J-A02039-18

                                  2018 PA Super 129



    MENDY TRIGG, INDIVIDUALLY, AND                    IN THE SUPERIOR COURT
    SMITHFIELD TRUST, INC., AS THE                              OF
    GUARDIAN OF THE ESTATE OF                              PENNSYLVANIA
    JILLIAN TRIGG, A MINOR,

                             Appellants

                        v.

    CHILDREN’S HOSPITAL OF
    PITTSBURGH OF UPMC,

                             Appellee                   No. 1041 WDA 2017


                Appeal from the Judgment entered June 28, 2017,
               in the Court of Common Pleas of Allegheny County,
                     Civil Division, at No(s): GD 13-002322.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.:                                 FILED MAY 14, 2018

        Mendy Trigg (Jillian Trigg’s mother) and Smithfield Trust, Inc. filed this

appeal following a jury verdict in favor of Children’s Hospital of Pittsburgh of

UPMC. 1 The Triggs claim that Allegheny County Civil Division’s jury selection

process deprived them of their right to a fair trial. The Hospital insists that

the palpable-error deference standard announced in McHugh v. Proctor &

Gamble, 776 A.2d 266 (Pa. Super. 2001), requires us to affirm. However,

for the reasons that follow, we cannot extend the McHugh deference standard
____________________________________________


1Smithfield Trust, Inc. is guardian of Jillian Trigg’s estate. For simplicity sake,
we will refer to the Appellants as “the Triggs” and the Appellee as “the
Hospital.” The Hospital allegedly injured Jillian Trigg during her recovery from
surgery, but that is beyond the scope of this appeal.
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to trial judges who fail to observe voir dire in person. After reviewing the

Triggs’ challenge to Prospective Juror 29 de novo, we reverse and remand for

a new trial.

      The Triggs submitted three questions on appeal, all of which challenge

the jury selection process in this case:

     1. Did the trial court err in denying the [Triggs’] Motions to Strike
        for Cause potential jurors who exhibited such bias and
        prejudice that they could not have been fair and should have
        been stricken from the panel, which required the [Triggs] to
        use 3 of [their] 4 [peremptory] strikes to remove these
        potential jurors causing obvious prejudice to the [Triggs].

     2. Did the trial court err specifically when it denied the [Triggs’]
        request to ask voir dire questions of the venire about (1) the
        [Hospital] and its relationship in the community, especially in
        light of [the Hospital’s] opening statement when these issues
        were placed before the jury without any voir dire examination,
        (2) unintentional harm, since many jurors do not understand
        the burden of proof and hold the plaintiff to a higher burden
        than is required in civil cases; and (3) generally in imposing a
        restriction on additional voir dire questions that they may not
        include any facts or law of the case.

     3. Did the trial court err:

               (1)   in failing to observe the demeanor and tenor of
                     prospective jurors or; if observation by the Court
                     wasn’t being offered, in failing to assume that the
                     demeanor and tenor of the prospective jurors
                     exhibited extreme bias;

               (2)   in instructing and having the county clerk engage in
                     rehabilitation following an expression of bias, rather
                     than explore the bias; and

               (3)   in limiting [the Triggs’] Counsel’s follow-up after an
                     expression of bias by a potential juror.



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J-A02039-18


Triggs’ Brief at 5-6.2

       Specifically, with respect to the first question, the Triggs argue that

prospective Jurors 28, 29 and 37 should have been stricken for cause, and the

failure to strike these jurors for cause was prejudicial. Triggs’ Brief at 15-23.

Our analysis of questions 1 and 3 (1) with respect to Juror 29 disposes of this

appeal.

       The Civil Division of the Court of Common Pleas of Allegheny County

does not assign a trial judge to preside over jury selection.         Instead, the

“Calendar Control Judge” delegates that duty to a court clerk in the Jury

Assignment Room.         See N.T., 3/17/17, at 3, 15.       Potential jurors meet

individually with the clerk and the parties’ attorneys. Id. at 23. The clerk

asks a series of standardized questions, and then the lawyers may pose five

additional inquires. Id.      The clerk permits brief follow-up questions to flesh-

out the jurors’ replies. Id. at 27.

