Jury Selection • Challenge for Cause • Appearance of Bias or Impartiality • Per Se Prejudice
Cordes v. Ass’n of Internal Med., PICS Case No. 14-0372 (Pa. Super. March 12, 2014) Wecht, J. (87 pages).
Trial court erred in refusing to dismiss for cause jurors with a close relationship to defendant doctor, where the parents of one and spouse of another used doctor as primary treating physician and third was employed by same company as doctor, which had a financial interest in the outcome of the case (prejudice presumed); despite jurors’ assurance of impartiality, their presence created appearance of partiality or bias. Vacated and remanded.
Appellant’s primary care provider misdiagnosed him with vertigo and directed him to discontinue use of Plavix, a blood thinner. Two months later, appellant suffered a massive stroke and died. Appellant, through his estate, filed a malpractice action, alleging that doctor’s misdiagnosis and discontinuation of appellant’s use of Plavix constituted a departure from the applicable standard of care.
During jury selection, and after appellant exercised all four peremptory challenges, three prospective jurors were called, each of whom admitted to having social, business or other contact with doctor. Specifically, the parents of one such juror, and the spouse of another were patients of doctor. The third prospective juror was employed by the same company as doctor which, as an unnamed defendant, had a financial stake in the outcome of the case. Nevertheless, each prospective juror stated that s/he could be impartial if asked to decide the case. Appellant moved to strike these three prospective jurors for cause. The court refused to dismiss the jurors.
The jury returned a verdict in favor of doctor. Appellant’s post-trial motions were denied. On appeal, appellant argued that the trial court erred by failing to presume prejudice and strike two jurors based on their close situational relationships with doctor and one juror, based on his close financial relationship with doctor. The superior court vacated and remanded for new trial.
A challenge for cause should be granted when: (1) the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims, or witnesses, that the court will presume the likelihood of prejudice (a question of law, subject to ordinary review); and (2) the potential juror’s likelihood of prejudice is exhibited by his conduct and answers to questions at voir dire (discretionary, palpable error standard). A court faced with a for-cause challenge must consider not just the fact of partiality, but the prospect or appearance of partiality or bias.
Indirect relationships of a juror to a party with which the juror has had no direct contact may furnish a basis for per se exclusion. Here, the clinical relationships of one juror’s parents and another’s wife with doctor were sufficiently close and real to warrant a finding of per se prejudice. The record indicated that parents and spouse had treated and would continue to treat with doctor as their primary physician. This implicit—and in the case of one juror, explicit—endorsement of doctor’s competence by close family members created the prospect or appearance that these jurors’ ability to judge doctor’s credibility and liability impartially would be compromised. Accordingly, the trial court erred when it declined to disqualify these two individuals as jurors.
The third juror’s employment relationship with an unnamed defendant having an undisputed financial interest in the outcome of the litigation, also created a sufficient risk of partiality to establish prejudice per se arising from his jury service. This employment relationship warranted disqualification.
Donohue, J., concurred that the trial court erred by failing to discharge jurors for cause, but disagreed that all parent-child bonds were strong enough to warrant prejudice per se. Furthermore, he found the purported employment relationship between juror and doctor, standing alone, too attenuated to warrant the grant of a challenge for cause.
Olson, J., dissented. Indirect or mediated relationships between prospective jurors and case participants are insufficient to raise a presumption of prejudice. Moreover, the mere potential for bias or impartiality does not justify per se exclusion or de novo appellate review. In the absence of a disqualifying direct relationship with a case participant, a juror’s exclusion from service should remain within the discretionary authority of the trial court, which should be reviewed for an abuse of that discretion.