J-A18012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEANNA KEENE IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PAUL B. KIRSCH, M.D. AND
FOSTERBROOK MEDICAL ASSOCIATES,
P.C.
Appellants No. 1423 WDA 2016
Appeal from the Order August 29, 2016
In the Court of Common Pleas of McKean County
Civil Division at No(s): 2012-11112
BEFORE: BOWES, LAZARUS, AND OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 12, 2018
Paul Kirsch, M.D. and Fosterbrook Medical Associates, P.C., appeal
from the August 29, 2016 order granting Appellee Deanna Keene a new trial.
We reverse and remand for consideration of the remaining contentions
raised in Appellee’s post-trial motion.
This appeal concerns matters that occurred after a jury trial in this
medical malpractice lawsuit, which Appellee instituted against Appellants in
connection with Dr. Kirsch’s treatment of her after she suffered a heart
attack. After jury selection, which was not recorded due to an agreement
reached by the parties, the jury returned a verdict in favor of Appellants on
February 10, 2016. The verdict was ten to two. Appellee filed a timely
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motion for post-trial relief alleging, inter alia, that she had contacted the two
dissenting jurors, Barbara Lias and Sheila Potter, and had secured affidavits
from them.
These affidavits outlined various statements made by the other jurors
during deliberations. Pertinent to this appeal are the averments regarding
juror ten, Rod Johnson, and juror eleven, Jay McLaughlin. Ms. Lias reported
that Mr. Johnson “stated that either he or a member of his immediate family
had been a patient of the defendant, Dr. Kirsch[.]” Motion for Post-Trial
Relief, 2/18/16, at Affidavit One. Ms. Potter’s affidavit set forth the same
information about Mr. Johnson, i.e, that either he or a member of his
immediate family had been a patient of Dr. Kirsch. One affidavit also
indicated that Mr. McLaughlin revealed during deliberations that a member
of his immediate family was or had been a patient of Dr. Kirsch. Id. at
Affidavit Two.
On May 3, 2017, the trial court held a hearing on the post-trial motion.
The hearing was confined to the trial court’s concern that some jurors may
have given incorrect answers during voir dire that impacted Appellee’s ability
to exercise a challenge for cause. The court indicated that it intended to
hold a hearing on the subject. Appellants objected to the conduct of any
hearing based upon the affidavits of the two dissenting jurors, maintaining
that such a hearing would violate the rule against impeaching a jury verdict
based upon statements made during deliberations. After overruling that
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objection, the trial court articulated that it was aware that the absence of a
voir dire transcript affected its ability to decide the question, but Appellants
had supplemented the record with a document that confirmed that the
prospective jurors were asked whether they or a member of their immediate
family was or had been a patient of either Dr. Kirsch or any member of his
practice. Reply to Plaintiff’s Motion for Post-Trial Relief, 3/7/16, at Exhibit A.
With a single exception, there is no indication in the record as to how the
parties agreed to proceed if any juror answered that question affirmatively,
i.e, whether a juror would be questioned further on the subject or would be
dismissed for cause.
That exception is contained in the transcript of the May 3, 2016
hearing. Appellee’s counsel reported that the agreement was that Appellee
was allowed to ask about “patient relationships with Dr. Kirsch,” and the
parties agreed that “anybody with a patient relationship with Dr. Kirsch is
a per se for cause strike[.]” N.T. Hearing, 5/3/16, at 15 (emphases added).
Appellants’ counsel responded that he believed that such an arrangement
had been reached, and the trial court also indicated that such an accord was
consistent with its recollection of the proceedings. Id. Due to this
exchange, the record establishes that the parties agreed that any juror
would have been excused automatically had they indicated that they had
ever been Dr. Kirsch’s patient.
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Relevant herein is that, at no point during the May 3, 2016
proceeding, did either Appellee or Appellant indicate that they had agreed
that a juror could be automatically stricken for cause: 1) if an immediate
family member of a juror had been or was then a patient of Dr. Kirsch; or 2)
if a juror was a patient of one of the other doctors involved in Dr. Kirsch’s
practice.
