the transcript; and (3) the error is not harmless where a party is forced to exhaust all of their peremptory challenges due to an error of the trial judge.
The issues the Supreme Court will decide, as stated by the Court in its grant of appeal, are:
- Whether the Superior Court’s decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the “palpable error” abuse of discretion standard of review and properly defer to the trial court?
- Whether the Superior Court’s holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence?
- Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?
- Whether the Superior Court erred by determining that Respondents were prejudiced by the trial court by requiring Respondents to use a peremptory challenge for Prospective Juror 29?
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If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.