MEGAN L. SHINAL AND ROBERT J. SHINAL, HER HUSBAND, Appellants
STEVEN A. TOMS, M.D., Appellee
ARGUED: November 2, 2016
from the Order of the Superior Court at No. 1714 MDA 2014
dated August 25, 2015, reconsideration denied October 28,
2015, Affirming the Judgment of the Montour County Court of
Common Pleas, Civil Division, dated September 29, 2014 at No.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
medical malpractice action premised upon lack of informed
consent, we address whether the trial court erred in refusing
to strike prospective jurors for cause based upon their
relationships to the case through their employer or their
immediate family member's employer. We conclude that the
trial court did not err in this regard. However, we conclude
further that the trial court committed an error of law when
it instructed the jury to consider information provided by
the defendant surgeon's qualified staff in deciding the
merits of the informed consent claim. Because a
physician's duty to provide information to a patient
sufficient to obtain her informed consent is non- delegable,
we reverse the Superior Court's order affirming the
judgment entered in favor of the defendant, and we remand for
a new trial.
Health System, situated primarily in Montour County, is a
large, integrated health system comprised of, inter
alia, hospitals, physician groups, medical clinics,
surgical centers, and a health insurance provider. Geisinger
Health System's flagship hospital is Geisinger Medical
Center, located in Danville, Montour County. Geisinger
Clinic, also part of Geisinger Health System, is the business
entity employing physicians within Geisinger Health System.
Geisinger Health System and its related business entities
employ about 12, 000 people, making it the largest employer
in Montour County. Reproduced Record (R.R.) 208a. Steven A.
Toms, M.D., is the Director of the Department of Neurosurgery
at Geisinger Medical Center, and is employed by Geisinger
Clinic as a neurosurgeon.
November 26, 2007, Megan L. Shinal and Dr. Toms met for a
twenty-minute initial consultation to discuss removing a
recurrent non-malignant tumor from the pituitary region of
Mrs. Shinal's brain. Years earlier, a surgeon operated to
extract the tumor by accessing it through the nose, but was
unable to remove all of it. The residual portion of the tumor
remained and increased in size until it extended into vital
structures of the brain, jeopardizing Mrs. Shinal's
eyesight and her carotid artery, causing headaches, and
threatening to impact Mrs. Shinal's pituitary and hormone
function. If left untreated, the tumor would eventually
to Dr. Toms' subsequent trial testimony, the November 26,
2007 meeting entailed a discussion of Mrs. Shinal's goals
and expectations in life and the risks of different
approaches to surgery, including possible damage to the
nearby carotid artery and the optic nerve. In Dr. Toms'
recollection, Mrs. Shinal stated that she wanted to "be
there" for her child, who was then nine years old. R.R.
503a. Dr. Toms understood Mrs. Shinal to mean that "she
wanted me to push forward if I got in a situation where I
thought I could [remove all of the tumor] with a reasonable
risk." R.R. 503a. Dr. Toms testified that he reviewed
with Mrs. Shinal the alternatives, risks, and benefits of
total versus subtotal resection, and shared with Mrs. Shinal
his opinion that, although a less aggressive approach to
removing the tumor was safer in the short term, such an
approach would increase the likelihood that the tumor would
grow back. Although he was unable to recall many of the
specifics about his conversation with Mrs. Shinal, Dr. Toms
testified that he advised Mrs. Shinal that total surgical
resection offered the highest chance for long-term survival.
R.R. 503-510a. By the end of the visit, Mrs. Shinal had
decided to undergo surgery. However, the surgical approach
had not yet been determined. R.R. 513a.
thereafter, on December 19, 2007, Mrs. Shinal had a telephone
conversation with Dr. Toms' physician assistant. Mrs.
Shinal later testified that she asked the physician assistant
about scarring that would likely result from surgery, whether
radiation would be necessary, and about the date of the
surgery. The medical record of this telephone call indicated
that Dr. Toms' physician assistant also answered
questions about the craniotomy incision. On January 17, 2008,
Mrs. Shinal met with the physician assistant at the Geisinger
Medical Center's Neurosurgery Clinic. The physician
assistant obtained Mrs. Shinal's medical history,
conducted a physical, and provided Mrs. Shinal with
information relating to the surgery. Mrs. Shinal signed an
informed consent form.
trial, Mrs. Shinal was unable to recall being informed of the
relative risks of the surgery, other than coma and death.
Mrs. Shinal testified that, had she known the alternative
approaches to surgery, i.e., total versus subtotal
resection, she would have chosen subtotal resection as the
safer, less aggressive alternative.
January 31, 2008, Mrs. Shinal underwent an open craniotomy
total resection of the brain tumor at Geisinger Medical
Center. During the operation, Dr. Toms perforated Mrs.
Shinal's carotid artery, which resulted in hemorrhage,
stroke, brain injury, and partial blindness.
December 17, 2009, Mrs. Shinal and her husband, Robert J.
