Blum by Blum v. Merrell Dow Pharmaceuticals, Inc.

Citation626 A.2d 537,534 Pa. 97
PartiesJeffrey BLUM, a minor, by his parents and natural guardians, Joan and Fred BLUM, and Joan and Fred Blum, in their own right, Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., and Rite-Aid Pharmacy, Appellees.
Decision Date03 June 1993
CourtUnited States State Supreme Court of Pennsylvania

Thomas R. Kline, Philadelphia, for appellants.

Andrew Rogoff, Joseph E. Conley, Jr. (pro hac vice), Edward W. Madeira, Philadelphia, for appellees.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

NIX, Chief Justice.

Appellants, Jeffrey Blum, a minor, by his parents and natural guardians, Joan and Fred Blum, and Joan and Fred Blum in their own right, appeal from an Order of the Superior Court affirming in part and reversing in part the Order of the Court of Common Pleas of Philadelphia County granting a motion for judgment notwithstanding the verdict ("judgment n.o.v."), in favor of Rite-Aid Pharmacy ("Rite-Aid"), and denying a motion for judgment n.o.v. and/or new trial filed by Appellee, Merrell Dow Pharmaceuticals, Inc., ("Merrell Dow"). The issue before this Court is whether Article I, Section 6 of the Pennsylvania Constitution entitles a party who demands a twelve person jury to a verdict from a jury of twelve persons. For the reasons that follow, we affirm the Superior Court Order and hold that Section 6 of Article I of the Pennsylvania Constitution entitles a party who properly demands a twelve person jury to a verdict from a jury of twelve persons.

This appeal stems from the following facts. In September of 1980, Mrs. Blum gave birth to a son, Jeffrey, who was born with deformities of both legs known medically as talus equinovarus, also described as bilateral "club feet." Subsequently, Mr. and Mrs. Blum, on behalf of their minor son, filed a complaint in trespass alleging that Mrs. Blum's ingestion of the prescription drug Bendectin during her pregnancy was the direct and proximate cause of Jeffrey's deformity. The Blums filed the complaint against Merrell Dow as the manufacturer and Rite-Aid as the supplier of the drug.

On October 24, 1986, Merrell Dow filed and served on the Blums a written demand for a twelve member jury with two alternates. Merrell Dow's request for twelve jurors was granted; however, no alternates were permitted to be chosen before the case went to trial on December 3, 1986.

On December 12, 1986, testimony during the trial was delayed when juror number 3, William G. Parsons, failed to appear. Merrell Dow objected to proceeding without twelve jurors. R.R. 201a. Nevertheless, following a recess during which the trial court was informed that juror number 3 was ill, the trial court decided to continue the trial with only eleven jurors. R.R. 202a-203a. Merrell Dow then moved for a mistrial arguing that it was entitled to a jury of twelve members. R.R. 203a-205a. The trial court denied the Motion for Mistrial. R.R. 206a. On January 20, 1987, the eleven person jury returned a unanimous verdict for the Blums. R.R. 218a-223a. Subsequently, the trial court granted delay damages, granted a motion for judgment n.o.v. to Rite-Aid, 1 but denied a motion for judgment n.o.v. to Merrell Dow.

Both the Blums and Merrell Dow appealed to the Superior Court. Merrell Dow alleged, inter alia, that the trial court erred when it denied Merrell Dow's Motion for Mistrial when juror number 3 was excused from jury service by reason of illness. The Superior Court reversed and remanded for a new trial holding that Merrell Dow's right to a trial by a jury of twelve members pursuant to Section 6 of Article I of the Pennsylvania Constitution had been violated where the verdict rendered against Merrell Dow was by a jury of only eleven members. Blum v. Merrell Dow Pharmaceuticals, Inc., 385 Pa.Super. 151, 560 A.2d 212 (1989). 2 Additionally, the Superior Court affirmed the trial court to the extent it granted Rite-Aid a judgment n.o.v.

The Blums appealed to this Court. On May 7, 1991, this Court granted allocatur limited to the issue of whether the Pennsylvania Constitution, Article I, Section 6, entitles a party who demands a twelve person jury to a verdict of twelve persons. 527 Pa. 614, 590 A.2d 755 (1991). For the reasons that follow, we affirm the Superior Court and hold that the Pennsylvania Constitution, Article I, Section 6, entitles a party who properly demands a twelve person jury to a verdict of twelve persons.

