J-A08032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANN SMITH, AS EXECUTRIX OF THE : IN THE SUPERIOR COURT OF
ESTATE OF DALE SMITH, DECEASED, : PENNSYLVANIA
ON BEHALF OF HERSELF :
INDIVIDUALLY, SURVIVING SPOUSE :
OF THE DECEDENT, AND THE NEXT :
OF KIN OF DALE SMITH, AND ON :
BEHALF OF THE ESTATE OF DALE :
SMITH, DECEASED :
: No. 1166 WDA 2018
Appellants :
:
:
v. :
:
:
MARC CORDERO, M.D. AND UPMC :
MCKEESPORT, A DIVISION AND :
HOSPITAL OF THE UNIVERSITY OF :
PITTSBURGH MEDICAL CENTER AND :
UPMC WOUND HEALING SERVICES :
AT UPMC MCKEESPORT, A DIVISION :
OF UPMC MCKEESPORT AND THE :
UNIVERSITY OF PITTSBURGH :
MEDICAL CENTER :
Appeal from the Order Entered August 7, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-14-014061
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 16, 2019
In this medical malpractice case, Ann Smith, as Executrix of the Estate
of Dale Smith, deceased, on behalf of herself individually, the next-of-kin of
Dale Smith, and on behalf of the Estate (“Smith”), appeals the judgment
entered in favor of Marc Cordero, M.D., UPMC McKeesport, a division of the
University of Pittsburgh Medical Center and UPMC Wound Healing Services at
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UPMC McKeesport, a division of UPMC McKeesport and the University of
Pittsburgh Medical Center (collectively “UPMC”). We conclude the trial court
erred in denying Smith’s motions to strike two jurors for cause and that the
error was not harmless. We vacate the judgment and remand.
Dale Smith (“Decedent”), who suffered from diabetes, kidney disease,
and other ailments, visited Dr. Cordero due to leg wounds/ulcers. Smith claims
that Dr. Cordero misdiagnosed the leg wounds as venous, not arterial, and
this misdiagnosis caused Decedent to have his leg amputated. Smith alleges
this amputation caused a series of events that ultimately resulted in
Decedent’s death.
Jury selection commenced in March 2018. A court clerk, not the trial
judge, conducted the voir dire. The voir dire proceeding before the court clerk
was not transcribed. Smith made motions to challenge for cause Jurors No.
25, 37, and 45. The parties appeared before the trial judge for a hearing on
the motions. The hearing before the trial judge as to the challenges was
transcribed.
The motions to challenge for cause related to the jurors’ 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[?]
...
[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?
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N.T., 3/26/18-4/3/18, at 4-5.
Smith’s counsel explained to the court that 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, she believes that malpractice cases are keeping
doctors from practicing medicine.” Id. at 3-4. Counsel explained that “if
somebody . . . say[s] that malpractice cases in general are keeping doctors
from practicing, that’s an inherent belief that we’re not starting on the same
ground level. . . . She’s going in with a preconceived notion.” Id. at 4.
UPMC’s counsel stated that “it was clear that [Juror No. 37] was . . .
a[n] intelligent woman and an articulate woman who expressed that she had
opinions regarding circumstances.” Id. at 6. Counsel stated that Juror No. 37
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. You couldn’t get doctors to
deliver babies in [her] town.” Id. When asked whether she could be fair and
impartial, Juror No. 37 responded “yes” and stated that although she thought
the verdicts were high and excessive she could “listen to the instructions and
be fair and impartial.” Id. at 6-7.
Smith’s counsel stated that Juror No. 25 “believe[d] that jur[ies] award
too much money in malpractice cases and malpractice cases drive up the cost
of services.” Id. at 8. She also stated she would follow the court’s instructions.
Id. UPMC’s counsel stated that Juror No. 25 was “less expressive” than Juror
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No. 37 and that Juror No. 25 “expressed no real detailed opinion” and “just
answered [in] the affirmative and then moved on.” Id. at 9.
Smith’s counsel stated that Juror No. 45 had the same responses, and
said that “she was a little stronger on the maximum awards [and] . . . I believe
she said she believes in caps.” Id. at 10. He stated “[s]he has the fundamental
beliefs” regarding “malpractice cases and the amount of award[s that] have
no business on the panel.” Id. UPMC’s counsel stated that “[t]he 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.” Id.
The trial court granted the motion as to Juror No. 37, but denied it as
to Jurors No. 25 and 45.:
If I heard you guys correctly, for me I don’t seem to have a
problem with denying -- and again, this is the story that you
guys told me -- your motion Counsel, for number 25 and
45, I will deny those.