The ensuing hearing occurred on May 18, 2016. The jurors who
testified at that hearing were the two dissenting jurors, Ms. Lias and Ms.
Potter, as well as juror ten, Mr. Johnson, and juror eleven, Mr. McLaughlin.
Mr. Johnson stated that neither he nor any member of his family was ever a
patient of Dr. Kirsch, n.t. hearing, 5/18/16, at 3, explaining that he was a
patient of one of the other doctors in Dr. Kirsch’s group, Dr. Rao Nadella.
Mr. Johnson reported that, prior to trial, he was unaware that Dr. Kirsch was
a member of Dr. Nadella’s practice and that he never knew Dr. Kirsch. Mr.
Johnson also unequivocally testified that, during voir dire, he had disclosed
that he was a patient of Dr. Nadella, and that he made that fact clear to the
attorneys.
Juror eleven, Mr. McLaughlin, stated that, while he was never one of
Dr. Kirsch’s patients, his mother was that doctor’s patient “for a brief period
of time” about four years before trial. Id. at 7. Mr. McLaughlin testified that
he did not personally know Dr. Kirsch and had never taken his mother, who
was deceased, to her medical appointments. When asked whether he knew
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if his “mother had an opinion regarding Dr. Kirsch, was she happy with the
care he provided?” Mr. Johnson responded, “As far as I know she was happy
with him, yes.” Id. at 11.
At that point, Mr. McLaughlin was asked if he recalled any of the
questions asked during voir dire. The trial court explained to Mr. McLaughlin
that, due to the absence of a transcript, “we can’t remember whether or not
jurors were asked whether they knew Dr. Kirsch. Do you remember
whether that question was asked?” Id. at 8. Mr. McLaughlin responded, “I
don’t believe that it was.” Id. at 8.1 Mr. McLaughlin then was asked
whether he had been questioned about whether he personally had been
treated by Dr. Kirsch,” and he again responded, “I don’t believe so.” Id.2
When asked about whether there was an inquiry as to “family members
being treated” by Dr. Kirsch, Mr. McLaughlin stated that he could not recall
whether that question was asked. Id. at 8, 9.
During her testimony at the May 18, 2016 hearing, Ms. Potter
retracted one of the affirmations in her affidavit by reporting that she did not
remember whether Mr. Johnson indicated during deliberations that he or a
member of his immediate family was a patient of Dr. Kirsch. Specifically,
____________________________________________
1This response was accurate in that the jury was not asked if they knew Dr.
Kirsch. See Footnote 3, infra; Appellee’s brief at 4.
2Mr. McLaughlin’s memory was faulty in this respect. Reply to Plaintiff’s
Motion for Post-Trial Relief, 3/7/16, at Exhibit A.
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the trial court asked, “Do you recall Mr. Johnson indicating whether he or a
member of his immediate family was a patient of Dr. Kirsch or a member of
Dr. Kirsch’s medical group?” She answered, “I don’t recall for sure, but I
think that he said that.” Id. at 18. Counsel asked a similar inquiry: “Did
Mr. Johnson, to your recollection, indicate during deliberations whether he
knew Dr. Kirsch?” Id. at 19. Ms. Potter responded, “I can’t remember that
part.” Id. Ms. Potter did report that Mr. McLaughlin told the jury that both
he and his brother had been a patients of Dr. Kirsch; this testimony was
inconsistent with the information in her affidavit, which had outlined that Mr.
McLaughlin said only that a member of his immediate family was a patient.
When asked about the inconsistency, Ms. Potter explained that it was “hard-
--to remember all this stuff.” Id. at 25. Ms. Potter was not asked, nor did
she indicate, whether Mr. McLaughlin reported during deliberations that he
viewed Dr. Kirsch favorably based upon Dr. Kirsch’s involvement with his
treatment of his brother and himself.
