A hospital being sued by a black couple for medical malpractice over a birth injury had a legitimate, nondiscriminatory reason for striking black jurors from the jury panel, the Pennsylvania Superior Court has ruled.

A three-judge panel consisting of Superior Court Judges Mary Jane Bowes, Anne E. Lazarus and William H. Platt upheld a Delaware County judge’s decision to dismiss the case against Delaware County Memorial Hospital.

Among other issues on appeal, plaintiffs Dawine Paih and Stephen L. Togba claimed lawyers for the hospital targeted the only two black jurors on the venire for elimination from the jury pool based on discriminatory motives. They specifically alleged the defendants’ reasons for striking one of them, Juror No. 4, were “blatantly pretextual” and that the hospital offered no persuasive or facially neutral explanations for the challenges, according to Lazarus’ opinion.

However, the court disagreed and accepted the hospital’s argument that it struck the juror because he had a sister whose child also had a difficult birth in Delaware County Memorial involving meconium staining—an issue that would be brought up at trial—and that the juror would be “unfairly sympathetic” to the plaintiffs. Meconuium is a dark-colored fecal substance that accumulates in an infant’s bowels and is discharged shortly after birth.

“Here, appellees offered a legitimate, race-neutral explanation for striking Juror No. 4 from the panel,” Lazarus said. “Meconium complicated Juror No. 4’s niece’s delivery in the very department of the same hospital where appellants’ child was delivered. Most notably, however, was the fact that meconium was an issue in the instant case.”

She added, “There was no discriminatory intent inherent in appellees’ reasonable explanation.”

The plaintiffs challenged the Delaware County judge’s dismissal of the case using the U.S. Supreme Court’s 1991 ruling in Batson v. Kentucky. The decision in the criminal case was also extended to civil litigation and states that potential jurors cannot be challenged solely on account of their race.

Batson established a three-pronged test in order for a challenge to a jury strike to be successful: “First, the [movant] must make a prima facie showing that the [opposing party] has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the [opposing party] to articulate a race-neutral explanation for his peremptory challenges. Finally, the trial court must determine whether the [movant] has carried his burden of proving purposeful discrimination,” according to an excerpt in Lazarus’ opinion.

But Lazarus, noting the “great deference” trial judges are given on appeal from findings of fact regarding discriminatory intent, said, “We cannot deem the trial court’s decision to deny appellants’ Batson challenge as clearly erroneous; there was no discriminatory intent inherent in appellees’ reasonable explanation.”

The plaintiffs’ attorney, Andrew Spirt of Golomb & Honik in Philadelphia, did not return a call seeking comment. John Hare of Marshall Dennehey Warner, Coleman & Goggin represents the hospital and also did not return a call seeking comment.

(Copies of the 15-page opinion in Paih v. Noronha, PICS No. 17-1645, are available at http://at.law.com/PICS.)