Shinal (collectively "the Shinals"), initiated this
medical malpractice action in the Court of Common Pleas of
Montour County, alleging that Dr. Toms failed to obtain Mrs.
Shinal's informed consent for the January 31, 2008
surgery. According to the Shinals'
complaint, Dr. Toms failed to explain the risks of surgery to
Mrs. Shinal or to offer her the lower risk surgical
alternative of subtotal resection of the benign tumor,
followed by radiation. The Shinals initially named as
defendants Geisinger Medical Center, Geisinger Clinic, and
Dr. Toms. The parties agreed to bifurcate the issues of
liability and damages. The liability phase of the trial was
to address solely the issue of whether Dr. Toms obtained Mrs.
Shinal's informed consent before surgery.
to jury selection, the Shinals moved to strike all potential
jurors who were either employed or insured by, or who had
family members employed or insured by, any Geisinger entity.
On February 12, 2013, the trial court granted in part and
denied in part the Shinals' motion, directing that
prospective jurors who were employed by named defendants
Geisinger Medical Center or Geisinger Clinic, or who had
family members residing in the same house who were so
employed, would be stricken for cause. The trial court
immediately attempted to select a jury. However, after
numerous prospective jurors were disqualified, the court
aborted the selection process and postponed the trial. The
Shinals moved for a change of venue, which the trial court
28, 2013, the trial court granted a motion for partial
summary judgment in favor of Geisinger Medical Center and
Geisinger Clinic, because the duty to obtain Mrs.
Shinal's informed consent belonged solely to Dr. Toms,
not to Dr. Toms' employer or the employer's agents.
See Valles v. Albert Einstein Med. Ctr., 805 A.2d
1232, 1239 (Pa. 2002) (holding that a medical facility lacks
control over the manner in which a physician performs his/her
duty to obtain informed consent, and cannot be vicariously
liable for breach of that duty).
April 8, 2014, the trial court amended its prior order of
February 12, 2013, in an attempt to comply with the two
plurality opinions of an intervening Superior Court decision.
See Cordes v. Assoc, of Internal Medicine, 87 A.3d
829, 843-45 (Pa. Super. 2014) (Opinion in Support of Reversal
("OISR") by Wecht, J.) (requiring, inter
alia, the exclusion of a prospective juror based upon a
presumption of prejudice arising from the juror's
employment by the parent company of a named corporate
defendant); id. at 869-70 (OISR by Donohue, J.)
(requiring, inter alia, the exclusion of a
prospective juror based upon the juror's perception of
the financial impact the verdict could have on his employer,
the parent company of a named defendant). The Shinals invoked
Cordes and moved for the disqualification for cause
of any juror employed by any Geisinger entity. The trial
court denied this motion, concluding that Cordes did
not require per se disqualification based upon an
employment relationship with a non-party Geisinger entity.
Rather, the trial court undertook to inquire into whether
"prospective jurors or their close family members have a
close financial or situational relationship which may give
rise to an appearance or prospect of partiality or bias,
" and stated that it would "consider whether to
disqualify such prospective jurors" on an individual
basis. R.R. 178a.
April 15, 2014, the trial court began a second attempt at
jury selection. The trial court informed the parties that
each had four peremptory strikes to use on the main jury
panel and one to use for the alternate jurors. In accord with
its April 8, 2014 order, the trial court conducted an
individualized inquiry of all prospective jurors, asking
whether the juror or his/her close family members (1) knew,
or had been patients of, Dr. Toms; (2) were employed by a
Geisinger entity; (3) if employed by a Geisinger entity,
whether the prospective juror perceived that entity to be the
same entity employing Dr. Toms; and, if so, (4) whether the
prospective juror perceived that a verdict against Dr. Toms
would have an adverse financial impact upon that Geisinger
entity. The trial court also asked each juror whether he or
she could render a fair and impartial verdict.
voir dire, the Shinals moved to strike the following
prospective jurors for cause, asserting that they or their
immediate family member's close financial or situational
relationships should cause the court to presume prejudice:
Linda M. Woll, Denny Ackley, Louise A. Schiffino, and W.
Stephen Nagle, an alternate juror. Woll was an administrative
secretary at the Geisinger sleep labs. Ackley's wife
worked for thirty-five years as an administrative assistant
in a pediatrics department for a Geisinger entity. Schiffino
was a customer service representative for Geisinger Health
Plan. Nagle was a retired physician assistant who had
previously worked at a Geisinger entity, but never in Dr.
Toms' department. Additionally, Nagle's son worked as
a night security officer for a Geisinger entity.
the four prospective jurors indicated that they believed they
would be fair and impartial, that they did not personally
know Dr. Toms, that Dr. Toms did not medically treat them or
their close family members, and that they did not believe
that a verdict against Dr. Toms would negatively impact their
employer or their close family member's employer. The
trial court therefore denied the Shinals' motion to
dismiss these prospective jurors for cause, finding that the
relationships presented were more attenuated than those at
issue in Cordes, and that the jurors' assurances
of impartiality rendered them fit to serve on the jury.