Ms. Lias testified that Mr. Johnson said during deliberations that either
his father or his brother had been Dr. Kirsch’s patient and that “Dr. Kirsch
had done a very nice job working with them[.]” Id. at 31. Ms. Lias did not
mention specifically Mr. McLaughlin.3
____________________________________________
3 We observe that Ms. Potter and Ms. Lias established that there were other
problems with jury selection. Specifically, these two dissenting jurors also
(Footnote Continued Next Page)
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The trial court granted a new trial. It concluded that Mr. Johnson and
Mr. McLaughlin had not answered the voir dire questions properly and that,
(Footnote Continued) _______________________
reported that one juror knew Dr. Kirsch because she was an emergency
medical technician and regularly worked with him; a different juror was Dr.
Kirsch’s next-door neighbor; and yet another juror was acquainted with Dr.
Kirsch because his wife was a nurse who had worked with him and liked him.
Appellee “concedes that jurors apparently were not asked by the court if
they knew Dr. Kirsch” and that “counsel for Plaintiff failed to object to such a
serious omission.” Appellee’s brief at 4 (emphasis in original). Additionally,
both Ms. Lias and Ms. Potter testified that one juror demanded that he be
named foreman and stated either that “he was tired of people suing other
people all the time” or “he doesn’t like people that go after money.” N.T.
Hearing, 5/18/16, at 17, 29.
The trial court indicated that the jurors were asked if they “had any
opinions or knowledge which would prevent them from being a fair and
impartial juror.” Trial Court Opinion, 8/29/16, at 7 n.3. The jury foreman
apparently failed to answer this inquiry honestly. While this question
outlined by the trial court was not included in the document establishing the
preliminary questions asked of the jury, Reply to Plaintiff’s Motion for Post-
Trial Relief, 3/7/16, at Exhibit A, there were two questions posed on this
issue in Appellee’s requested supplemental voir dire. Id. at Exhibit B,
question 18 (“Do you presently hold any opinions which would prevent you
from deciding a matter involving a claim of medical negligence or
malpractice on behalf of a patient at a hospital against the physician
responsible for treating the patient that would cause you difficulty in
rendering a verdict a favor of a patient based solely on the evidence
provided at trial and the law as it is given to you by the Court?”); Id. at
question 19 (“Do you have any moral, religious or philosophical objections to
someone who has been injured bringing a lawsuit against the party who
caused the injury to hold that party accountable for the harm it has
caused?”). While there were supplemental voir dire questions beyond those
outlined in Exhibit A of Appellants’ response to Appellee’s post-trial motion,
it is not clear from the record what questions were posed. The trial court is
free to address the apparent problems with the jury foreman upon remand,
and we direct the parties’ attention to Pa.R.A.P. 1923, which outlines a
procedure for ascertaining what transpired during a non-transcribed
proceeding.
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if they had, they would have been struck for cause either due to an
agreement reached by the parties or based upon the law. This appeal
followed. Appellants raise these issues:
1. Did the trial court err in ordering a new trial based upon
Plaintiffs claims relating to voir dire, where Plaintiff waived any
such claim as a matter of law by not making or requesting a
record of jury selection, and by not making any record of any
objections to the voir dire questions or process?
2. Did the trial court err in considering ex parte post-verdict
affidavits from jurors, which Plaintiff obtained in support of her
motion for new trial, in conducting an evidentiary hearing, and in
granting Plaintiff a new trial, all of which violated the well-settled
"no-impeachment" rule?
3. Did the trial court err and/or abuse its discretion in ordering a
new trial based upon that court's erroneous assumption that the
jurors in question would have been stricken by agreement or
under this Court's Cordes decision?
Appellants’ brief at 1.
We first outline the applicable standards when the trial court has
granted a new trial. A trial court has “broad discretion to grant or deny a
new trial,” and we review a decision on that question pursuant to the abuse-
of-discretion standard. Flenke v. Huntington, 111 A.3d 1197, 1199
(Pa.Super. 2015). There exists “a two-step process that a trial court must
follow when responding to a request for new trial.” Id. Initially, the court
must decide whether a mistake occurred at trial. Id. If an error did
transpire, the trial court must “determine whether the mistake was a
sufficient basis for granting a new trial.” Id. Specifically, the “harmless
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error doctrine underlies every decision to grant or deny a new trial” so that a
new trial “is not warranted merely because some irregularity occurred[.]”
