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Cordes v. Associates of Internal Medicine

Superior Court of Pennsylvania

March 12, 2014


Appeal from the Judgment Entered October 20, 2011 In the Court of Common Pleas of Beaver County Civil Division at No.: 10763-2009.

Joseph D. Seletyn, Esq.




In this medical malpractice case, Susanne Cordes ("Appellant"), individually and as administratrix of the estate of Edward D. Cordes, Sr., appeals the October 20, 2011 judgment entered in favor of the above-captioned defendant-Appellees. Appellant claims that the trial court abused its discretion during the jury selection process by denying the challenges for cause she asserted against three venirepersons. Those individuals were empaneled as jurors, and the jury returned a defense verdict.

We vacate the judgment, and we remand.

I. Factual and Procedural History

On June 8, 2007, Appellee Ann Marie Ray, M.D., Mr. Cordes' primary care physician, diagnosed him with vertigo. Dr. Ray concluded that Mr. Cordes had not suffered a transient ischemic attack. Dr. Ray directed Mr. Cordes to discontinue his use of Plavix, a blood thinner. On August 17, 2007, Mr. Cordes suffered a massive stroke. He died on August 19, 2007. On May 1, 2009, Appellant filed a malpractice complaint. Appellant alleged that Dr. Ray's misdiagnosis and discontinuation of Mr. Cordes' use of Plavix constituted a departure from the applicable standard of care.

Jury selection occurred on May 6, 2011. The venirepersons were asked four preliminary questions as a group, including inquiries seeking to determine whether any prospective jurors had any acquaintance with the parties and other specified individuals. See Notes of Testimony ("N.T."), 5/6/2011, at 16, 18. After these preliminary questions, counsel adjourned to the deliberation room, where they summoned prospective jurors for individual voir dire. See id. at 19. The court indicated that, after each venireperson was questioned by counsel, the parties would make any challenges for cause and exercise any desired peremptory challenges. Id. at 9-10, 13.

Appellant exercised all four of her peremptory challenges before then-prospective jurors Richard Majors, Christine Kaelin, and Sean Snowden, respectively, were called for individual questioning. See id. at 107. Appellant exhausted her challenges despite her prior knowledge, from the preliminary voir dire in open court, that Mr. Majors knew or had "social, business, or other contact or employment with any of the parties, " id. at 16, and that one of Ms. Kaelin's family members had had "social, business, or professional contact" with one or more of five individuals named as potential witnesses, one of whom was Dr. Ray. Id. at 18.

The trial court described the individual voir dire proceedings as follows:

