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A Prospective Juror Who Shows Bias Must Be Disqualified, And No Deference Is Given To A Judge Who Is Absent From Voire Dire

June 12th, 2018

In Triggs v. Childrens’s Hospital, 2018 WL 2192218, (Pa. Super., May 14, 2018), the Pennsylvania Superior Court found that a prospective juror’s answers to voir dire questions in this medical malpractice case demonstrated bias in favor of the medical profession, and the court gave no deference to the trial judge because the judge was absent from voir dire.  The Superior Court reversed, and remanded the case for a new trial.

This case that was tried in Allegheny County.  The civil jury selection procedure in Allegheny County is presided over by a court clerk.  Individual jurors meet individually with the clerk and the parties’ attorneys in the Jury Assignment Room.  The clerk asks a series of standard questions, and the lawyers may pose five additional questions.  The clerk allows brief follow-up questions to flesh out the jurors’ replies.  If an attorney wishes to challenge a juror for cause, the clerk notes the challenge, and, after interviewing all potential jurors, the clerk and the attorneys return to the Calendar Control Judge’s courtroom.  There, the judge reads the transcript of the voir dire and rules on the challenge for cause.  In addition, an attorney may ask the juror to appear before the judge in chambers to recreate the initional voir dire.  In this case, the Plaintiffs did not ask that any of the jurors appear before the judge.

The Plaintiffs challenged a prospective juror because she admitted that she would favor medical practitioners.  The juror’s sister and brother-in-law were both doctors.  When asked if “in a close call” she “would tend to favor the medical profession,” she replied, “Probably, yes.”  In addition, she said,

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 not be as fair and clear in their judgment.

The Superior Court found that this juror’s responses demonstrated empathy for medical professionals and indicated a bias in favor of the hospital.  In addition, the court found that her answers showed an implicit trust for medical professionals.  She “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.”  The court held that this influence was justifiable cause to be excluded from the jury because “Our judicial system abhors even the appearance of partiality” and “One of the most essential elements of a successful jury trial is an impartial jury.”

The Superior Court noted that great deference is given to the trial judge because it is he or she who observes the juror’s conduct and hears the juror’s answers.  McHugh v. Proctor & Gamble, 776 A.2d 266, at 270 (Pa. Super. 2001), adopted by the Pennsylvania Supreme  Court in Shinai. V. Toms, _ Pa. _, 162 A.3rd 429, 443-442 (2017).  However, the Superior Court saw no reason to extend the McHugh deference standard in this case because “the trial judge observed nothing.”  In addition, the Superior Court held that the Plaintiffs did not waive their objection by failing to ask that the juror to appear before the judge because “re-questioning prospective jurors could never reproduce the authentic reactions that they displayed when the questions were originally asked.”

Before Bowes, J., Olson, J. and Kunselman, J.  Opinion by Kunselman.  Concurring statement by Bowes.

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