A prospective juror in a medical malpractice case may be removed for cause because his or her spouse is a patient of the defendant doctor, five of eight members of a state Superior Court en banc panel agreed.
In Cordes v. Associates of Internal Medicine, the Superior Court reversed the Beaver County Court of Common Pleas, which upheld a defense verdict. Most of the appeals court panel members said the plaintiff’s case had been prejudiced because three jurors in the case had ties to the defendants.
However, the ruling came from a splintered panel, with six of eight judges favoring a new trial for the plaintiff but producing no overall majority opinion. After agreeing on the impact of one juror’s spouse’s patient-physician relationship with the defendant, the six agreed that two additional jurors should have been excluded from serving for reasons of partiality without coming to a consensus on the reasoning.
Three of the judges joined in an opinion by Judge Christine L. Donohue favoring reversal. Two others joined in an opinion by Judge David N. Wecht favoring reversal. And Judge Mary Jane Bowes concurred in the result reached by both Donohue and Wecht. Two judges dissented.
Plaintiff Susanne Cordes claimed defendant Dr. Ann Marie Ray’s decision to discontinue her husband’s use of the blood thinner Plavix and a misdiagnosis contributed to his stroke and subsequent death.
According to Wecht, Cordes argued on appeal that her case was prejudiced by the inclusion of three jurors with relationships to the defendants.
“Precedent makes clear that even a vicarious relationship between a juror and a party, case counsel, victim or witness may create a risk of partiality great enough to warrant disqualification,” Wecht said, “without regard to the juror’s assurances regarding his ability to review the case without bias.”
According to Wecht, juror Sean Snowden told the court he learned after voir dire that his wife was a patient of Ray’s. A second juror, Christine Kaelin, said during voir dire that her parents were patients of Ray’s. A third juror, Richard Majors, revealed during voir dire that he was an employee of Heritage Valley Health System (not involved in the case), an entity of defendant Tri-State Medical Group, which leases office space to Ray.
Wecht’s opinion was joined by Judge John T. Bender. Donohue was joined by President Judge Susan Peikes Gantman and Judge Paula Francisco Ott. Judge Judith Ference Olson wrote a dissent, which Judge Cheryl Lynn Allen joined. State Supreme Court Justice Correale F. Stevens, formerly a Superior Court president judge, was on the panel but did not participate in the decision.
Wecht said the trial court should not have taken the jurors’ testimony regarding their impartiality at face value. He added that the “clinical relationships” Kaelin and Snowden’s family members had with Ray were sufficient to warrant a finding of per se prejudice.
“Thus, we conclude that the trial court failed to pay due regard to the precept that the mere appearance of partiality on the part of a juror may suffice to undermine confidence in the outcome of the trial,” Wecht said.
The trial court also failed to take into account the implications of Majors’ testimony, in which he said that an award for the plaintiff could financially impact his employers in a negative way, Wecht said.
“Consequently, we hold that Mr. Majors’ employment relationship with Heritage Valley, which had an undisputed financial interest in the outcome of the litigation recognized by Mr. Majors, created a sufficient risk of partiality,” Wecht said.
In her opinion, Donohue explained that she joined with Wecht’s conclusion that the jurors should have been replaced but disagreed with his reasoning behind the decision, particularly with regard to Kaelin and Majors.
“While I agree with Judge Wecht that juror Kaelin should have been disqualified,” Donohue said, “I disagree with Judge Wecht that the simple fact that the juror’s parents were patients of the defendant doctor in this medical malpractice case required her exclusion from the jury.”
This is because, Donohue reasoned, not all adult children have close relationships with their parents or have an interest in their medical treatment. She added, however, that Kaelin should have been removed because her testimony did reveal a “prejudicial taint” in that she had involvement in her parents’ medical affairs.
Additionally, Donohue said Majors’ belief that his employer would be hurt by a plaintiffs verdict established an “impermissible financial link” between Majors and the case.
She said, “I do not believe that juror Majors’ employer’s ownership interest in Tri-State supports a challenge for cause and, to the extent that Judge Wecht holds that it does, I disagree.”
Ultimately, Donohue said she agreed that Cordes was entitled to a new trial.
Olson, in her dissent, said “the law in Pennsylvania holds that indirect or mediated relationships between prospective jurors and case participants are insufficient to raise a presumption of prejudice.”
Olson said the trial court’s decision to accept the jurors’ testimony that they were impartial was free of error because the jurors’ ties with the defendants were indirect.
“Here, none of the challenged jurors had any relationship whatsoever with a party, case counsel, a victim or a witness in the instant litigation,” Olson said. “In each case, the jurors’ relationship to a party arose exclusively from their relationship to a third party with no role in the litigation.”
Because of the indirect nature of the relationships, Olson said, “I discern no basis upon which to conclude that the trial court committed palpable error in considering the demeanor and responses of the prospective jurors during the course of voir dire.”
All defendants in the case were represented by Weber Gallagher Simpson Stapleton Fires & Newby in Pittsburgh. Weber Gallagher attorney Paula Ann Koczan did not return a call seeking comment.
Cordes’ attorney, Michael Murphy of Pittsburgh-based Ogg, Murphy & Perkosky, said the opinions supporting reversal could be important in future professional negligence cases.
“I hope that these opinions go a long way in ensuring that, especially civil trials, are free from jurors who are compromised by either situational or familiar ties with the parties,” Murphy said.
(Copies of the 87-page opinion in Cordes v. Associates of Internal Medicine, PICS No. 14-0372, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •