The state Supreme Court has granted a new trial in a case in which a principal juror was inexplicably replaced with an alternate juror by a court officer prior to deliberations in a medical malpractice trial with no notice to the attorneys or the judge.
The six-justice court in Bruckshaw v. Frankford Hospital voted 5-1 in the result, granting a new trial to the plaintiff in a medical malpractice case.
Justice Max Baer, writing for the majority, said that while Pennsylvania courts have typically required a showing of prejudice before granting a new trial, the “mischief of uncertainty” distinguishes Bruckshaw from other cases.
“We recognize that granting a new trial is an extreme remedy, but one that is necessary under the circumstances to ensure the integrity of jury trials in Pennsylvania,” Baer said. “Because of the obscure nature of the removal and substitution, without notice to the parties and off the record, we cannot discern the cause of this jury irregularity. It is this uncertainty that causes us to impose the remedy of a new trial, to protect the sanctity of the jury from innocent mistakes as well as iniquitous intentions.”
Justices Thomas G. Saylor, Debra Todd and Seamus P. McCaffery joined Baer’s opinion.
Chief Justice Ronald D. Castille filed a concurring opinion, noting that, since the trial judge was unaware of the juror substitution, it was only an “error” of the court insofar as a court officer’s conduct is attributable to the court as a whole.
Justice J. Michael Eakin filed a concurring and dissenting opinion, arguing that while he agreed with the majority that a juror may only be removed by a trial court, on the record and for cause, with notice to all the parties, the uncertainty in Bruckshaw was caused by the absence of a record, which in turn was the result of plaintiffs counsel’s failure to request a hearing in order to determine why the juror was removed.
“Under the majority’s pronouncement, the absence of a record results in victory for the very party who bears the burden of creating one,” Eakin said. “If the absence of a record absolves the losing litigant of the burden of proving prejudice, the losing party will never want to make a record.”
In Bruckshaw, according to court documents, a 12-member jury handed down a 10-2 verdict in Philadelphia Court of Common Pleas Judge Joseph I. Papalini’s courtroom in February 2008, clearing defendants Dr. Randy K. Metcalf and Dr. Brian P. Priest, as well as the Frankford Hospital, Torresdale Division in Philadelphia, of allegations that they were responsible for the death of 47-year-old plaintiff Patricia Bruckshaw, who died following heart surgery.
Upon delivery of the verdict, plaintiffs counsel noticed that the verdict sheet was signed by Juror 20 as jury foreperson and realized that Juror 20 had been substituted for Juror 12, Baer said in his opinion.
Plaintiffs counsel moved for post-trial relief, but Papalini, while acknowledging the court had not been aware of the substitution, refused to grant a mistrial because Juror 20 was an alternate juror who had been accepted by both parties during juror selection, according to Baer.
On appeal, Baer said, the Superior Court found that, in order to grant a new trial, the plaintiff would have to prove that the outcome of the trial would have been different had the jury substitution not occurred.
Ultimately, the Superior Court found that the plaintiff failed to meet that burden of proof, according to Baer.
But Baer disagreed.
“It is our duty to ensure a fair trial and protect the integrity of the jury,” Baer said. “We cannot do so if we impose the impossible burden of requiring a showing of prejudice. Indeed, the inability to assess prejudice in this case causes the error to defy analysis by prejudice standards; to hold otherwise would immunize such jury irregularities from review. In such a situation, to protect the integrity of a jury verdict, a new trial must be granted.”
Baer said Bruckshaw is also distinguishable from other cases involving unauthorized contact with or influence of a jury, in which the justices have typically shown deference to the trial court to assess whether a party was prejudiced.
“Although appellate courts will generally defer to the trial court’s exercise of discretion in determining whether there was prejudice, where there is no exercise of discretion, there is nothing to which to defer,” Baer said.
Likewise, while Pennsylvania courts have held that an aggrieved party must show prejudice when a trial court erroneously strikes a juror, Baer said Bruckshaw did not involve the removal of a juror in open court.
“It is precisely the unknown, opaque nature of the facts before us that calls into question the integrity of the jury, far more than an erroneous decision made on the record in open court,” Baer said.
Counsel for Bruckshaw, George J. Badey III of Badey, Sloan & DiGenova in Philadelphia, said the “decision has important implications for Pennsylvania’s justice system, since jury protections that have been in effect for years in criminal cases have now been explicitly adopted and will apply in all civil cases as well.”
But Frankford’s attorney, Medford J. Brown III of Goldfein & Joseph in Philadelphia, said he didn’t believe a new trial was warranted.
“The reason we have to try this case again is because there’s a mystery and the reason there’s a mystery is because the plaintiff did not request a hearing,” Brown said.
Counsel for Metcalf and Priest, Dean F. Murtagh of German, Gallagher & Murtagh in Philadelphia, said the decision was “extraordinarily disappointing” given the time and money that went into litigating the case the first time.
Murtagh said he felt the case should at least have been remanded for a hearing in order to determine how and why the jurors were switched.
(Copies of the 30-page opinion in Bruckshaw v. Frankford Hospital, PICS No. 12-2371, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)