During individual voir dire, [Mr. Majors] revealed that he was an employee of Heritage Valley Health Systems ["Heritage Valley"]; however, . . . he did not know Dr. Ray personally. Notes of Testimony ("N.T."), 5/6/2011, at 107. Mr. Majors indicated that he manages the leases for which Heritage Valley acts as a landlord and was aware that Dr. Ray's practice group leased office space from Tri-State Medical Group ["Tri-State"], which is an entity of [Heritage Valley]. See id. at 107-11. Mr. Majors' employment with Heritage Valley did not involve any medical care and/or treatment of patients. See id. at 110. Further, he stated that he would not consider whether a potential verdict in favor of [Appellant] would somehow adversely affect Heritage Valley's financial status. See id. at 111-12. Mr. Majors stated that his employment with Heritage Valley would not prevent him from being a fair and impartial juror. See id. at 107-19. [Appellant's] counsel moved to strike Mr. Majors for cause due to his employment with Heritage Valley. [Appellant] claim[ed] that Mr. Majors' close financial relationship with co-employee Dr. Ray compelled exclusion.
Notably, [Heritage Valley] was not a named defendant in this case. Moreover, [Heritage Valley] is a large health system corporation and one of the chief employers in Beaver County. Practically, the court appropriately denied the motion stating that Mr. Majors, on multiple occasions, said that he could render a verdict against Dr. Ray, irrespective of his employment with Heritage Valley. See id. at 117-19.
[Also] during individual voir dire, [Ms. Kaelin] revealed that Dr. Ray is her parents' physician. However, she indicated that she could be fair and impartial in a case involving Dr. Ray. See id. at 177-78. Upon further examination by [Appellant's] counsel, Ms. Kaelin stated that while she had taken her mother to a doctor's appointment, she had never met Dr. Ray and would not be more inclined to believe Dr. Ray because her parents have a good impression of [her]. See id. at 180-81. In fact, Ms. Kaelin indicated that she could disbelieve Dr. Ray and render a verdict against her if the evidence warranted such a result. See id. at 181. [Appellant's] counsel moved to strike [Ms. Kaelin] for cause due to her parents' relationship with Dr. Ray.
[Appellant] argue[d] that Ms. Kaelin had a close situational relationship with Dr. Ray. However, [Ms.] Kaelin clearly indicated that she had never met Dr. Ray. While her parents may have a close situational relationship with Dr. Ray, there was nothing to suggest to this Court that Ms. Kaelin, herself, had any type of relationship with Dr. Ray. Accordingly, the Court properly denied [Appellant's] motion to strike Ms. Kaelin for cause as Ms. Kaelin clearly demonstrated that she could render a fair and impartial verdict notwithstanding her parent's relationship with Dr. Ray. Id. at 186-87.
A jury panel was selected and [Mr. Snowden] was selected and sworn in as [a] juror. After the jury panel was selected and trial had commenced, counsel for Dr. Ray[] advised the Court that after [she] reviewed [her] patient list she recognized the name Snowden as one of her patients. The Court, with counsel present, brought Mr. Snowden into chambers. Mr. Snowden explained that the night before he and his wife were having a conversation in which she expressed her intent to get Chantix in an attempt to cease smoking. Mr. Snowden then asked her who[m] she would get the Chantix from and she said Dr. Ray. According to Juror Snowden, this was the first time he learned that his wife treated with Dr. Ray. In addition, he indicated that he had never personally met Dr. Ray and that he was able to decide the case fairly and without bias or prejudice. See N.T. In-Chambers Proceeding, 5/11/2011, at 2-6.
Again, [Appellant] claim[ed] that Juror Snowden had a close situational relationship with Dr. Ray. However, as the Court indicated on the record, Mr. Snowden was not, himself, a patient of Dr. Ray, never had any contact with Dr. Ray and had just learned that Dr. Ray was his wife's doctor. Id. at 8. Mr. Snowden had no personal relationship with Dr. Ray at all. In response to [Appellant's] counsel's extensive questioning, Mr. Snowden clearly stated that he would not feel uncomfortable entering a verdict against Dr. Ray, given the fact that she was his wife's doctor. Id. at 5. Mr. Snowden did not demonstrate any close or real relationship with Dr. Ray that would warrant his dismissal. Accordingly, the Court properly refused to dismiss this juror.

Trial Court Opinion ("T.C.O."), 9/20/2011, at 6-9 (citations modified; emphasis omitted).

On May 13, 2011, the jury returned a verdict in favor of Appellees. Appellant filed timely post-trial motions, which the trial court denied on September 20, 2011. Judgment was entered on October 20, 2011, and this timely appeal followed.[1]

Appellant raises two questions for our review:

1. Whether the trial court erred by failing to presume prejudice and strike two jurors who had close situational relationships with a litigant in that their immediate family members were current patients of the Defendant, Dr. Ray?
2. Whether the trial court erred by failing to presume prejudice and strike a juror who had a close financial relationship with a litigant in that he was employed by the same corporation as the Defendant, Dr. Ray?

Brief for Appellant at 4 (issues reordered).

II. Legal Standard

Our standard of review of a court's decision not to strike a potential juror for cause is well-settled:

The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor . . . . A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice[, ] or demonstrates a likelihood of prejudice by his or her conduct and answers to questions. Our standard of review of a denial of a challenge for cause differs, depending upon which of these two situations is presented. In the first situation, in which a juror has a close relationship with a participant in the case, the determination is practically one of law and as such is subject to ordinary review. In the second situation, when a juror demonstrates a likelihood of prejudice by conduct or answers to questions, much depends upon the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in the case of palpable error. When presented with a situation in which a juror has a close relationship with participants in the litigation, we presume prejudice for the purpose of [en]suring fairness.

McHugh v. P&G Paper Prods. Co., 776 A.2d 266, 270 (Pa.Super. 2001) (footnote, citations, internal quotation marks, and original modifications omitted).

This Court previously has described this inquiry in general terms as follows:

[T]here are two types of situations in which challenges for cause should be granted: (1) when 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; and (2) when the potential juror's likelihood of prejudice is exhibited by his conduct and answers to questions at voir dire. In the former situation, the determination is practically one of law and as such is subject to ordinary review. In the latter situation, much depends upon the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in case of palpable error.

Commonwealth v. Colon, 299 A.2d 326, 327-28 (Pa.Super. 1972). Importantly, this Court has held as follows:

The two situations . . . are not mutually exclusive, and it is to be expected that some cases will present both situations. Thus a prospective juror may indicate by his answers on voir dire that he will not be impartial – the [second] situation – and the reasons for his attitude may be that he has a particular relationship with someone involved in the case – the [first] situation.

