MENDY TRIGG, INDIVIDUALLY, AND SMITHFIELD TRUST, INC., AS THE GUARDIAN OF THE ESTATE OF JILLIAN TRIGG, A MINOR, Appellants
CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, Appellee
from the Judgment entered June 28, 2017, in the Court of
Common Pleas of Allegheny County, Civil Division, at No(s):
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
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.  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.
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
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.
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
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