Id. at 1199-1200. Instead, the party moving for a new trial “must
demonstrate to the trial court that he or she has suffered prejudice from the
mistake.” Id. at 1200. This Court then engages in the same two-step
process, and, in so doing, we are confined to reviewing the express reason
given for the grant of a new trial by the court so long as that court has
articulated its precise reasoning. Id.
Appellants’ first position is that Appellee waived her objection to the
conduct of voir dire since she assented to the failure to record that
proceeding. We decline to find waiver based upon the absence, by
agreement, of a transcript of the voir dire proceeding as there is sufficient
evidence of record to decide the matter before us. Nevertheless, the
absence of a transcript of that proceeding has impeded our ability to affirm a
key factual finding of the trial court, which is that the parties agreed that
any juror could be struck for cause automatically if they revealed that a
family member had been treated by Dr. Kirsch. We will more fully analyze
that issue in connection with our resolution of the third issue raised on
appeal.
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We next address Appellants’ second position, which is that the May 18,
2016 hearing was held in violation of the no-impeachment rule.4 While we
appreciate that the May 18, 2016 hearing may have included testimony that
violated the no-impeachment rule in this Commonwealth, the trial court’s
decision herein clearly was not premised upon what was said during
deliberations. Rather, the trial court concluded that Mr. Johnson and Mr.
McLaughlin failed to answer voir dire questions truthfully and that, if they
had, they would have been stricken for cause.
Specifically, in granting a new trial, the court “concluded that a new
trial is required because a failure in the voir dire process compromised the
integrity and fairness of the trial process.” Trial Court Opinion, 8/29/16, at
____________________________________________
4Pa.R.E. 606(b) embodies Pennsylvania’s no impeachment rule, Pratt v. St.
Christopher's Hosp., 866 A.2d 313 (Pa. 2005). It provides:
Upon an inquiry into the validity of a verdict, . . . a juror
may not testify as to any matter or statement occurring during
the course of the jury's deliberations or to the effect of anything
upon that or any other juror's mind or emotions in reaching a
decision upon the verdict or concerning the juror's mental
processes in connection therewith, and a juror's affidavit or
evidence of any statement by the juror about any of these
subjects may not be received. However, a juror may testify
concerning whether prejudicial facts not of record, and beyond
common knowledge and experience, were improperly brought to
the jury's attention or whether any outside influence was
improperly brought to bear upon any juror.
Pa.R.E. 606(b).
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1. It observed that a disclosure that would have disqualified a juror from
sitting in the first instance “does not implicate the jury deliberation itself, but
whether the juror should have been permitted to engage in the deliberation
in the first place.” Id. at 7 n.2. It found that, in response to specific
questions on the subject, Mr. Johnson failed “to disclose a patient
relationship between the juror and Dr. Kirsch’s partner in practice” and that
Mr. McLaughlin did not disclose a relationship between “the juror’s mother
and Dr. Kirsch.” Id. at 11. The trial court continued that “if those
relationships had been disclosed[,] the jurors would have been excused.” 5
Id. The conclusion that both jurors would have been automatically excused
for cause was premised upon the trial court’s interpretation of the prevailing
case law as well as its finding that counsel for Appellee and Appellants both
agreed that a venire man who revealed any type of relationship with Dr.
Kirsch could be excused for cause. See id. at 7 n.3 (“While there was no
record of voir dire, counsel did agree that any potential juror who disclosed
a relationship with Dr. Kirsch would be excused.”) (emphasis added).
We conclude that inquiry into whether a juror did not properly answer
questions during voir dire that would have led to removal for cause is not
____________________________________________
5 We note that the trial court expressly found that neither Mr. Johnson nor
Mr. McLaughlin was dishonest or disingenuous during jury selection. It
surmised that “they did not hear or did not understand or were confused by
the questions that were asked.” Id. at 11 n.4.