Accordingly, the Shinals exercised three of their four
peremptory challenges to excuse Woll, Ackley, and Schiffino
from the main jury panel,  and exercised their sole peremptory
challenge for the alternate jurors on Nagle.
the presentation of evidence, the trial court instructed the
jury with regard to Dr. Toms' duty to obtain informed
consent from Mrs. Shinal as follows: "[l]n considering
whether [Dr. Toms] provided consent to [Mrs. Shinal], you may
consider any relevant information you find was communicated
to [Mrs. Shinal] by any qualified person acting as an
assistant to [Dr. Toms]." R.R. 673a. During
deliberations, the jury asked the court whether information
conveyed by physician assistants could satisfy informed
consent requirements. In response, the trial court
essentially repeated its prior instruction. R.R. 693a.
April 21, 2014, the jury returned a verdict in favor of Dr.
Toms. On May 1, 2014, the Shinals moved for post-trial
relief, asserting two claims of error that are relevant to
this appeal. First, the Shinals asserted that the trial court
erred in failing to strike for cause Woll, Ackley, Schiffino,
and Nagle because of their employment, or employment of close
family members, with a Geisinger entity. Second, the Shinals
argued that the trial court erred in its informed consent
jury instructions. Specifically, the Shinals asserted that
the trial court improperly instructed the jury that the jury
could consider any relevant information communicated to Mrs.
Shinal by any qualified person acting as an assistant to Dr.
Toms. The trial court denied post-trial relief.
Shinals appealed to the Superior Court, which affirmed. The
Superior Court first addressed whether the trial court should
have stricken Woll, Ackley, Schiffino, and Nagle for cause.
According to the Shinals, the trial court should have
presumed prejudice based upon the four prospective
jurors' financial and situational relationships with
Geisinger entities. In support of their argument of trial
court error, the Shinals asserted that the trial court's
failure to excuse the four prospective jurors for cause
forced the Shinals to exercise and exhaust their peremptory
challenges on those jurors, leaving them unable to strike
other jurors whom the Shinals believed might be biased in
favor of Dr. Toms.
Superior Court rejected this argument. The Superior Court
observed that the Shinals' argument was premised upon
Cordes, and that the trial court endeavored to
comply with Cordes during jury selection. However,
the Superior Court held that Cordes was not binding
precedent because no opinion garnered a majority of the court
in that case. Instead, the Superior Court relied upon
McHugh v. Proctor & Gamble Paper Products Co.,
which established that the trial court should presume a
likelihood of prejudice based upon "a close
relationship, familial, financial, or situational, with the
parties, counsel, victims or witnesses." 776 A.2d 266,
270 (Pa. Super. 2001). Engaging in an independent review of
the record, the Superior Court found that none of the
challenged prospective jurors had such a close relationship
with the litigants. Rather, the Shinals premised their
assertion of prejudice upon situational relationships with
Dr. Toms' employer, a non-party. The Superior Court
declined to expand the range of disqualifying relationships
beyond those recognized in McHugh.
Superior Court also rejected the Shinals' assertion that,
because they were forced to exhaust their peremptory
challenges, they were unable to remove seated jurors whom the
Shinals believed to be biased in favor of Dr. Toms due to
their own situational relationships with Geisinger. According
to the Superior Court, the Shinals waived this argument by
failing to make a timely, specific objection to the trial
court that they had too few peremptory challenges, and by
failing to request additional peremptory challenges. The
Superior Court acknowledged that the Shinals raised this
objection in their pretrial motion to strike, at a time when
Geisinger Medical Center and the Geisinger Clinic were
defendants. However, the Superior Court held that the Shinals
nevertheless waived this claim by failing to renew their
motion to strike following the dismissal of the Geisinger
Superior Court further rejected the Shinals' argument
that the trial court's informed consent charge, which
permitted the jury to consider information provided by Dr.
Toms' physician assistant to Mrs. Shinal, was erroneous
and prejudicial. The Superior Court relied upon two of its
prior cases to opine that information communicated to a
patient for purposes of obtaining informed consent may be
conveyed by a qualified professional acting under the
attending doctor's supervision.
Juror Challenge For Cause
first issue before us is whether the Shinals were entitled to
strike for cause prospective jurors with familial,
situational, or financial relationships with Dr. Toms'
employer, whether direct or indirect, when Dr. Toms'
allegedly tortious conduct occurred in the course of his
employment. First, we define our relevant standard of review.
Then, we apply that standard to the facts presented.
Standard of Review
to the Shinals, the denial of a for-cause challenge premised
upon a juror's close familial, financial, or situational
relationship with the parties, counsel, victims, or
witnesses, raises a question of law, as to which our standard
of review is de novo and our scope of
review plenary. McHugh, 776 A.2d at 270. Dr. Toms
differs, asserting that disqualification of a juror for cause
is a decision for the trial court, which will not be reversed
absent a palpable abuse of discretion. Commonwealth v.
