Trial News

Following a recent decision clarifying how parties must handle a judge’s absence during voir dire, the Pennsylvania Supreme Court has vacated another ruling for a new trial in a case involving alleged errors in failing to strike certain jurors for cause. In a previous case, Trigg v. Children’s Hospital of Pittsburgh of UPMC, the court held that an objection to a judge’s absence during voir dire must be raised at that time or it is waived. (Smith v. Cordero, 262 WAL 2019 (Pa. May 19, 2020); Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 2020 WL 1932639 (Pa. Apr. 22, 2020).)

Ann Smith sued the doctor who treated her husband’s leg wounds, alleging a misdiagnosis led to an amputation that ultimately caused his death. The case was filed in Allegheny County, where prospective jurors must fill out a questionnaire describing certain personal information, including any relationships with people who work in the court system and insurance and health care professions. Counsel for both sides must prepare pretrial statements and any questions they want to ask the prospective jurors before voir dire. The trial judge typically is not present for voir dire, and the clerk of the court asks the panel a set of a standard questions, as well as the additional questions submitted by counsel. Counsel can follow up with individual jurors to further probe the answers they gave. After voir dire, the judge hears any for-cause challenges to strike jurors in chambers.

In Smith’s case, voir dire was conducted by the court clerk and was not transcribed. The plaintiff objected to three prospective jurors, and the trial judge heard the parties’ motions—that hearing was transcribed. Plaintiff counsel explained that the jurors in question expressed biased opinions during voir dire supporting caps on medical negligence damages and stating that “exorbitant” damages were keeping doctors from practicing medicine. Plaintiff counsel argued that all three jurors expressed similar opinions, while defense counsel argued that two of the jurors’ answers were not as detailed. The judge struck one juror but allowed the other two to remain on the panel. The plaintiff used its peremptory strikes, but one juror remained as an alternate.

After the jury returned a defense verdict and the plaintiff’s posttrial motions were denied, she filed an appeal arguing the judge erred by denying the two challenges for cause because he did not personally witness the voir dire process and the jurors’ demeanor. Citing Shinal v. Toms (162 A.3d 429 (2017)), the plaintiff argued that when evaluating whether a juror should have been struck, significant weight is placed on the trial judge’s observations and deference is given to those observations—but this deference does not apply if the judge is not present during voir dire.

The Pennsylvania Superior Court agreed, noting that even though the jurors stated they could be impartial despite negative views toward medical negligence cases, without the judge “present to hear the juror’s tone of voice and see the juror’s demeanor, we cannot know whether the jurors could be fair and impartial.” The defense appealed, and the Pennsylvania Supreme Court vacated the order and remanded the case to be reconsidered in light of its recent decision in Trigg.

In Trigg, the court reversed the grant of a new trial for errors related to striking biased jurors in another medical negligence case, concluding that the plaintiff waived her objection to the judge’s absence from voir dire and thus the judge’s inability to observe the juror’s demeanor by not raising it during voir dire.

When plaintiff counsel challenged several of the prospective jurors, the judge heard arguments in his chambers and used the transcript of the voir dire proceedings (which did not exist in Smith) to inform his decisions. He denied the motion to strike the jurors for cause, and plaintiff counsel used peremptory strikes to remove the jurors from the panel. The jury returned a defense verdict, and the plaintiff filed a posttrial motion for a new trial, arguing that the judge needed to be in the courtroom during voir dire “to observe the demeanor or tenor of the challenged [juror’s] answers.” The judge denied the motion, and the plaintiff appealed.

On appeal, the Pennsylvania Superior Court reversed, referencing Shinal and the importance of a judge being able to assess a prospective juror’s credibility firsthand. As a result, the judge could not properly observe a juror’s bias toward medical professionals, and the error was not harmless because it forced the plaintiff to use a peremptory strike on that juror.

The Pennsylvania Supreme Court disagreed, concluding that parties waive their objection to the judge’s absence in the courtroom if it is not raised during voir dire. If the objection had been raised during voir dire, the court reasoned, the judge would have had an opportunity to deal with it before the jurors were empaneled.