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prohibited by the no-impeachment rule,6 and agree with the trial court that
the inquiry pertains to whether the juror should have been allowed to
participate in the deliberations at all rather than what occurred during
deliberations. Our decision in Schwarzbach v. Dunn, 381 A.2d 1295,
(Pa.Super. 1977), while not expressly containing a discussion of the no-
impeachment rule, is instructive. In that decision, a new trial was awarded
to a defendant because, even though questioned on the subject matter, a
juror did not reveal a relationship that established that the juror would be
favorably inclined to find for the plaintiff. The case involved an automobile
accident wherein the plaintiff-passenger was severely injured in a vehicular
accident, and there were allegations against the car manufacturer, Jeep,
that its vehicle was defective.
After trial, Jeep discovered that the jury foreman was the husband of a
secretary in the law offices of the plaintiff’s attorney, and that the juror did
not affirmatively answer a question designed to ferret out relationships or
other biases that may have affected the juror’s ability to be impartial. This
Court determined that the relationship in question should have been
revealed through a correct response to the voir dire question and that the
____________________________________________
6 In maintaining that the trial court’s ruling herein violated the no-
impeachment rule, Appellants rely exclusively on the United States Supreme
Court's interpretation of the federal no-impeachment rule. Those cases are
not precedential, and we have applied case law from this Commonwealth.
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relationship was sufficiently close to establishing that the husband was
favorably inclined to find for the plaintiff. We observed that every litigant is
entitled to a fair trial, which includes “the right to be tried by an impartial
jury,” and held both that every juror has an affirmative duty to answer voir
dire questions truthfully and that a failure to do so warrants the grant of a
new trial if a party is prejudiced by the juror’s failure to respond
appropriately. Id. at 1297.
Similarly, in Commonwealth v. Rosario, 182 A.2d 75 (Pa.Super.
1962), we held that incorrect responses to voir dire questions misled
defense counsel, who was thereby unable to exercise his right to challenge
the jurors. Specifically, venire men were asked if they were related to any
law enforcement officers. Two jurors were parents of police officers and had
not answered that question properly. We affirmed the trial court’s decision
to award the defendant a new trial, reasoning that the incorrect responses
impacted on the defendant’s ability to challenge the jurors.
In conclusion, both Schwarzbach and Rosario support the trial
court’s finding that an incorrect response to a voir dire question that would
reveal a prejudicial predisposition for or against a party is grounds for a new
trial in this Commonwealth. We therefore affirm the court’s ruling that the
no-impeachment rule is not implicated in this setting.
We now address Appellants’ third issue, which is that the record does
not support the trial court’s determination that Mr. Johnson and Mr.
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McLaughlin would have been removed for cause either by agreement or
under the law. For the reasons that follow, we agree with their assessment
of the record and the law. Preliminarily, we must discuss the trial court’s
finding that Mr. Johnson had not revealed during voir dire that he had been
a patient of Dr. Nardella, who was part of Dr. Kirsch’s medical practice. This
finding was premised upon Mr. Johnson’s own testimony. See Trial Court
Opinion, 8/29/16 at 7 n.2 (“I have determined that a new trial is warranted
solely on the basis of the testimony of Juror Ten [Mr. Johnson] and Juror 11
[Mr. McLaughlin.]”).
The trial court’s ruling that Mr. Johnson failed to reveal that he was Dr.
Nardella’s patient is not in accord with the testimony provided by Mr.
Johnson, who insisted that he had told counsel about that fact during voir
dire and that he had made that relationship clear to counsel. Appellee
concedes herein that Mr. Johnson’s testimony cannot be refuted by the
record due to the absence of a transcript of the voire dire proceeding.
Appellee’s brief at 9 (“Despite the trial court’s conclusion that Juror 10 [Mr.
