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Trigg v. Children's Hospital of Pittsburgh of UPMC

Superior Court of Pennsylvania

May 14, 2018

MENDY TRIGG, INDIVIDUALLY, AND SMITHFIELD TRUST, INC., AS THE GUARDIAN OF THE ESTATE OF JILLIAN TRIGG, A MINOR, Appellants
v.
CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, Appellee

          Appeal from the Judgment entered June 28, 2017, in the Court of Common Pleas of Allegheny County, Civil Division, at No(s): GD 13-002322.

          BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

          OPINION

          KUNSELMAN, J.

         Mendy Trigg (Jillian Trigg's mother) and Smithfield Trust, Inc. filed this appeal following a jury verdict in favor of Children's Hospital of Pittsburgh of UPMC. [1] The Triggs claim that Allegheny County Civil Division's jury selection process deprived them of their right to a fair trial. The Hospital insists that the palpable-error deference standard announced in McHugh v. Proctor & Gamble, 776 A.2d 266 (Pa. Super. 2001), requires us to affirm. However, for the reasons that follow, we cannot extend the McHugh deference standard to trial judges who fail to observe voir dire in person. After reviewing the Triggs' challenge to Prospective Juror 29 de novo, we reverse and remand for a new trial.

         The Triggs submitted three questions on appeal, all of which challenge the jury selection process in this case:

1. Did the trial court err in denying the [Triggs'] Motions to Strike for Cause potential jurors who exhibited such bias and prejudice that they could not have been fair and should have been stricken from the panel, which required the [Triggs] to use 3 of [their] 4 [peremptory] strikes to remove these potential jurors causing obvious prejudice to the [Triggs].
2. Did the trial court err specifically when it denied the [Triggs'] request to ask voir dire questions of the venire about (1) the [Hospital] and its relationship in the community, especially in light of [the Hospital's] opening statement when these issues were placed before the jury without any voir dire examination, (2) unintentional harm, since many jurors do not understand the burden of proof and hold the plaintiff to a higher burden than is required in civil cases; and (3) generally in imposing a restriction on additional voir dire questions that they may not include any facts or law of the case.
3. Did the trial court err:
(1) in failing to observe the demeanor and tenor of prospective jurors or; if observation by the Court wasn't being offered, in failing to assume that the demeanor and tenor of the prospective jurors exhibited extreme bias;
(2) in instructing and having the county clerk engage in rehabilitation following an expression of bias, rather than explore the bias; and
(3) in limiting [the Triggs'] Counsel's follow-up after an expression of bias by a potential juror.

Triggs' Brief at 5-6.[2]

         Specifically, with respect to the first question, the Triggs argue that prospective Jurors 28, 29 and 37 should have been stricken for cause, and the failure to strike these jurors for cause was prejudicial. Triggs' Brief at 15-23. Our analysis of questions 1 and 3 (1) with respect to Juror 29 disposes of this appeal.

         The Civil Division of the Court of Common Pleas of Allegheny County does not assign a trial judge to preside over jury selection. Instead, the "Calendar Control Judge" delegates that duty to a court clerk in the Jury Assignment Room. See N.T., 3/17/17, at 3, 15. Potential jurors meet individually with the clerk and the parties' attorneys. Id. at 23. The clerk asks a series of standardized questions, and then the lawyers may pose five ...


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