Briggs, 12 A.3d 291, 332-33 (Pa. 2011); Commonwealth
v. Stevens, 739 A.2d 507, 521 (Pa. 1999).
of the most essential elements of a successful jury trial is
an impartial jury." Bruckshaw v. Frankford Hosp. of
City of Phila., 58 A.3d 102, 109 (Pa. 2012); see
Colosimo v. Pa. Bee. Co., 518 A.2d 1206, 1209 (Pa.
1986). We protect that impartiality through the voir
dire process, vetting potential jurors to discern bias
or relationships to the parties, lawyers, or matters
involved. Bruckshaw, 58 A.3d at 110;
Commonwealth v. Marrero, 687 A.2d 1102, 1107 (Pa.
1996) ("The purpose of voir dire is to ensure
the empaneling of a fair and impartial jury capable of
following the instructions of the trial court.");
Colosimo, 518 A.2d at 1209; see Pa.R.C.P.
220.1-221 (pertaining to voir dire and the use of
peremptory challenges). Importantly, it is not simply the
fact of partiality, but also the appearance of partiality or
bias, that the trial court must consider. 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.")).
for cause are essential means by which to obtain a jury that
in all respects is impartial, unbiased, free from prejudice,
and capable of judging a case based solely upon the facts
presented and the governing law. At the trial of Aaron Burr,
Chief Justice John Marshall explained the principle:
Why is it that the most distant relative of a party cannot
serve upon his jury? Certainly the single circumstance of
relationship, taken in itself, unconnected with its
consequences, would furnish no objection. The real reason of
the rule is, that the law suspects the relative of
partiality; suspects his mind to be under a bias, which will
prevent his fairly hearing and fairly deciding on the
testimony which may be offered to him. The end to be obtained
is an impartial jury; to secure this end, a man is prohibited
from serving on it whose connexion with a party is such as to
induce a suspicion of partiality. The relationship may be
remote; the person may never have seen the party; he may
declare that he feels no prejudice in the case; and yet the
law cautiously incapacitates him from serving on the jury
because it suspects prejudice, because in general persons in
a similar situation would feel prejudice.
United States v. Burr, 25 Fed. Cas. 49, 50 (C.C.
common law, for-cause challenges were divided into four
classes: "Propter honoris respectum, out of
respect of rank or honor; propter defectum, on
account of some defect; propter delictum, on account
of crime; and propter affectum, on account of
affection or prejudice." Butler v. Greensboro Fire
Ins. Co., 145 S.E. 3, 4 ( N.C. 1928) (emphasis
added). Challenges propter affectum
operated to bar the seating of a juror employed by a party to
the litigation due to the appearance of partiality arising
from the party's potential control over the juror.
See Cummings v. Gann, 52 Pa. 484, 487 (1866)
("All the authorities seem to be, that where the
objection is not on account of relationship, to require it to
be shown as a ground of principal challenge propter
affectum, as between the party and juror, that the
former holds a position in which he might exercise a control
over the latter."). As this Court explained long ago:
The law, in every case, is scrupulous to prevent even the
possibility of undue bias; it does not deal with a juror as
with a witness; admit him, though it doubts him; the
slightest ground of prejudice is sufficient. The prejudice
itself need not be made out; the probability of it is enough.
One related, though by marriage only, as remotely as the
ninth degree, to the defendant or the prosecutor, may be
challenged off the jury for that cause. Any one, who, in any
possible way, no matter how honestly, has been warped by any
preconceived opinion which may affect his verdict, or has
made up his mind what verdict he is to give, and declared it,
is excluded. Nothing in the law can well be more extensive
than this right of challenge propter affectum.
Lesher, 1827 WL 2776, at *2.
general matter, the test for determining whether a
prospective juror is disqualified is "whether he or she
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." Commonwealth v. Colson, 490 A.2d
811, 818 (Pa. 1985). The trial judge must determine
whether the juror is able to put aside any biases or
prejudices upon proper instruction from the court.
Commonwealth v. Bridges, 757 A.2d 859, 873 (Pa.
2001); Colson, 490 A.2d at 818; Commonwealth v.
Drew, 459 A.2d 318 (Pa. 1983).
"[t]he decision on whether to disqualify is within the
discretion of the trial court and will not be reversed in the
absence of a palpable abuse of discretion."
Commonwealth v. Koehler, 737 A.2d 225, 238 (Pa.
1999) (quoting Commonwealth v. Wilson, 672 A.2d 293,
299 (Pa. 1996)); see Colson, 490 A.2d at 818;
Commonwealth v. Black, 376 A.2d 627 (Pa. 1977).
However, we have required the trial court to grant a
challenge for cause in two scenarios: "when the
prospective juror has such a close relationship, familial,
financial, or situational, with the parties, counsel,
victims, or witnesses" or, alternatively, when the juror
"demonstrates a likelihood of prejudice by his or her
conduct and answers to questions." Bridges, 757
A.2d at 873; see Wilson, 672 A.2d at 299;
Colson, 490 A.2d at 818.
challenge of a prospective juror for cause may invoke bias
that is either implied or actual. Implied bias is presumed as
a matter of law based upon special circumstances, and
"is attributable in law to the prospective juror
regardless of actual partiality." United States v.