Commonwealth v. Johnson, 445 A.2d 509, 512 (Pa.Super. 1982).[2]Inasmuch as the first category of challenge presents a question of law, we review the trial court's ruling de novo, and the scope of our review is plenary. Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa.Super. 2005).

Our Supreme Court recently has reminded us that "[o]ne of the most essential elements of a successful jury trial is an impartial jury." Bruckshaw v. Frankford Hosp., 58 A.3d 102, 119 (Pa. 2012) (citing Colosimo v. Penna. Elec. Co., 518 A.2d 1206, 1209 (Pa. 1986)). To that end, "[t]hrough the voir dire process individuals with bias or a close relationship to the parties, lawyers or matters involved are examined and excluded." Id. at 110 (emphasis added). Thus, for more than a century, our Supreme Court has held that it is incumbent upon a court faced with a for-cause challenge to consider not just the fact of partiality, but also the prospect or appearance of partiality or bias. See Commonwealth v. Stewart, 295 A.2d 303, 306 (Pa. 1972) (quoting In re Murchison, 349 U.S. 133, 136 (1955)) ("[O]ur system of law has always endeavored to prevent even the probability of unfairness." (emphasis added)); Seeherman v. Wilkes-Barre Co., 99 A. 174, 176 (Pa. 1916) ("It [is] certainly desirable that the cause should be tried by persons free even from the suspicion of partiality."); Hufnagle v. Delaware & H. Co., 76 A. 205, 206 (Pa. 1910) ("[N]o person should be permitted to serve on a jury who stands in any relation to a party to the cause that would carry with it prima facie evident marks of suspicion of favor . . . ." (internal quotation marks omitted)); Schwarzbach v. Dunn, 381 A.2d 1295, 1297-98 (Pa.Super. 1977) (directing a mistrial in order to "tip the balance in favor of [e]nsuring a fair trial" because "the potential for prejudice was great, " even though the critical premise was "never factually established"); see also Commonwealth v. Stitzel, 454 A.2d 1072, 1075 n.8 (Pa.Super. 1982) (citing Schwarzbach to reinforce the importance of erring on the side of fairness even when faced with "only the potential for prejudice"). The importance of addressing the prospect, as well as the fact, of bias is necessarily embodied in the two-pronged Colon test. That a category of exclusion is to be effectuated per se would make little sense if it were not animated by courts' historic concern for the prospect of jury bias, since application of that test forecloses any inquiry into actual bias.

Thus, at issue in this appeal, given the undisputed absence of admissions of partiality, is the prospect or appearance of partiality or bias with respect to three jurors: two whose close family members were patients of the defendant-Appellee physician, Dr. Ray, at the time of jury selection; and one whose employer, Heritage Valley, owned Tri-State, a named defendant in this action and defendant-Appellee Dr. Ray's employer. During voir dire, the latter juror attested to his belief that Heritage Valley had a financial interest in the outcome of the litigation through its subsidiary, Tri-State, and further testified that he and Dr. Ray shared a common employer.

As to the three jurors whom Appellant maintains should have been excluded for cause, Appellant focuses exclusively upon the first test articulated in McHugh and Colon, which addresses potential conflicts arising from a close familial, financial, or situational relationship with the parties. Appellant does not contend that the jurors' testimony during voir dire constituted a viable basis for relief. This is a natural consequence of the fact that, during voir dire, each challenged juror attested under oath to his or her ability to be impartial.[3] Were the fitness of the jurors in question dependent solely upon their indications under oath regarding their ability to be impartial, our deference to the trial court's findings with regard to these answers would compel affirmance. See McHugh, 776 A.2d at 270. However, despite the trial court's focus on the jurors' own testimony, the challenge presented here turns instead upon the situational relationships of the challenged jurors to the parties and interested non-parties.

In McHugh, an insured worker brought a premises liability claim against Proctor & Gamble Paper Products Company ("Proctor & Gamble"). At trial, Proctor & Gamble was represented in person by its employee, Patrick Fellin. Although Mr. Fellin was not a party to the litigation, he was to be seated at counsel's table during trial. Proctor & Gamble characterized Fellin as nothing more than "window dressing, " and asserted that "Fellin would not testify, . . . had no involvement in the incident with McHugh, and . . . he simply would sit at counsel table . . . to represent Proctor & Gamble." Id. at 272.