Johnson] did not disclose his long-term patient relationship with Dr. Kirsch’s
partner during voir dire, . . . the absence of a record of voir dire precludes
an appropriate review of the trial court’s determination on that issue.”); Id.
at 12 (“For purposes of this appeal, plaintiff agrees with defendants that in
the absence of a record of the voir dire proceedings, there is insufficient
record evidence to support the trial court’s determination that Juror 10 failed
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to disclose his patient relationship with Dr. Kirsch’s partner.”). Accordingly,
Appellee urges affirmance of the trial court’s grant of a new trial solely based
upon Mr. McLaughlin’s admitted failure to reveal that four years prior to trial,
his mother had briefly treated with Dr. Kirsch.
Thus, we now assess whether the record supports the trial court’s
determination that the parties agreed that a juror would be excused for
cause if they revealed that a close family member had ever been treated by
Dr. Kirsch. The trial court found, “While there was no record of voir dire,
counsel did agree that any potential juror who disclosed a relationship with
Dr. Kirsch would be excused.” Trial Court Opinion, 8/29/16, at 7 n.3
(emphasis added). This finding is not supported by a citation to the record
nor did the trial court indicate that it remembered that such an accord was
reached.
On the other hand, Appellants deny that they agreed that a venire
man who revealed any type of relationship with Dr. Kirsch could be excused
for cause. They maintain that the trial court “erroneously states [at footnote
3 of its August 29, 2016 opinion] that these two jurors would [have] been
stricken by agreement. There was no such agreement.” Appellants’ brief at
44. The record supports Appellants’ position. The only agreement placed on
the record was as follows. Appellee’s counsel reported that the agreement
was that Appellee was allowed to ask about “patient relationships with Dr.
Kirsch,” and the parties agreed that “anybody with a patient relationship
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with Dr. Kirsch is a per se for cause strike[.]” N.T. Hearing, 5/3/16, at 15
(emphases added). At no point did either Appellants or Appellee indicate
that they had agreed that a juror could be stricken automatically if a family
member of a juror had been Dr. Kirsch’s patient. See Appellants’ brief at 44
(The agreement did not apply to Mr. Johnson or Mr. McLaughlin). Due to the
absence of a voir dire transcript, there is no support for a finding that such
an agreement was reached.7
Therefore, we must now determine whether Mr. McLaughlin would
have been stricken for cause under the pertinent law had he revealed that
his mother briefly was a patient of Dr. Kirsch four years prior to trial. Our
Supreme Court in Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017),
reaffirmed longstanding precedent that one of the “most essential elements
of a successful jury trial is an impartial jury.” (quoting Bruckshaw v.
Frankford Hosp. of City of Phila., 58 A.3d 102, 109 (Pa. 2012)). The
Shinal Court observed that juror impartiality is protected by the voir dire
process, which is utilized to ascertain whether the jury has either any actual
bias or partially or the appearance of partiality of bias with respect to, inter
alia, the parties.” It noted: “Challenges for cause are essential means by
____________________________________________
7 In suggesting that the agreement would have encompassed Mr.
McLaughlin, Appellee merely relies upon the trial court opinion, which
provides no citation to the record, and the transcript of the May 3, 2016
hearing, which supports that the agreement extended only to venire men
with a patient relationship to Dr. Kirsch.
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which to obtain a jury that in all respects is impartial, unbiased, free from
prejudice, and capable of judging a case based solely upon the facts
presented and the governing law.” Shinal, supra at 438. There are two
scenarios mandating the grant of a challenge for cause: 1) when a juror’s
relationship with a party is sufficiently close that the courts presume the
likelihood of prejudice; and 2) when the juror reveals a likelihood of
prejudice through his or her conduct and answers to questions. Id.
Herein, the trial court applied then-controlling precedent provided by
the fractured en banc decision in Cordes v. Assocs. of Internal Med., 87
A.3d 829 (Pa.Super. 2014) (en banc), as that decision discussed the present
scenario, i.e., a relationship between a defendant doctor and a juror’s close
family member.8 Therein, a juror’s wife had an existing patient relationship
with the defendant doctor. Another juror’s parents also had an extant
relationship with that doctor, and had been told by her parents that they
treated with the doctor regularly and liked her. The trial court refused to
excuse the two jurors in question for cause. This Court reversed.