Wood, 299 U.S. 123, 134 (1936). In such
circumstances, we do not inquire into whether the juror is
capable of being objective and rendering a fair and impartial
decision. Rather, we require disqualification to avoid the
mere appearance of partiality.
Superior Court has explained that the standard of appellate
review differs depending upon whether bias is presumed, as
resulting from the juror's close familial, financial, or
situational relationship with the parties, counsel, victims,
or witnesses, or actual, as revealed by the juror through his
or her conduct and answers. In the first scenario, where the
presumption of prejudice arises from a prospective
juror's close relationship with the parties, counsel,
victims, or witnesses, the Superior Court has reviewed the
trial court's determination as a question of law, subject
to de novo review. Cordes, 87 A.3d at 834
(OISR, Wecht, J.); id. at 865 (OISR, Donohue, J.);
McHugh, 776 A.2d at 270 & n.3 (holding that
"the employer/employee relationship evokes a presumption
of prejudice so significant as to warrant disqualification of
employees of a party" as a matter of law, and
overturning the trial court's refusal to dismiss for
cause). By contrast, in the second scenario, where a
juror's prejudice is revealed through his or her conduct
or answers, the Superior Court has applied a deferential
standard of review, reversing only when the trial court has
abused its discretion. McHugh, 776 A.2d at 270.
agree with the Superior Court's distinction. Our review
of a trial court's decision to disqualify a juror based
upon that juror's relationship with the parties, counsel,
victims, or witnesses depends upon whether the relationship
is sufficiently close that we presume the likelihood of
prejudice under the first scenario, or whether the juror
reveals a likelihood of prejudice through conduct and answers
to questions under the second scenario. In the first
scenario, we will presume prejudice for the purpose of
ensuring fairness and will review the trial court's
determination for an error of law. See Briggs, 12
A.3d at 333 (examining whether to presume prejudice due to
relationships between three prospective jurors and the
victims or their families). Our review of a
question of law is de novo, and the scope of our
review is plenary. Bowling v. Office of Open
Records, 75 A.3d 453, 466 (Pa. 2013).
second scenario, where the juror's conduct or answers to
questions reveal a likelihood of prejudice, we agree with the
Superior Court that "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." McHugh, 776 A.2d at
270 (quoting Commonwealth v. Johnson, 445 A.2d 509,
512 (Pa. Super. 1982)).We defer to the trial judge
because it is he or she that observes the juror's conduct
and hears the juror's answers:
[T]he juror appears before [the trial judge, who] sees him
and hears what is said; and is able to form his opinion as
much from the proposed juror's conduct as from the words
which he utters, printed in the record. Hesitation, doubt,
and nervousness indicating an unsettled frame of mind, with
other matters, within the judge's view and hearing, but
which it is impossible to place in the record, must be
considered. As it is not possible to bring these matters to
our attention, the trial judge's view should be given
great weight in determining the matters before him.
Gelfi, 128 A. at 79.
Superior Court has observed, these two scenarios are not
mutually exclusive. Johnson, 445 A.2d at 512. A
juror may indicate through questioning an inability to be
impartial because of a particular relationship with someone
involved in the case. Id. When a determination of a
juror's ability to be impartial depends upon the
juror's answers and explanations, we afford the trial
court's judgment much weight. Hence, even in the context
of presumed prejudice, the trial court retains discretion to
explore and assess the relevant relationship presented.
See, e.g., Schwarzbach v. Dunn, 381 A.2d 1295, 1298
(Pa. Super. 1977) (granting a new trial due to a juror's
wife's unexplained employment relationship with counsel
because the trial court did not explore the relationship
established the relevant standard of review, we proceed now
to consider the parties' arguments in light of our
precedents and the facts presented.
resolve whether the trial court erred in determining that the
particular relationships implicated in this case were not so
close as to require a presumption of prejudice, and whether
the prospective jurors' conduct and answers during
voir dire revealed their partiality. The
purportedly disqualifying relationships presented by the four
prospective jurors arose because of the jurors' or their
family members' past or present employment relationships
with a Geisinger entity owned by Geisinger Heath System,
where Dr. Toms was also employed by Geisinger Clinic, an
entity owned by Geisinger Health System. The parties agree
that these employment connections are indirect familial,
financial, or situational relationships, but disagree about
whether they are sufficiently close so as to require a
presumption of prejudice. Whether to presume prejudice is a
question of law, as to which our review is de novo.
However, where a juror's partiality is arguably revealed
through answers elicited during voir dire, we review
the trial court's decision for an abuse of discretion.
Shinals claim, as they have since the jury selection process
began, that the trial court improperly declined to strike for
cause Woll, Ackley, Schiffino, and Nagle. According to the
Shinals, the indirect familial, financial, and situational
employment relationships presented by these jurors place this
case squarely within the first scenario articulated in
Bridges, and require a presumption of prejudice.
