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Pennsylvania Supreme Court Vacates Superior Court Grant Of New Trial For Trial Court’s Failure To Personally Observe Voir Dire

In an opinion authored by Justice Todd, the Supreme Court of Pennsylvania recently vacated the Superior Court's grant of a new trial based on the trial court's failure to personally observe the demeanor of prospective jurors who were challenged for-cause during voir dire [1]. The Pennsylvania Supreme Court held that Appellees waived their argument and therefore the Superior Court's decision was improper.

In Trigg v. Children's Hospital of Pittsburgh of UPMC, J-85-2019 (PA 2020), J.T., a minor, was afflicted with craniosynostosis, a medical condition resulting during an infant's growth and development when the skull prematurely closes and exerts increased pressure on the brain. J.T. underwent surgery at Children's Hospital of Pittsburgh ("Hospital") to correct the condition. Following surgery, during his recovery at the Hospital, J.T. fell out of bed and suffered damage to the surgically repaired cranial area, necessitating immediate ameliorative surgery. Appellees filed suit against the Hospital alleging that the Hospital was negligent in placing J.T. in an adult size bed due to the large spaces between the vertical and side rails, which Appellees allege enabled J.T.'s fall.

The case was initially brought in the Allegheny County Court of Common Pleas. In Allegheny County, all members of the prospective juror pool are required to fill out a written questionnaire wherein they provide, inter alia, general personal information such as age, occupation, family members, prior involvement in civil/criminal cases, and relationships with individuals employed by the court system, or by insurance or health care professions.

Further, in Allegheny County, although available to rule on objections, neither the calendar control judge, nor the trial judge is ordinarily present during the voir dire process. The voir dire process is normally managed by a court clerk. Under Allegheny County Local Rules, in medical malpractice cases, a group of prospective jurors is summoned to the jury assignment room and a court clerk asks the group of prospective jurors general questions enumerated in the rules regarding whether service constitutes a hardship, whether they have a social, business, or professional contract with the attorneys in the case, and whether they have social, business, professional, or employment relationships with any of the parties in the case. After the clerk describes the nature of the case, i.e. medical malpractice, and furnishes brief background details about the case, the attorneys for the plaintiff and the defendants give their respective voir dire statements indicating what they believe the evidence will show at trial. At the conclusions of the statements, the clerk asks the jurors whether they have any knowledge about the case. The witnesses in the case are then introduced by the attorneys and the clerk again inquires of the jurors whether they have any personal or familial association with those witnesses. Once the group questioning is complete, the clerk questions each of the prospective jurors individually. After the standard questions have been asked of each individual juror, the court clerk asks each individual juror the additional voir dire questions propounded by the parties. Once this process is complete, counsel for either party may ask reasonable follow up question to individual jurors.

In Trigg, 40 perspective jurors were summoned, and voir dire was conducted as described above. Of relevance, when prospective juror 29 was asked whether she had any feelings about medical malpractice cases which would cause her to favor one party over the other, she answered that her sister and brother-in-law were doctors, and her mother-in-law was a nurse. The clerk followed up by asking whether the juror could be fair and impartial, the perspective juror replied, "I would like to think I would be fair and impartial, but I mean, it just depends on the facts and everything presented." The juror stated she could follow the judge's instructions in arriving at a verdict and determining damages and that she could decide the case based on the facts and the law. Appellees' counsel further questioned perspective juror 29 about whether in a close call she would tend to favor the medical profession. The juror responded, "probably yes", on the basis that she had seen what those in the medical profession go through and how much they care about their patients, and she noted "I know they would never do anything wrong." Prospective juror 29 was subject to follow-up questioning by the court clerk in which she affirmed that she would be able to listen to the law as presented by the judge and that her family members' professions would not influence her judgment such that she could not render a fair and impartial verdict.

At the conclusion of voir dire, Appellees' counsel challenged prospective juror number 29 and two others for cause. The parties went to the chambers of the calendar control judge to discuss the for cause challenges. The judge read the transcript of the questioning of the prospective jurors. After evaluating the transcripts and hearing arguments by the parties, the calendar control judge denied Appellees' motion to strike the jurors in question for-cause. Appellees then used three of their four allotted preemptory challenges to exclude these jurors. At the end of the trial, the jury returned a verdict in the Hospital's favor. Appellees filed a post-trial motion alleging, inter alia, that the calendar control judge erred in denying their for-cause challenges. Specifically, Appellees argued that there was no opportunity for the trial court to observe the demeanor or tenor of the challenged venireman's answers. The motion was denied on the basis that there was no record that Appellees requested the judge view the prospective jurors' demeanor before ruling on the Motions to Strike For-Cause.