United States Constitution

Our starting point must be the decision of the United States Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In Williams, the Supreme Court departed from a long history of requiring a twelve person jury as a necessary ingredient of the Sixth Amendment 3 guarantee of trial by jury in all criminal cases. Id. (departing from, e.g., Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898)). The Supreme Court in Williams concluded that the "twelve man panel is not a necessary ingredient of 'trial by jury,' and that [Florida's] refusal to impanel more than six members provided for by Florida law did not violate [Williams'] Sixth Amendment rights as applied to the states through the Fourteenth [Amendment]." 399 U.S. at 86, 90 S.Ct. at 1898, 26 L.Ed.2d at 452-53.

In Williams, prior to his trial for robbery in the State of Florida, Williams filed a motion to impanel a twelve person jury 4 instead of a six person jury provided by Florida law in all capital cases. Id. at 80, 90 S.Ct. at 1895, 26 L.Ed.2d at 449. That motion was denied. Williams was convicted as charged and was sentenced to life imprisonment. The District Court of Appeal affirmed. The United States Supreme Court affirmed in a 7-1 decision.

Justice White, writing for the majority in Williams, first indicated "[t]hat history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement." Id. at 87, 90 S.Ct. at 1899, 26 L.Ed.2d at 453. The Court observed "[t]hat same history, however, affords little insight into the considerations that gradually led the size of [the jury] to be generally fixed at 12." Id. (footnote omitted). Even though the size of the jury at common law became fixed at twelve, the Court perceived that particular feature to have been a historical accident. Id. at 89-90, 90 S.Ct. at 1899-1900, 26 L.Ed.2d at 454.

The Supreme Court therefore concluded:

[T]here is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry ... must be the function that the particular feature performs and its relation to the purposes of the jury trial.

Id. at 99-100, 90 S.Ct. at 1904-1905, 26 L.Ed.2d at 460. The Court reiterated that "the purpose of the jury trial ... is to prevent oppression by the Government." Id. at 100, 90 S.Ct. at 1905, 26 L.Ed.2d at 460 (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). As to the appropriate number of jurors, the Court announced that "the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community." 399 U.S. at 100, 90 S.Ct. at 1905, 26 L.Ed.2d at 460. With these goals in mind, the Court found little reason to think that a jury of six was less likely to achieve the stated goals than when the jury numbers twelve. Id. Thus, the Court deduced that "the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to mystics.' " Id. at 102, 90 S.Ct. at 1907, 26 L.Ed.2d at 461 (citation omitted).

The Court in Williams then held that the twelve person panel is not a necessary ingredient of the Sixth Amendment right to "trial by jury" as applied to the states through the Fourteenth Amendment. Id. at 103, 90 S.Ct. at 1907, 26 L.Ed.2d at 462. However, it noted the states are free to determine the value of larger juries and smaller juries and that they are "unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury." Id.

In Williams, however, the Supreme Court had reserved the question of whether "additional references to the 'common law' that occur in the Seventh Amendment 5 might support a different interpretation" regarding jury trials in civil cases. Colgrove v. Battin, 413 U.S. 149, 151, 93 S.Ct. 2448, 2449, 37 L.Ed.2d 522, 526 (1973) (quoting Williams v. Florida, 399 U.S. 78, 92 n. 30, 90 S.Ct. 1893, 1901 n. 30, 26 L.Ed.2d 446, 455 n. 30 (1970)). In Colgrove, a United States District Court Judge placed a civil diversity case before a jury of six in compliance with Local Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of Montana. Justice Brennan, writing for the majority, held that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases. Id. at 160, 93 S.Ct. at 2454, 37 L.Ed.2d at 531. Moreover, the Supreme Court broke with earlier decisions that stated "trial by jury" means "a trial by twelve" because they were dicta. Id. at 157, 93 S.Ct. at 2452, 37 L.Ed.2d at 529. (citing Capitol Traction Co. v. Hof, 174 U.S. 1, 13, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899); Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900); American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897)).

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