Acknowledging that Geisinger Medical Center and Geisinger
Clinic had been dismissed from the case, the Shinals argue
that this is irrelevant because "Geisinger"
nominally remained in the case. The Shinals assert that every
entity bearing the Geisinger name is part of the same
company, and that a claim against an employee of any
Geisinger entity for actions committed at work upon Geisinger
property and proven by Geisinger witnesses and Geisinger
documents necessarily affects Geisinger. Appellant's
Brief at 26. Therefore, according to the Shinals, a verdict
against Dr. Toms is a verdict against Geisinger
Health System, the ultimate employer of the four contested
jurors or their family members.
Toms argues that the trial court was not required to presume
prejudice because of the jurors' remote, indirect
relationships with Dr. Toms through non-party Geisinger
entities. Dr. Toms further maintains that the jurors'
voir dire answers did not indicate actual bias
because the jurors stated that they did not believe their
employers would be financially impacted by a verdict against
Dr. Toms. Although the Shinals focus upon the first scenario
articulated in Bridges, Dr. Toms asserts that the
four jurors were not subject to disqualification under either
approach. Both parties assert that Cordes controls
and supports their position. Although the trial court
likewise considered Cordes to be controlling and
attempted to comply with the OISRs by employing a modified
version of then-Judge, now-Justice Donohue's reasoning,
the Superior Court disregarded Cordes as a
non-precedential plurality opinion.
presumption of prejudice arises when a juror has a close
familial, financial, or situational relationship with a
participant in the litigation (i.e., the parties,
counsel, victims, or witnesses). See Bridges, 757
A.2d at 873. The mere existence of some familial, financial,
or situational relationship does not require dismissal in
every case. "A remote relationship to an involved party
is not a basis for disqualification where a prospective juror
indicates during voir dire that he or she will not
be prejudiced." Colson, 490 A.2d at 818.
determining whether a juror's relationship to the
litigation is so sufficiently close that it creates a
presumption of prejudice, or so sufficiently remote that it
does not, we cannot ignore the suspicions, and the distrust
of the resulting jury verdicts, that may arise based upon the
nature of the relationship. Jurors should be above suspicion.
Close connections suggest bias due to the nature of the tie;
if the relationship presents the appearance of impropriety,
prejudice is presumed. "The moment the fact of
relationship, favor, enmity, prejudice, bias, preconceived
opinion, scruple, or interest of a sufficient nature, is made
out it removes the juror; nothing further is necessary."
Gelfi, 128 A. at 78. The presumption of prejudice
and the risk of seating a juror with an implied bias animate
much of the precedent requiring the trial court to excuse a
juror for cause. Even if the juror believes himself or
herself able to remain objective and to rule without bias,
the relationship may be so close that it appears biased. In
such circumstances, the law errs on the side of removal in
order to ensure the appearance of an objective jury.
required for-cause disqualification when the prospective
juror has a relationship to witnesses in a case. See,
e.g., Jones, 383 A.2d at 877 (holding that a police
officer on active duty at the time of trial belonging to the
same police force as the testifying officers is
disqualified). Additionally, the trial court must
excuse a prospective juror for cause if the juror is a
stockholder in a corporation that has an interest in the
matter. Seeherman, 99 A. at 175. The weight of
authority excludes venirepersons who could be suspected of
bias due to their business, professional, familial, or social
relationships with a participant to the
other hand, remote relationships should be scrutinized by the
trial court in order to elucidate the particulars and address
the potential appearance of partiality. Colson,
supra at 818-19. In Koehler, 737 A.2d at 238,
for example, the trial court discovered during trial that a
juror was related to the co-defendant's step-father
through her husband's sister. The juror assured the court
that her familial relationship would not affect her ability
to be a fair and impartial juror. The trial court denied the
defendant's request to remove the juror and to replace
her with an alternate. On appeal, this Court affirmed,
deferring to the trial court's finding that the
juror's relationship with the co-defendant was attenuated
and that the concerns were ameliorated by the juror's
testimonial assertion of impartiality. "Since it is the
trial court that was in the best position to assess the
credibility of this juror, . . . and since a court may
properly refuse to excuse a juror when the trial judge
believes that the juror would be fair and impartial, . . . we
find no abuse of discretion in the refusal by the trial court
to remove Juror Number Six." Koehler, 737 A.2d
at 238-39 (citations omitted); see also Briggs, 12
A.3d at 333-34 (finding no basis in the prospective
jurors' voir dire answers to reverse the trial
court's discretionary ruling declining to excuse for
cause three jurors because of attenuated relationships with
the victims or their families).
cases in our Commonwealth have examined employment
relationships between jurors (or their family members) and
corporate parties. However, Pennsylvania law clearly holds
that, where there is a direct employment relationship between
a juror and a party or participant, the courts must presume
prejudice and the juror must be stricken for cause.