       If an attorney wishes to challenge a juror for cause, the clerk notes the

challenge, and, after interviewing all potential jurors, the clerk and attorneys

return to the Calendar Control Judge’s courtroom. Id. at 201.           There, the


____________________________________________


2 We previously addressed a claim regarding Allegheny County Civil Division’s
voir dire process in Starr v. Allegheny General Hospital, 451 A.2d 499 (Pa.
Super. 1982). In that case, however, we noted that the appellant did not argue
the procedure used “caused a partial and prejudiced jury to be impaneled.”
Id. at 501. This is the Triggs’ essential claim in this case. Instead, in Starr,
the appellant contended that a deputy clerk reading questions approved by
the court was, in itself, inherently prejudicial. We found no abuse of discretion
in permitting the deputy clerk to read the voir dire questions to the prospective
jurors. Id. at 502.

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judge, reading the transcript of what occurred just moments ago, and only a

few yards away, rules on the challenges for cause. Id. at 202, 203, 206.

      The Triggs dispute the results of this system because the judge, lacking

any firsthand perception of the jurors’ demeanor during the voir dire, ruled

that all three of the jurors that the Triggs challenged were unbiased and

impartial. The Triggs were then forced to exhaust three of four peremptory

strikes to remove the challenged jurors.       This left them with only one

peremptory strike for the rest of the jury panel, which they used. On appeal,

the Triggs attack the trial court’s voir dire process on various grounds. First

and foremost, they argue that the judge erred by not striking for cause the

three “potential jurors who exhibited such bias and prejudice that they could

not have been fair[.]” Triggs’ Brief at 5.

      The Hospital counters that precedent requires us to defer — and defer

greatly — to the trial judge. It reminds us “[w]hen a juror demonstrates a

likelihood of prejudice by conduct or answers to questions, much depends on

the answers and demeanor of the potential juror as observed by the trial judge

and therefore reversal is appropriate only in the case of palpable error.”

Hospital’s Brief at 19, quoting McHugh, 776 A.2d at 270 (Pa. Super. 2001)

(emphasis added by Hospital).     By emphasizing the case’s conclusion, the

Hospital misses McHugh’s point entirely.

      The Supreme Court of Pennsylvania, in adopting McHugh, recently

explained:




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J-A02039-18


          We defer to the trial judge because it is he or she that
          observes 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. As it is not possible to bring these matters to
          our attention, the trial judge's view should be given great
          weight in determining the matters before him.

Shinal v. Toms, 162 A.3d 429, 443-442 (Pa. 2017) (citations and some

punctuation omitted) (emphasis added).           Our High Court placed great

significance on the trial judge’s personal observation of the prospective jurors.

       Here, however, the trial judge personally observed nothing; therefore,

we see no reason to extend the McHugh deference standard in this situation,

where only the attorneys and the clerk witnessed the physical and verbal cues

that the challenged jurors exhibited. N.T., 3/17/17, at 15. The trial judge

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.

       Allegheny County judges in the civil division do not view the demeanor

of prospective jurors, unless an attorney asks for the juror to appear before

the judge in chambers to recreate the initial voir dire.3 The Hospital contends
____________________________________________


3 We understand the vior dire process differs in the criminal division in
Allegheny County. There, the trial judge, as opposed to a calendar control
judge, is assigned to preside over voir dire. Although our decision would apply



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J-A02039-18



that the Triggs’ failure to request a recreation of the initial questioning in this

case constitutes waiver of this issue. Hospital’s Brief at 29. We disagree. Re-

questioning prospective jurors could never reproduce the authentic reactions

that they displayed when the questions were originally asked. As the Triggs

correctly observed, “the time to assess the demeanor had passed…you only

get one chance to make a first impression.”             Triggs’ Reply Brief at 2.

Additionally, if jurors are individually summoned from the panel to the

Calendar Control Judge’s chambers for re-questioning, those jurors will have

had extra time to rethink their answers. They may even suspect there was a

problem with their original responses and try to “fix” them. In any event, the

responses will not be as genuine the second time around.

       A judge personally witnessing the original voir dire is essential, because

it justifies our — and a losing party’s — faith in the trial court’s rulings on

challenges for cause. The Hospital argues that the judge’s absence from “the

room when the jurors were being questioned…is a red herring.” Hospital’s

Brief at 28. Again, the Hospital is mistaken. The knowledge gleaned from in-

person observations is “impossible to place in the record, [but] must be

considered.” Shinal, supra. An absentee judge misses the crucial instant


____________________________________________


in either a civil or a criminal case, (i.e. a deferential standard to a trial court’s
ruling on a motion to dismiss a juror for cause will only be used when the trial
judge witnessed the prospective juror’s responses), we make no decision
regarding the standard of review if a party in criminal court chooses to waive
the judge’s presence for voir dire.