____________________________________________
8 While Appellants suggest we should apply Shinal v. Toms, 162 A.3d 429
(Pa. 2017), and reverse on its basis, we disagree. That decision involved
employment relationships of family members of jurors rather than patient-
care relationships, which this case involves. Moreover, the pertinent issue is
whether Appellee could have exercised a challenge for cause when this jury
was chosen rather than under law that was not yet in existence. When jury
selection occurred herein, Cordes was precedential.
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A majority of the Court agreed that any juror whose spouse has an
existing patient relationship with a defendant doctor should automatically be
removed for cause. Then-Judge, now Justice Wecht, who was joined by
Judge Bender, concluded that the same result should apply to any juror
whose parents had a current patient relationship with a defendant doctor.
Thus, Judge Wecht and Judge Bender placed both an existing spousal
relationship with a defendant doctor and a current parental relationship with
the doctor in the category of presumed prejudice.
Then-Judge, now Justice Donohue, who was joined by now-President
Judge Gantman as well as Judge Ott, wrote a concurring opinion. Those
jurists agreed with the presumption of prejudice when a juror’s spouse is
currently being treated by the defendant. However, they disagreed that the
existence of an extant relationship between the defendant doctor and a
juror’s parent requires automatic removal from the jury panel under the
presumption-of-prejudice standard, observing that not all adults have an
intimate involvement in their parents’ medical care or their medical
providers. Justice Donohue, however, did agree that the juror under
consideration in Cordes should have been removed for cause because her
questioning revealed the appearance of bias or prejudice in favor of the
doctor. Justice Donohue relied upon the juror’s revelations that she was
close to her parents, knew about their medical treatment, and was aware of
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their positive perception of the defendant doctor, who was her parents’
active treating physician.
In this case, Mr. McLaughlin reported that, while he was never one of
Dr. Kirsch’s patients, his deceased mother had been his patient “for a brief
period of time” about four years before trial. N.T. Hearing, 5/18/16, at 3.
Mr. McLaughlin continued that he did not personally know Dr. Kirsch and had
never taken his mother to her medical appointments. When asked whether
he knew if his “mother had an opinion regarding Dr. Kirsch, was she happy
with the care he provided?” the juror responded, “As far as I know she was
happy with him, yes.” Id. at 11.
It is clear that Mr. McLaughlin would not have been removed for cause
under either Justice Wecht’s or Justice Donohue’s views in Cordes. First,
Mr. McLaughlin’s mother was not a current patient of Dr. Kirsch at the time
of trial, having briefly treated with him four years prior thereto. Second, Mr.
McLaughlin reported that he was uninvolved in her medical care, did not
take her to appointments, and had no definitive knowledge as to whether his
mother was satisfied with Dr. Kirsch’s treatment. While the trial court
indicated that testimony from Ms. Potter and Ms. Lias supported his decision
herein, Trial Court Opinion, 8/26/16, at 7 n.2, we cannot agree with this
assessment. Ms. Potter was apparently confused about Mr. McLaughlin,
stating that Mr. McLaughlin indicated that both he and his brother were
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currently under Dr. Kirsch’s care. Ms. Lias did not testify specifically about
Mr. McLaughlin.
Thus, we conclude that the precise reason offered by the trial court in
support of a grant of a new trial, which was that Mr. McLaughlin would have
been automatically excused from the jury panel by agreement or under the
law, was an abuse of discretion. Additionally, even if Mr. McLaughlin should
not have been seated on the jury, it is evident that Appellee was not
prejudiced by his presence. His connection to Dr. Kirsch was simply too
attenuated to establish prejudice under the standards applicable to warrant
of a new trial.
While Appellants request that judgment be entered on the verdict, we
observe that Appellee’s remaining post-trial motions were not addressed by
the trial court so that such relief is inappropriate.
Order reversed. Case remanded for further proceedings consistent
herewith. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2018
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Keene, D. v. Kirsch, P.
Combined Opinion