Hufnagle, 76 A. at 206; McHugh, 776 A.2d at
270 (; Schwarzbach, 381 A.2d at 1297 (presuming
prejudice and reversing the trial court's refusal to
excuse a juror whose wife had an uncertain history of
employment with the law firm representing the plaintiff).
illustrates the presumption of prejudice that results from a
direct employment relationship. There, plaintiffs counsel
requested the trial court to strike, for cause, all potential
jurors employed by the corporate defendant, Proctor &
Gamble. McHugh, 776 A.2d at 268. The trial court
denied the request. On appeal, the plaintiff challenged the
trial court's denial of the for-cause challenges. The
Superior Court agreed with the plaintiff that the trial court
committed an error of law. According to the court, "the
employer/employee relationship evokes a presumption of
prejudice so significant as to warrant disqualification of
employees of a party." Id. at
270. This conclusion flowed from the
notion that a juror whose livelihood derives from a party
cannot be expected to render an impartial verdict in a case
involving that party. Id. at 272. We agree. A direct
employment relationship, i.e., the relationship
between an employer and employee, is a close relationship
that requires a presumption of prejudice.
presented a number of more attenuated employment
relationships. In Cordes, the Superior Court en
banc examined, inter alia, the prospect of
partiality or bias arising from an indirect situational
relationship between a juror (Richard Majors) whose employer,
Heritage Valley Health Systems, owned a named corporate
defendant, Tri-State Medical Group, which was also the
defendant physician's employer. In addition to this
indirect employment relationship, Majors revealed during
voir dire his belief that his employer had a
financial interest in the outcome of the litigation through
its subsidiary, the corporate defendant, and his belief that
he and the defendant physician shared a common employer. The
trial court declined to excuse Majors for cause. Seven
members of a nine-judge panel voted in favor of reversal, but
neither of the two lead opinions succeeded in garnering the
votes of a majority of the judges.
author opined, inter alia, that indirect
relationships between a juror and a party "may furnish a
basis for perse exclusion." Cordes, 87
A.3d at 838 (OISR, Wecht, J.). Although Majors was not
employed by a named defendant, this author opined that his
bias was implicit because "he was employed by an entity
that he believed loomed over himself and the other
defendants." Id. at 845. This author recognized
that Majors' bias was made explicit by his recognition
that his employer had "an undisputed financial interest
in the outcome of the litigation." Id. The
employment relationship, viewed "in tandem" with
Majors' recognition regarding his employer's
financial interest, id. at 845 n.12, "created a
sufficient risk of partiality to establish prejudice per
se arising from his jury service." Id. at
writing in support of reversal, now-Justice, then-Judge
Donohue agreed that an indirect relationship could require
disqualification, but did not believe that the court could
presume prejudice from Majors' employer's ownership
interest in a named corporate defendant: "The purported
employment relationship between Juror Majors and Dr. Ray,
standing alone, is too attenuated to warrant the grant of a
challenge for cause in this case." Id. at 869
(OISR, Donohue, J.). According to Justice Donohue, Majors
should have been disqualified due to his "perception of
the financial impact the verdict could have on his
employer." Id. at 869-70 (OISR, Donohue, J.).
the two OISRs in Cordes differed as to whether
Majors' connection to the case through his employer was
sufficiently close as to warrant a presumption of prejudice.
However, the two opinions agreed that the voir dire
of Majors revealed actual bias; specifically, Majors'
belief that his employer had a pecuniary interest in the
outcome of the case.
agree with the convergence of the OISRs in Cordes.
An indirect employment relationship with an employer that has
an ownership interest in a party defendant, standing alone,
does not warrant a presumption of prejudice. However, a juror
may reveal a likelihood of prejudice resulting from such an
indirect employment relationship through his or her conduct
or answers to questions. Because the law endeavors to hold
the jury system free from any appearance of partiality, it is
incumbent upon trial courts to explore specific, indirect
employment relationships between jurors (and their close
family members) and parties, and to be vigilant in guarding
against the appearance of partiality that can arise in the
context of such relationships. An indirect employment
relationship will require removing a potential juror for
cause if the juror believes that the outcome of the case
could have a financial impact upon his or her employer. When
it is apparent both that there is a common employer between a
juror or a juror's close family member and a party
defendant, and that the juror believes that the employer
would be affected by the outcome of the case, the trial court
must remove the juror for cause.
case presents several indirect employment relationships that
are more attenuated than the indirect employment relationship
in Cordes. Majors' connection to the defendant
in Cordes was through his employer, which owned one
defendant and employed another. The four jurors at issue in
today's case were two or three degrees removed from the
scenario presented by Majors in Cordes, as they or
their close family members were employed by companies owned
by the same parent company that owned Dr. Toms' employer.