Appellees filed an appeal to the Superior Court raising issues which included that the trial court erred by not excluding the three prospective jurors at issue for bias and prejudice and by not observing the demeanor and tenor of the prospective jurors before denying the motion to strike them. Appellees argued that because the trial court erred in refusing to exclude the jurors, they were forced to use three of their four allotted preemptory challenges, causing them prejudice. The Superior Court reversed the trial court's opinion. In its reversal, the Superior Court focused its analysis on the trial court's denial of Appellees' for-cause challenge to prospective juror number 29, and to the trial court's lack of personal observation of the jurors' demeanor during voir dire. The Superior Court pointed to Shinal v. Toms [2], which endorsed a highly deferential standard of review of a trial court's ruling on a for-cause challenge to a particular juror because there is a great significance attached to the fact that the trial court has the opportunity to personally observe the juror during the voir dire process. The Superior Court noted that judges in Allegheny County never view the demeanor of prospective jurors unless counsel requests the juror appear before the judge to recreate the initial voir dire. The Superior Court rejected the Hospital's waiver argument. The Hospital pointed to the fact that during arguments before the calendar control judge, Appellees never objected to the trial court's lack of personal observation of prospective juror number 29's demeanor during voir dire, and Appellees did not request that the judge individually question the juror.

The Hospital filed a petition for allowance of appeal, which the Pennsylvania Supreme Court granted. The Pennsylvania Supreme Court found the issue of whether the Superior Court improperly considered the arguments regarding juror demeanor when those arguments were waived, to be dispositive. According to the Hospital, the issue for the Superior Court's consideration was whether the answers provided by the prospective jurors during voir dire provided a specific basis for disqualifying them based on actual prejudice or bias and it should have confined its analysis accordingly. The Hospital argued that the Superior Court erred by considering arguments related to the conduct and demeanor of the prospective jurors, and the lack of the judge's presence at voir dire, because said arguments were waived for purposes of appellate review, as they were not properly raised at the trial court by Appellees. Appellees responded that they could not have objected to the demeanor of the challenged jurors during voir dire because the trial judge was not present to rule on such objection, and there was no way to record the objection for appellate review. Further, Appellees contended that when they made an argument regarding the alleged bias of prospective juror 29, implicit in that argument was a commentary on her demeanor, and thus, they preserved the issue for appellate review. Appellees also argued that they properly preserved the issue of the trial court's lack of firsthand assessment of the jurors' demeanor during voir dire in their post-trial motions.

In its analysis, the Pennsylvania Supreme Court explained that the issue of waiver presents a question of law and therefore, the standard of review was de novo and the scope of review was plenary [3]. Further, issues not raised in lower courts are waived for purposes of appellate review and they cannot be raised for the first time on appeal [4]. Requiring issues to be properly raised first in the trial court ensures that trial judges have the opportunity to consider a potential appellate issue and correct any error at the first available opportunity [5].

In Trigg, the Pennsylvania Supreme Court ruled that Appellees waived their argument that the trial court erred by not observing the demeanor and tenor of prospective juror 29 during voir dire. The trial court record indicated that Appellees made no objection in pre-trial motions to the trial judge's absence from the jury assignment room during voire dire. Likewise, when Appellees made their challenge for-cause to the seating of prospective juror 29, they did not contemporaneously object to the trial judge's absence from the room during voire dire. Further, the transcript from the argument before the calendar control judge regarding juror 29 indicates that Appellees' challenge was predicated on the substance of the answers which she gave during voir dire (i.e., her familial relationship with members of the medical profession indicated her potential bias); the record does not support Appellees' claim that as part of their challenge for-cause, they implicitly raised issues concerning the inability of the trial judge to assess the demeanor of prospective juror 29 as she gave her answers. The fact that Appellees, in post-trial motions, alleged the trial court erred in not striking this juror for-cause because the trial court did not have the opportunity to observe the demeanor and tenor of her answers does not preserve the issue for review. Pa.R.C.P. 227.1 requires a party to raise an objection at trial, inter alia, by motion, or by a specific on the record objection in order to obtain post-trial relief. Appellees, in making their for-cause challenge to prospective juror 29, failed to raise with the trial judge any issue relating to his lack of observation of the juror's demeanor nor did Appellees request that the judge personally interview the juror. As a result, the trial judge was deprived of any opportunity to address and resolve the issue before the jury was finally empaneled.

The Supreme Court ruled that the Superior Court erred when it rejected the Hospital's claim of waiver. The Superior Court did not analyze the waiver claim in accordance with the well-established requirement for issue preservation. Rather the Superior Court essentially addressed the merits of the claim. The Pennsylvania Supreme Court vacated the Superior Court's order reversing the trial court and remanded the case to the Superior Court to consider further issues raised by Appellees.



[1] Voir dire generally describes the pre-trial process of examining prospective jurors in order to obtain a competent, fair, impartial and unprejudiced jury. 2 West's Pa. Forms, Civil Procedure § 54:0 at 1.

[2] Shinal v. Toms, 162 A.3d 429 (Pa. 2017).

[3] Stapas v. Giant Eagle, 198 A.3d 1033, 1037 (Pa. 2018).

[4] Pa.R.A.P. 302(a).

[5] In re F.C. III, 2 A.3d 1201, 1211 (Pa. 2010).


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