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J-A02039-18



when would-be jurors reveal their inmost selves by both words and actions.

Id.

       Lastly, the Hospital attempts to excuse the judge’s absence by relying

on Rule of Civil Procedure 220.3(c).4 That Rule’s Official Note provides: “The

parties or their attorneys may conduct the examination of the prospective

jurors unless the court itself conducts the examination or otherwise directs

that the examination be conducted by a court employee. Any dispute shall be

resolved by the court.” Note to Pa.R.C.P. 220.3.     The Note allows a clerk to

ask questions on the court’s behalf; ruling on challenges for cause remains a

judge’s obligation.

       By not contemporaneously observing the jurors’ responses, when ruling

on challenges for cause, the trial judge in this case deprived himself of any

greater perception of the jurors’ partiality than an appellate court can discern

by reviewing the same, cold record. Thus, McHugh’s rationale for reversing

only in the face of palpable error does not apply here. We hold, therefore,

that the McHugh deference standard shall be limited to instances where a

trial judge has personally observed the original voir dire. That did not occur

in this case.

       Trial judges possess no greater skill at interpreting a transcript than an

appellate court. This situation is analogous to an appellate court’s review of
____________________________________________


4 Pa.R.C.P. 220.3(c) provides: “The court may provide for voir dire to include
the use of a written questionnaire.       However, the use of a written
questionnaire without the opportunity for oral examination by the court or
counsel is not a sufficient voir dire.”

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J-A02039-18



a contract. When a trial court’s interpretation of a contract is on appeal, “our

standard of review is de novo and our scope of our review is plenary.” In re

Estate of Easterday, 171 A.3d 911, 919 (Pa. Super. 2017).         This standard

shall likewise apply when, as in this case, the trial judge based his rulings on

challenges for cause solely upon reading the transcript.

        We, therefore, review de novo the Triggs’ challenge to Prospective Juror

29.     The Triggs challenged this juror for cause on the grounds that she

admitted she would favor medical practitioners. N.T., 3/17/17, at 203. Her

sister and brother-in-law were both doctors. When asked if “in a close call”

she “would tend to favor the medical profession,” Juror 29 replied, “Probably,

yes.”     Id.   Her further explanation demonstrated empathy for medical

professionals and indicated a bias in favor of the Hospital. She stated:

           I see what they go through and I know 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. at 149.

        This answer shows her implicit trust for medical professionals. Juror 29

clearly viewed the patient/doctor relationship through the rose-colored

glasses of familial love and admiration, and assumed the medical professionals

sued in this case would do no harm. We, therefore, must disagree with the

trial court’s conclusion that having a sister and brother-in-law who were

physicians was simply a life experience that this juror brought to the case. By



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J-A02039-18



her own admission, her predisposition would have influenced her deliberations

to some degree. This influence was a justifiable cause to exclude her from

serving as juror in this case, where the Triggs have accused a healthcare

provider of malpractice. Even “the slightest ground of prejudice is sufficient”

to disqualify a potential juror.        Shinal, 162 A.3d at 439, (quoting

Commonwealth v. Lesher, 1827 WL 2776 at 2 (Pa. 1828)). Our judicial

system abhors even the appearance of partiality. “One of the most essential

elements of a successful jury trial is an impartial jury.” Id. at 438 (citations

omitted).

      Having found error, we must next consider whether it was harmless. As

noted above, the trial court’s ruling as to Juror 29 forced the Triggs to exhaust

all of their peremptory challenges.     In this situation, reversible error has

occurred.      See Commonwealth v. Penn, 132 A.3d 498, 505 (Pa. Super.

2017) (citing Commonwealth v. Johnson, 445 A.2d 509, 514 (Pa. Super.

1982) (holding “[w]here, as here, a defendant is forced to use one of his

peremptory challenges to excuse a prospective juror who should have been

excused for cause, and then exhausts his [peremptory strikes] before the jury

is seated, a new trial will be granted.”)

      Accordingly, we reverse the order denying a new trial and vacate the

judgment entered upon the verdict. Based on our decision with respect to

Juror 29, we need not address the remaining issues raised by the Triggs in

this appeal.    This matter is remanded for a new jury selection and trial.




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J-A02039-18



      Judgment vacated. Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

      Judge Bowes joins this Opinion and files a Concurring Statement.

      Judge Olson joins the Opinion and joins the Concurring Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2018




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