Unlike in Cordes, none of the corporate subsidiaries
are parties. Neither Geisinger Health System nor Geisinger
Clinic were trial defendants. Dr. Toms was the only
defendant. None of the jurors knew Dr. Toms.Further, as the
trial court developed during voir dire, none of the
jurors worked directly for Dr. Toms' employer, Geisinger
Clinic, or at the facility where Mrs. Shinal's surgery
was performed, Geisinger Medical Center. Nor was there any
indication that the non-party Geisinger employers had a
financial stake in the outcome of the litigation. In
particular, Woll was employed as "an admin secretary for
the sleep labs, " R.R. 246a, which was in turn owned by
Geisinger Health System, which also owned Geisinger Clinic,
which employed Dr. Toms. Ackley was connected through his
wife, who worked for "Dr. Ryan in pediatrics, "
R.R. 250a-51a, and was therefore employed by a Geisinger
entity owned by Geisinger Health System, which, again, also
owned Geisinger Clinic, which employed Dr. Toms. Schiffino
was employed as a customer service representative for
Geisinger Health Plan, R.R. 271a-72a, 353a, which was owned
by Geisinger Health System, which, again, also owned
Geisinger Clinic, which employed Dr. Toms. Finally, alternate
juror Nagle was retired from employment as a physician
assistant in plastic surgery and gastrointestinal medicine,
for an entity owned by Geisinger Health System, which also
owned Geisinger Clinic, which employed Dr. Toms. Nagle
additionally was connected through his son, who worked as a
security officer at "Geisinger." R.R. 309a-11a. It
is not clear whether Nagle's son worked directly for
Geisinger Heath System or a Geisinger entity owned by
Geisinger Health System, which of course also owned Geisinger
Clinic, which employed Dr. Toms.
the indirect familial, financial, or situational
relationships presented by these four jurors are not akin to
the close relationships as to which we have presumed
prejudice in the past. The respective relationships between
Dr. Toms and Woll, Schiffino, or Nagle, through their current
or former non-party employer's parent company, or between
Ackley or Nagle through, respectively, their wife's or
son's nonparty employer's parent company, were
indirect, and not sufficiently close so as to require a
presumption of prejudice as a matter of law.
this case presents an indirect employment relationship, it
was incumbent upon the trial court to engage the jurors in
questioning to reveal whether they believed that their or
their family member's current or former employer would be
financially harmed by an adverse verdict or whether the
relationship would affect the jurors' respective
abilities to be impartial. In assessing the trial court's
acceptance of the juror's answers, we apply a deferential
standard of review and will reverse the trial court upon a
palpable abuse of discretion. Koehler, 737 A.2d at
upon Justice Donohue's OISR in Cordes, the trial
court asked the jurors whether they believed that they, or
their family members, and Dr. Toms were employed by the same
company, and whether they or their family members'
employer would be financially affected by the litigation.
None of the jurors believed that a verdict against Dr. Toms
would financially impact their employer or a family
member's employer, and each stated that he or she could
act impartially. In particular, the trial court asked Woll if
she perceived that she and Dr. Toms were employed by the same
company. Woll responded that she and Dr. Toms "don't
even work in the same building." R.R. 246a. Woll further
responded that she did not believe that a verdict against Dr.
Toms would have a negative financial impact on her employer,
and she averred that she could be fair and impartial.
Id. at 247a.
believed that his wife and Dr. Toms were employed by the same
company. R.R. 251a ("They do work for the same
company."). Given this belief, the trial court asked
whether Ackley believed that a negative verdict against Dr.
Toms would have an adverse effect upon his wife's
employer. Id. Ackley initially indicated that he did
not know how to answer. Id. Upon further inquiry,
Ackley indicated that there would be no negative financial
impact upon his wife's employer, and that he was able to
be fair and impartial. Id. 251 -52a.
Schiffino initially was confused by the trial court's
questions, she did not believe that she and Dr. Toms were
employed by the same employer, R.R. 272a, and did not believe
that a negative verdict against Dr. Toms would have a
negative financial impact upon her employer.
the trial court established that Nagle did not know Dr. Toms
from his employment as a physician assistant, Nagle indicated
that, although he perceived his son to be working for the
same company as Dr. Toms, he did not believe a verdict
against Dr. Toms would have a negative financial effect upon
his son's employer. Id. at
trial court accepted the jurors' answers, finding that
none of the four challenged jurors believed that a verdict
against Dr. Toms would negatively affect their, or their
close family member's, employer. Tr. Ct. Op. at 9. The
trial court further accepted each juror's testimony that
he or she could remain fair and impartial. Id. Given
the jurors' answers during voir dire, the trial
court did not abuse its discretion in declining to strike
those jurors for cause. See Fletcher, 149 A.2d at
437 (finding no abuse of discretion where "the trial
judge was most circumspect in ascertaining whether . . .
[challenged jurors] were capable of rendering fairly a
verdict on the evidence adduced").
we decline to accept the Shinals' broad assertion that a
claim against a "Geisinger" employee for actions
committed during his employment necessarily has a negative
impact upon all entities bearing the Geisinger name.
See Appellant's Brief at 26. The cause of action
against Dr. Toms alleged failure to obtain informed consent.
The claim did not encompass any misconduct by any Geisinger
entity. As the trial court recognized, "a medical
facility lacks the control over the manner in which the
physician performs his duty to obtain informed consent so as
to render the facility vicariously liable."
Valles, 805 A.2d at 1239.
Jury Instruction: ...