jury box Photo: Jason Doiy

University of Pittsburgh Medical Center’s victory in a medical malpractice lawsuit was short-lived as an appeals court ordered a new trial after finding that the jury selection process was tainted.

A three-judge Superior Court panel consisting of Judges Mary Jane Bowes, Judith Olson and Deborah A. Kunselman granted Mendy Trigg’s appeal of an Allegheny County jury’s verdict in favor of UPMC in which she argued that the selected jurors were biased.

The issue centered on the absence of the Allegheny County judge during voir dire, and a lack of any firsthand observation of the jurors’ demeanor during that process.

Trigg argued that the lack of judicial supervision allowed biased jurors to slip through the cracks, while the hospital maintained that the issue was a “red herring.”

“The knowledge gleaned from in-person observations is ‘impossible to place in the record, [but] must be considered,’” Kunselman wrote in the court’s opinion. “An absentee judge misses the crucial instant when would-be jurors reveal their inmost selves by both words and actions.”

UPMC pointed to a rule of civil procedure stating that clerks can act as stand-ins for judges during the jury selection process. The Superior Court disagreed with the application of that rule in Trigg’s case.

“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,” Kunselman said.

Kunselman illustrated the point by referencing a response from one juror who had a bias toward health care professionals because her family members are doctors, and said that she would probably find in favor of a doctor or hospital if the case was a “close call.”

Juror 29 continued, “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.”

Kunselman noted, “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.”

In a concurring statement from Bowes, the judge said she agreed with the majority ruling and further urged Allegheny County to re-evaluate its jury selection procedures.

“The judge makes the decision whether to disqualify a potential juror based upon a review of transcribed answers to voir dire questions, or in some cases, after a subsequent interview with the challenged individual,” Bowes said. “For the reasons cited by the majority, I agree that such a procedure warrants a departure from the deference usually afforded to the rulings of judges who contemporaneously observe or participate in the voir dire process.”

Douglas Price of Harry S. Cohen & Associates represents Trigg and Jason Zivkovic of Dickey, McCamey & Chilcote represents the hospital.

In an email, Zivkovic said, “We respectfully vehemently disagree with the Superior Court’s decision because their eagerness to change the voir dire process by this route is misguided and they did not consider all of the testimony of Juror 29 demonstrating the juror’s ability to be fair and impartial. There were no contentions that any of the jurors who actually heard the case were unfair and biased; therefore, plaintiff did not suffer any prejudice. We plan to ask the en banc Superior Court to review it and then file a petition for allocatur to the Supreme Court, if necessary.”

Price did not respond to a request for comment.