Allegheny County Jury Voir Dire Process
Dale Smith suffered from chronic medical conditions, including diabetes, kidney disease, and leg wounds and ulcers and presented to Marc Cordero, M.D. for treatment. Dr. Cordero diagnosed Mr. Smith as suffering from venous ulcers. Despite treatment, Mr. Smith required a leg amputation, and later died. Dale Smith’s wife, Ann Smith, as Executrix of the Estate of Dale Smith, sued Dr. Cordero and others, alleging that Dr. Cordero misdiagnosed Mr. Smith’s leg ulcers as venous ulcers, rather than arterial ulcers, resulting in improper treatment, which caused Mr. Smith’s leg amputation, and led to his death.
The matter proceeded to trial in Allegheny County, Pennsylvania. Unlike the majority of jurisdictions in the Commonwealth, a court clerk, not the trial judge, conducted the voir dire of the jury. The voir dire process allows attorneys for both sides to ask questions of potential jurors to determine if they can set aside their personal beliefs and be a fair and impartial juror. If during the questioning a juror demonstrates that he or she cannot be fair and impartial, then a party can move to strike the potential juror from the jury pool. In this case, Jurors No. 25, 37, and 45 provided affirmative answers to two questions:
[1.] Do you have any feelings or opinions about whether medical malpractice lawsuits affect the cost, availability and other medical services[?]
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[2.] Do you have any feelings or opinions as to whether there should be a minimum or maximum amount of money that can be awarded to an injured party?
Juror No. 37
Plaintiff’s position - Juror No. 37 had some pretty strong opinions and she responded to questions saying that she believes that there should be a maximum on jury awards and that due to the exorbitant awards. Further, she believes that malpractice cases are keeping doctors from practicing medicine.
Defendants’ position - Juror No. 37 was an intelligent and articulate woman who expressed that she had opinions regarding circumstances related a personal experience; she was raised in a small town where the circumstances were such because of the high cost of malpractice coverage, certain OB/GYN doctors failed to deliver babies; however, when asked whether she could be fair and impartial, she said “yes,” and stated that although she thought the verdicts were high and excessive she could “listen to the instructions and be fair and impartial.”
Juror No. 25
Plaintiff’s position - Juror No. 25 believed that juries award too much money in malpractice cases and malpractice cases drive up the cost of services, but she too stated she would follow the court’s instructions.
Defendants position - Juror No. 25 expressed no real detailed opinion and just answered in the affirmative and then moved
Juror No. 45
Plaintiff’s position - Juror No. 45 had similar responses to the above referenced jurors and said that she was strongly in favor of maximum awards.
Defendants’ position - The fact that the jurors have opinions doesn’t necessarily make them biased and the expression of that opinion by no means is an indication of bias.
The trial court granted the motion as to Juror No. 37, but denied it as to Jurors No. 25 and 45. Based upon the trial court’s ruling, Smith used a peremptory strike for one of the jurors and the other juror was an alternate. Smith used all peremptory strikes. Following a jury trial, the jury found in favor of the defendants. Smith filed post-trial motions, which were denied.
On appeal, relying on Trigg v. Children’s Hospital of Pittsburgh of UPMC, Smith maintained the trial judge erred in denying the motions to strike because the judge did not witness voir dire and therefore did not see the jurors’ conduct and demeanor. The trial court therefore “arbitrarily denied” the challenges; therefore, the Superior Court should conduct a de novo review of the denial of the motions to strike for cause and should not give the trial court’s decision any deference. Moreover, Smith argued that the jurors’ answers showed “far more than the requisite slightest ground of prejudice” toward malpractice cases, and that the denial of the motions for cause forced her to use a peremptory challenge.
Defendants claimed that Smith waived the issue because she did not challenge the absence of the trial judge during voir dire. The defendants also argued that Trigg was not applicable, because Trigg was decided after the jury selection in this case. Finally, the defendants contended that Smith did not argue that the jurors’ demeanor contradicted their statements and points out that the parties agreed on the recitation of facts provided to the court; therefore, the Superior Court should apply the abuse of discretion standard and affirm the trial court.
In applying Trigg, to the circumstances presented, the Superior Court determined Smith did not waive her claim by failing to object during voir dire because Trigg did not impose a requirement that a judge be present. It merely addressed the applicable appellate standard of review where a judge does not witness the voir dire.
The Superior Court then determined that, after applying a de novo review, and relying on the Supreme Court case of Shinal v. Toms, the trial court erred in denying the motions to strike Jurors No. 25 and 45 for cause. Specifically, the Court determined that the jurors expressed views that medical malpractice suits have affected the cost and availability of medical services and that there should be a minimum or maximum amount of money that may be awarded to an injured party. The Court explained that while the jurors stated that they could follow the court’s instructions and be fair and impartial, the trial judge was not present to hear the jurors’ tone of voice and see the jurors’ demeanor, therefore, the court could not determine whether the jurors truly could be fair and impartial. Therefore, the Superior Court concluded that because the jurors’ answers expressed the “slightest ground of prejudice” dismissal was required, and the court erred in denying Smith’s motion to dismiss the jurors for cause. Finally, the Court noted that while the verdict was 11 to one, Trigg held that where a party was forced to use a peremptory strike to strike a juror that should have been struck for cause, the error was not harmless, and a new trial was indicated.
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