During voir dire, five members of the initial twenty-four member jury pool indicated that they were acquainted with Mr. Fellin. One individual indicated that he worked at the same Proctor & Gamble plant and in the same department as Mr. Fellin. Two more prospective jurors knew Mr. Fellin as a fellow employee at the same plant. A fourth prospective juror formerly had worked in the same department as Mr. Fellin, but had since retired. Finally, a fifth venireman indicated that Mr. Fellin was his son-in-law. 776 A.2d at 268.

McHugh's counsel asked the court to strike the first four of these prospective jurors based upon their employment relationships with Proctor & Gamble and Mr. Fellin, and the fifth prospective juror due to his familial relationship with Mr. Fellin. In open court, the trial court inquired of each challenged venireman whether he could "render a fair and impartial verdict based only on the evidence." When each prospective juror answered affirmatively, the trial court denied McHugh's motion to strike as to all five.

Thereafter, McHugh's counsel questioned each of the five veniremen individually. Mr. Fellin's father-in-law replied to counsel's inquiry regarding whether he would be "personally affected or [his] son-in-law [would] be affected by [him] . . . sitting on this jury and rendering" a verdict against Proctor & Gamble, as follows: "I don't know if I'd be[;] he would." Id.

McHugh filed a pre-trial motion for a mistrial on the basis that the trial court erred in denying his for-cause challenges to Mr. Fellin's father-in-law and the Proctor & Gamble employees. The trial court denied McHugh's motion, the case went to trial, and the jury "rather quickly" rendered a verdict against McHugh. Id.

With regard to those who had employment relationships with Proctor & Gamble, this Court held on appeal that "the employer/employee relationship evokes a presumption of prejudice so significant as to warrant disqualification of employees of a party." Id. at 270. We explained: "Over ninety years ago, our Supreme Court recognized that, where a litigant is in a position where he might exercise control over a juror, such as the relation of master and servant, that juror should not be permitted to serve on the jury." I d. (citing Hufnagle, supra). We further observed that "[d]ecisions to automatically exclude a prospective juror from a jury are based upon 'real' or 'close' relationships between the juror and the case due to financial, situational or familial ties with the parties, counsel, victims or witnesses." Id. at 271 (citing Commonwealth v. Rough, 418 A.2d 605, 609 (Pa.Super. 1980)). After reviewing the largely consistent law of other states, we held that the employer-employee relationship comprised such a relationship due to "the presumption of loyalty of employees to their employer" and the manifest potential "that jurors who are employees of a party are unlikely to hear the case with a clean slate and an open mind." Id. (quoting Kusek v. Burlington N. R.R. Co., 552 N.W.2d 778, 782 (Neb. Ct. App. 1996)).

In light of these principles, we determined that the Proctor & Gamble employees should have been stricken for cause:

Clearly, Proctor & Gamble maintains an overwhelming presence in the lives of its employees residing in that area, to the extent that the livelihoods of the employee and his or her family become wholly intertwined with Proctor & Gamble. We cannot reasonably expect a person whose livelihood derives from a party to render an impartial verdict in a case involving that party, regardless of that person's belief that he or she can do so.

Id. at 272. Yet, in the case now before us, the trial court cited precisely the same consideration as a basis not to excuse Mr. Majors from the jury. T.C.O. at 7 ("[Heritage Valley] is a large health system corporation and one of the chief employers in Beaver County. Practically, the court cannot dismiss for cause every employee of Heritage Valley.").

In Schwarzbach, we reversed a trial court's refusal to excuse a juror who had an indirect relationship to case counsel. Specifically, the wife of the juror in question had some history of employment with the law firm representing the plaintiff. The plaintiff's counsel opposed exclusion, contending that the juror's wife had worked in counsel's office only on a part-time basis, and had worked only for a member of the firm unconnected to the case at bar. 381 A.2d at 1297. Moreover, plaintiff's counsel observed that, in rural Elk County, stenographers serve multiple law firms. Id. Although "it was never factually established just what the secretary's relationship was with the law office of [plaintiff's] attorney, " we emphasized that "the potential for prejudice was great in that it is quite possible that a secretary in a law office could influence her husband in deciding a matter in which her employer is counsel." Id. at 1298.

We found that the potential for prejudice noted above was sufficient to declare a mistrial and to remand. Of critical importance to today's case, we couched our ruling not in the certainty or proximity of the problematic relationship but in the uncertainty surrounding the indirect relationship between the juror and counsel:

The problem here is that it was never factually established just what the secretary's relationship was with the law office of [the plaintiff's] attorney. It is implied by one of the parties that she was an occasional employee of many law offices in the area. However, this was never determined as factual. In fact, her relationship with the law offices was never made clear anywhere. If she was a mere occasional employee or if a great deal of time had passed since she was so employed the potentialities of prejudice of her husband sitting on the jury would not be great enough to warrant a new trial. However, we do not have the answers to these questions and . . . we are inclined to tip the balance in favor of [e]nsuring a fair trial here.