I have more of a problem with 37 so I’m inclined to strike
that. So I will allow the other two and sounds like I’ve heard
enough of number 37, so I would strike her. Grant your
motion on 37 and I will deny your motions on 25 and 45.
N.T., 3/26/18-4/3/18, at 13. 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 UPMC. Smith filed post-
trial motions, which were denied. Smith filed a timely Notice of Appeal.
Smith raises the following issues:
1. Whether the trial court erred in violation of Shinal v.
Toms, 162 A.3d 429 (Pa. 2017) by denying two of
Appellant’s jury challenges for cause without personally
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witnessing the voir dire process and failing to evaluate
the demeanor of the challenged jurors?
2. Whether the trial court erred in permitting testimony
from Appellee’s expert, Dr. Harold Brem, where Dr.
Brem’s expert report failed to set forth the grounds upon
which his opinions were based in direct violation of
Pa.R.C.P. 4003.5, and where his testimony went well
beyond the four corners of the report?
Smith’s Br. at 6-7.
Smith maintains the trial judge erred in denying the motions to strike,
noting the judge did not witness voir dire and therefore did not see the jurors’
conduct and demeanor. The court therefore “arbitrarily denied” the
challenges. Relying on Trigg v. Children’s Hospital of Pittsburgh of
UPMC, 187 A.3d 1013 (Pa.Super. 2018), petition for allowance of appeal
granted, 201 A.3d 145 (Pa. 2019), Smith contends that this 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. Further, she argues
that the jurors’ answers showed “far more than the requisite slightest ground
of prejudice” toward malpractice cases. Smith’s Br. at 40. Smith notes that
the denial of the motions for cause forced her to use a peremptory challenge.
UPMC responds that Smith waived the issue because she did not
challenge the absence of the trial judge during voir dire. UPMC further claims
that Trigg is not applicable. Here, because this Court decided Trigg after jury
selection occurred in this case, UPMC maintains that the Allegheny County
Court of Common Pleas was adhering to long-standing practice and that
applying Trigg would hinder the administration of justice. UPMC also notes
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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. UPMC therefore argues that this Court should apply the
abuse of discretion standard, and affirm the trial court.
In Trigg, the plaintiffs alleged that the “Allegheny County Civil Division’s
jury selection process deprived them of their right to a fair trial.” 187 A.2d at
1015. They alleged the failure to strike three prospective jurors for cause was
error and that the error was prejudicial. Id. at 1016. This Court described the
voir dire practice for Allegheny County civil cases, as used in that case.
According to the Trigg court, the court clerk and parties’ attorneys met with
the potential jurors. Id. If an attorney sought to challenge a potential juror
for cause, the clerk noted the challenge and, after interviewing all jurors, the
clerk and attorney returned to the courtroom of the calendar judge. Id. The
judge would then read the transcript and rule on the challenges for cause. Id.
In Trigg, after the above process, the trial judge ruled that three jurors should
not be struck for cause. Id. The plaintiffs used three of their four peremptory
strikes to remove the jurors. Id.
This Court in Trigg first addressed the deference we owe to the trial
court where the trial judge was not present for the juror questioning during
voir dire. We quoted a recent Pennsylvania Supreme Court case, which found
that where a “juror demonstrates a likelihood of prejudice by conduct or
answers to questions,” appellate courts defer to trial judges during voir dire
because the trial judge:
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[O]bserves 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.
Id. at 1017 (quoting Shinal v. Toms, 162 A.3d 429, 442 (Pa. 2017)). We
noted that the Supreme Court “placed great significance on the trial judge’s
personal observation of the prospective jurors,” and found there was no
reason to extend this deference where the trial judge was not present during
questioning. Id. We further noted that the trial judge in Trigg “acquired none
of the wisdom or insight that he could have from noting a juror’s furtive
glance, a tremor of voice, a delayed reply, a change in posture, or myriads of
other body language.” Id.
In Trigg, we also found that re-creating the initial questioning would
not result in deference, noting that re-questioning “could never reproduce the
authentic reactions [the jurors] displayed when the questions were originally
asked.” Id. We noted that, when absent from the room, the trial judge “misses
the crucial instant when would-be jurors reveal their inmost selves by both
words and actions.” Id. at 1018. We therefore concluded that the trial judge
“possess[ed] no greater skill at interpreting a transcript than an appellate
court,” and applied a de novo standard of review to motions to strike jurors
for cause where the trial judge was not present during juror questioning. Id.
