Pennsylvania Superior Court Questions Voir Dire Procedure in Recent Opinion
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On May 14, 2018, the Pennsylvania Superior Court issued an Opinion in which it reversed the Allegheny County trial court’s denial of Plaintiffs’, Mendy Trigg, et al., Motion for a New Trial; vacated the judgment in favor of Defendant, Children’s Hospital of Pittsburgh UPMC; and remanded the case for new jury selection and a new trial. See, Mendy Trigg, Individually, and Smithfield Trust, Inc., as the Guardian of the Estate of Jillian Trigg, a minor, v. Children’s Hospital of Pittsburgh of UPMC, 2018 PA Super 129. On appeal, Ms. Trigg contended that the Allegheny County jury selection process deprived Plaintiffs of their right to a fair trial in a negligence action against the hospital. The critical issue on appeal centered on whether the Allegheny County civil court practice of not assigning a trial judge to preside over the jury voir dire process resulted in prejudice to Plaintiffs when they were ultimately forced to exhaust three of their four peremptory strikes for cause to remove the challenged jurors despite the potential jurors’ obvious bias and partiality toward medical providers.
For years in Allegheny County, a court clerk has presided over jury selection in the Civil Division and a judge only gets involved in the process after the jury panel has been interviewed, if there are any challenges for cause that need to be considered. The judge rules on the challenges based upon review of either a transcript of the voir dire proceedings or representations made by the court clerk and counsel for the parties.
At the forefront of its Opinion, the Superior Court emphasized that “Our High Court place[s] great significance on the trial judge’s personal observation of the prospective jurors.” Having considered the trial court’s second-hand review of prospective Juror 29’s responses to voir dire, Judge Deborah A. Kunselman expressed that the trial judge in Trigg “acquired none of the wisdom or insight that he could have from noting a jurors’ furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language.” A concurring statement by Judge Mary Jane Bowes further questioned whether Allegheny County’s not having a judge preside over the voir dire process actually “results in sound disqualification determinations.” Moreover, the Concurring Opinion of the Superior Court proffered that “a fair and impartial jury is more likely to be achieved when the judge who is ruling on potential disqualification is present at voir dire to observe the potential juror’s demeanor as he or she answers questions.”
With the next Allegheny County civil trial term set for September of 2018, it is left to be seen whether the Administrative Judge will heed the admonitions and urgency of the Superior Court in Trigg and re-structure the long-existing civil jury selection procedure in the County.