ANN SMITH, AS EXECUTRIX OF THE ESTATE OF DALE SMITH, DECEASED, ON BEHALF OF HERSELF INDIVIDUALLY, SURVIVING SPOUSE OF THE DECEDENT, AND THE NEXT OF KIN OF DALE SMITH, AND ON BEHALF OF THE ESTATE OF DALE SMITH, DECEASED Appellants
MARC CORDERO, M.D. AND UPMC MCKEESPORT, A DIVISION AND HOSPITAL OF THE UNIVERSITY OF PITTSBURGH MEDICAL CENTER AND UPMC WOUND HEALING SERVICES AT UPMC MCKEESPORT, A DIVISION OF UPMC MCKEESPORT AND THE UNIVERSITY OF PITTSBURGH MEDICAL CENTER
from the Order Entered August 7, 2018 In the Court of Common
Pleas of Allegheny County Civil Division at No(s):
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
medical malpractice case, Ann Smith, as Executrix of the
Estate of Dale Smith, deceased, on behalf of herself
individually, the next-of-kin of Dale Smith, and on behalf of
the Estate ("Smith"), appeals the judgment entered
in favor of Marc Cordero, M.D., UPMC McKeesport, a division
of the University of Pittsburgh Medical Center and UPMC Wound
Healing Services at UPMC McKeesport, a division of UPMC
McKeesport and the University of Pittsburgh Medical Center
(collectively "UPMC"). We conclude the trial court
erred in denying Smith's motions to strike two jurors for
cause and that the error was not harmless. We vacate the
judgment and remand.
Smith ("Decedent"), who suffered from diabetes,
kidney disease, and other ailments, visited Dr. Cordero due
to leg wounds/ulcers. Smith claims that Dr. Cordero
misdiagnosed the leg wounds as venous, not arterial, and this
misdiagnosis caused Decedent to have his leg amputated. Smith
alleges this amputation caused a series of events that
ultimately resulted in Decedent's death.
selection commenced in March 2018. A court clerk, not the
trial judge, conducted the voir dire. The voir
dire proceeding before the court clerk was not
transcribed. Smith made motions to challenge for cause Jurors
No. 25, 37, and 45. The parties appeared before the trial
judge for a hearing on the motions. The hearing before the
trial judge as to the challenges was transcribed.
motions to challenge for cause related to the jurors'
affirmative answers to two questions:
[1.] Do you have any feelings or opinions about whether
medical malpractice lawsuits affect the cost, availability
and other medical services[?]
[2.] Do you have any feelings or opinions as to whether there
should be a minimum or maximum amount of money that can be
awarded to an injured party?
N.T., 3/26/18-4/3/18, at 4-5.
counsel explained to the court that Juror No. 37 "had
some pretty strong opinions and she responded to questions
saying that she believes that there should be a maximum on
jury awards" and that "due to the exorbitant
awards, she believes that malpractice cases are keeping
doctors from practicing medicine." Id. at 3-4.
Counsel explained that "if somebody . . . say[s] that
malpractice cases in general are keeping doctors from
practicing, that's an inherent belief that we're not
starting on the same ground level. . . . She's going in
with a preconceived notion." Id. at 4.
counsel stated that "it was clear that [Juror No. 37]
was . . . a[n] intelligent woman and an articulate woman who
expressed that she had opinions regarding
circumstances." Id. at 6. Counsel stated that
Juror No. 37 related a personal experience-"[she] was
raised in a small town where the circumstances were such
because of the high cost of malpractice coverage, certain
OB/GYN doctors failed [to] deliver babies. You couldn't
get doctors to deliver babies in [her] town."
Id. When asked whether she could be fair and
impartial, Juror No. 37 responded "yes" and stated
that although she thought the verdicts were high and
excessive she could "listen to the instructions and be
fair and impartial." Id. at 6-7.
counsel stated that Juror No. 25 "believe[d] that
jur[ies] award too much money in malpractice cases and
malpractice cases drive up the cost of services."
Id. at 8. She also stated she would follow the
court's instructions. Id. UPMC's counsel
stated that Juror No. 25 was "less expressive" than
Juror No. 37 and that Juror No. 25 "expressed no real
detailed opinion" and "just answered [in] the
affirmative and then moved on." Id. at 9.
counsel stated that Juror No. 45 had the same responses, and
said that "she was a little stronger on the maximum
awards [and] . . . I believe she said she believes in
caps." Id. at 10. He stated "[s]he has the
fundamental beliefs" regarding "malpractice cases
and the amount of award[s that] have no business on the
panel." Id. UPMC's counsel stated that
"[t]he fact that the[ jurors] have opinions doesn't
necessarily make them biased ...