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This Court in Trigg then applied a de novo review to determine whether
the court erred in denying one of the motions to strike for cause. There, a
juror admitted she would favor medical practitioners and stated her sister and
brother-in-law were doctors. Id. The juror replied “probably, yes” when asked
whether “in a close case,” she “would tend to favor the medical profession.”
Id. She further explained that she “see[s] what they go through and []
know[s] 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 might not be as fair and clear in judgment.”
Id.
This Court found the answer “shows her implicit trust for medical
professionals” and that she “clearly viewed the patient/doctor relationship
through the rose-colored glasses of familial love and admiration, and assumed
the medical professional sued in this case would do no harm.” Id. We therefore
concluded her predisposition would have influenced her deliberations to some
degree and the influence was a justifiable cause to exclude her from serving
as a juror. Id. at 1019. We reasoned that “[o]ur judicial system abhors even
the appearance of partiality” and “the slightest ground of prejudice is sufficient
to disqualify a potential juror.” Id. (internal quotation marks omitted). We
further found this error was not harmless, as the plaintiffs were forced to
exhaust all of their peremptory challenges. Id.
We now apply the above to the case before us. We must first address
UPMC’s claim that Smith waived the issue. We conclude she did not. Smith’s
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post-trial motion argued that the trial court erred in failing to strike the two
panel members. Further, 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. Trigg therefore applies to this
case and we will review the decisions to deny the motions to strike for cause
de novo.1
We must next determine whether, after applying a de novo review, the
trial court erred in denying the motions to strike Jurors No. 25 and 45 for
cause.
The Pennsylvania Supreme Court has explained the prejudice required
for disqualifying a juror as follows:
The law, in every case, is scrupulous to prevent even the
possibility of undue bias; it does not deal with a juror as
with a witness; admit him, though it doubts him; the
slightest ground of prejudice is sufficient. The prejudice
itself need not be made out; the probability of it is enough.
One related, though by marriage only, as remotely as the
ninth degree, to the defendant or the prosecutor, may be
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1 UPMC attempts to distinguish Trigg, claiming the juror in that case had a
close familial, financial, or situational relationship to the parties, such that de
novo review would apply, regardless whether the trial judge was present. See
Shinal, 162 A.3d at 441 (where the motion for cause is based on a “juror’s
relationship with the parties, counsel, victims, or witnesses” that is sufficiently
close, the appellate court “presume[s] the likelihood of prejudice” and reviews
the trial court’s decision de novo). This is inaccurate. The bias displayed by
the juror in Trigg was from the juror’s answers that she had family who were
medical professionals. Trigg, 187 A.3d at 1018; see also Shinal, 162 A.3d
at 441 (where motion for cause is based on alleged biased opinion, this Court
applies abuse of discretion standard). The juror did not have a relationship
with a party.
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challenged off the jury for that cause. Any one, who, in any
possible way, no matter how honestly, has been warped by
any preconceived opinion which may affect his verdict, or
has made up his mind what verdict he is to give, and
declared it, is excluded. Nothing in the law can well be more
extensive than this right of challenge propter affectum.
Shinal, 162 A.3d at 439 (quoting Commonwealth v. Lesher, 1827 WL 2776,
at *2 (Pa. 1828)).
Here, the jurors expressed their 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 jurors stated that they could follow the court’s
instructions and be fair and impartial. However, as the trial judge was not
present to hear the juror’s tone of voice and see the juror’s demeanor, we
cannot know whether the jurors truly could be fair and impartial. We therefore
conclude that the answers expressed the “slightest ground of prejudice”
required for dismissal and the court should have granted the motions for
cause. See Shinal, 162 A.3d at 439.
UPMC further claims that, even if the court erred in denying the motions
for cause, the error was harmless, noting the verdict was 11-1. Courts,
however, have found reversible error where a party was forced to use a
peremptory strike to strike a juror that should have been struck for cause.
See Trigg, 187 A.3d at 1019 (finding error in denying motion for cause not
harmless where plaintiff had to exhaust all peremptory challenges); see also
Commonwealth v. Penn, 132 A.3d 498, 505 (Pa.Super. 2016) (finding court
abused its discretion in denying motion to strike juror for cause and the error
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was not harmless because defendant forced to use peremptory challenge).
Here, Smith used all of her peremptory challenges. Therefore the error in
denying the motions was not harmless.
Because we conclude Smith is entitled to relief on her first claim, and
evidence may be different in the second trial, we decline to reach the second
claim.
Judgment vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2019
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