From the particularities of these decisions several general principles emerge: First, indirect relationships of a juror to a party with which the juror has had no direct contact, including connections through spouses with a potential (also indirect) employment-related interest in the outcome of the trial, may furnish a basis for per se exclusion; second, that trial courts must err on the side of caution when confronted with such an indirect relationship; and third, that no matter the per se nature of the applicable test, the trial court retains discretion to identify and assess the quality of the specific relationship at hand, as evinced by our acknowledgment in Schwarzbach that variations on the relationship in question, including the frequency or remoteness in time of the employment relationship between the juror's wife and counsel, might dictate contrary results.[5]

Our analyses in McHugh and Schwarzbach are not entirely dispositive of our determination as to whether the trial court should have stricken the jurors at issue in the circumstances presented in the instant case. However, the exclusion of Mr. Fellin's father-in-law in McHugh provides an instructive analogy to the instant case. That prospective juror did not have a direct relationship to the parties, counsel, victims, or witnesses in that case, because his only connection to a party was mediated through Mr. Fellin, who fit none of these descriptions.[6] As well, in Schwarzbach, a relationship between a juror and counsel mediated through a spouse was held to require exclusion per se, despite the insufficiency of the record to confirm the details of that relationship. Thus, to reconcile McHugh, Schwarzbach, and Colon, as we must to the extent possible, we are bound to conclude that a close situational relationship with a party may be found even when the relationship in question is indirect. We must determine whether the trial court – in assessing the relationships in the fashion recommended by Schwarzbach and noted without criticism in Johnson – erred in determining that the particular relationships were not so close or real as to require exclusion.

We find additional guidance in other cases decided by Pennsylvania courts, as well as decisions by courts of other jurisdictions. For example, our Supreme Court and other courts have held that a stockholder in a corporation that has an interest in the matter may not be empaneled. See Seeherman, 99 A. at 175; see also Salt River Valley Water Users' Ass'n v. Berry, 250 P. 356, 357 (Ariz. 1926); McLaughlin v. Louisville Elec. Light Co., 37 S.W. 851, 855 (Ky. 1896); Ozark Border Elec. Coop. v. Stacy, 348 S.W.2d 586, 589 (Mo.Ct.App. 1961) (collecting cases and noting that "[t]he general rule that a stockholder in a corporation is incompetent to sit as a juror in an action to which the corporation is a party or in which it has a direct pecuniary interest is stated without qualification or exception"). Similarly, courts have found a dispositive risk of partiality in a prospective juror who is a shareholder in an insurance company bound to indemnify the defendant for any judgment entered against him. Citizens' Light, Heat & Power Co. v. Lee, 62 So. 199, 205 (Ala. 1913); Thompson v. Sawnee Elec. Membership Corp., 278 S.E.2d 143, 144 (Ga.Ct.App. 1981). And, in Wallace v. Alabama Power Co., 497 So.2d 450, 453-54 (Ala. 1986), a shareholder in a corporation with an ownership stake in a party to the litigation was deemed excludable as a matter of course.[7]

When such potential conflicts arise, the trial court may not rely upon a juror's assurances that he can set aside his own interests and deliberate without bias. On appeal, our traditional deference to the trial court's credibility determinations becomes immaterial to determining whether a given juror should have been disqualified. Thus, in M & A Electric Power Cooperative v. Georger, the Missouri Supreme Court explained:

[T]he fact that the members, when interrogated, denied that they would be prejudiced by reason of such interest is not conclusive. . . . [Venirepersons] are not to . . . determine their own qualifications, and we remain mindful of the eternal verity that, whatever else may change in this changing world, the impelling self-interest, motivating emotions and besetting frailties of members of the human family abide unchanged.

480 S.W.2d 868, 874 (Mo. 1972) (internal citations and quotation marks omitted). Our own Supreme Court's ruling in Seeherman is in accord. See 99 A. at 176.

In sum, while the weight of authority makes clear that we must defer to the trial court's discretion in assessing whether a prospective juror's assertions of impartiality are credible, this deference applies only when the issue hinges upon a question of partiality arising from the would-be juror's comments in voir dire. Conversely, when faced with a sufficiently close situational relationship between the venireperson and a party to the litigation, or to an entity with an interest in the outcome of the litigation, prejudice must be assumed, the venireperson's protestations of impartiality notwithstanding.

With these principles in mind, we turn now to the matter at hand, examining, in turn, the relationships of the prospective ...

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