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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


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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