Mendy Trigg, Individually & Smithfield Trust, Inc. v. Children's Hosp. of Pittsburgh of Upmc

• Decision Date: 22 April 2020
• Docket Number: No. 3 WAP 2019,3 WAP 2019
• Citation: 229 A.3d 260
• Parties: Mendy TRIGG, individually and Smithfield Trust, Inc., as the Guardian of the Estate of J. T., a Minor, Appellees v. CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, Appellant
• Court: Pennsylvania Supreme Court

229 A.3d 260

Mendy TRIGG, individually and Smithfield Trust, Inc., as the Guardian of the Estate of J. T., a Minor, Appellees

v.CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, Appellant

No. 3 WAP 2019

Supreme Court of Pennsylvania.

Argued: October 15, 2019

Decided: April 22, 2020

OPINION

JUSTICE TODD

In this case, a medical negligence suit brought by Appellees against Appellant Children's Hospital of Pittsburgh ("Hospital"), we accepted review to consider, inter alia , Appellees' argument that the trial court erred by not personally observing the demeanor of prospective jurors they challenged for-cause during voir dire .¹ The Superior Court granted Appellees a new trial on this basis. After careful consideration, we conclude Appellees waived their argument for appellate review, and, thus, that the Superior Court erred in considering it. Accordingly, we vacate the judgment of the Superior Court and remand to that tribunal for further proceedings.

I. Facts and Procedural History

Appellee Mendy Trigg is the parent of J.T., who, in 2011, was age 4 and afflicted with craniosynostosis, a medical condition which results when, during an infant's growth and development process, his or her skull closes prematurely and exerts increased pressure on the brain. Trial Court Opinion, 9/7/17, at 2. On May 19, 2011, J.T. underwent surgery at the Hospital to correct this condition. Afterward, J.T. was transferred for post-operative care to one of the Hospital's intensive care units. While recovering there, J.T. fell out of the hospital bed, and, as a result, suffered damage to the surgically repaired cranial area, necessitating immediate ameliorative surgery. Id.

Subsequently, Appellees filed suit against the Hospital in the Allegheny County Court of Common Pleas alleging, inter alia , that the Hospital was negligent in placing J.T. in a regular adult size hospital bed, due to the large spaces between the vertical side rails, which they alleged enabled J.T.'s fall.² The Hospital denied negligence, and, after discovery was completed, the case was listed for trial during the March 2017 civil trial term.

By way of background, in accordance with the Allegheny County Local Rules of Civil Procedure ("A.C.L.R.C.P."), all members of the pool of prospective jurors summoned to serve during a civil trial term are required to fill out a written questionnaire in which they provide, inter alia , general personal information about their age, occupation, family members, prior involvement with any civil or criminal court cases, and relationships they have with individuals employed by the court system, or by insurance or health care professions. See Juror Questionnaire, A.C.L.R.C.P. 220.1. Pursuant to A.C.L.R.C.P. 212.2(b), prior to the commencement of voir dire , counsel for the plaintiff and defendant are both required to prepare pretrial statements in which counsel must include any statements which they wish to give to the entire group of prospective jurors at the outset of voir dire , as well as any proposed additional questions to be asked of individual prospective jurors. As required by A.C.L.R.C.P. 212.2(c), disputes between parties regarding the content of such statements or questions are submitted to the calendar control judge for resolution. Notably, however, although available to rule on objections, neither the calendar control judge, nor the trial judge is ordinarily present during the voir dire process. Rather, the process is normally managed by a court clerk.³

Under Rule 212.2(c), a group of prospective jurors is summoned to the "Jury Assignment Room" on the seventh floor of the City County Building in downtown Pittsburgh.⁴ For medical malpractice cases, the voir dire process proceeds in the manner specified in A.C.L.R.C.P. 220.1(c) and (d).⁵ Under Rule 220.1(c), a court clerk first asks the group of prospective jurors general questions enumerated in this rule regarding whether their service constitutes a hardship; whether they have any social, business, or professional contact with the attorneys in the case; and whether they have a social, business, professional, or employment relationship with any of the parties in the case. After the clerk describes the broad nature of the case, i.e. medical malpractice, and furnishes brief background details about the case, the attorney for the plaintiff and the attorney for the defendant give their respective voir dire statements, indicating what each believes the evidence will show at trial. At the conclusion of those statements, the clerk asks the jurors, as a group, whether they have any knowledge about the case.

The witnesses in the case are then introduced by the attorneys, and the clerk again inquires of the prospective jurors, as a group, whether they have any personal or familial association with those witnesses.

Once this group questioning is complete, pursuant to Rule 220.1(d) the court clerk questions each of the prospective jurors individually regarding: feelings or opinions they have about personal injury and medical malpractice cases generally; whether they have any feelings about medical malpractice cases or the parties in the case they are about to hear which would cause them to favor either the patient or the medical care provider; whether they believe it is improper to sue a medical care provider, even if the provider was careless; whether they believe there is a maximum or minimum amount of money which should be awarded to an injured party; whether they have any feelings or opinions about the effect of medical malpractice suits on the cost and availability of medical services; and whether they believe that the mere fact that a party suffers a complication after receiving medical care indicates that the medical provider must have done something wrong, which entitles the patient or the patient's family to compensation. If one or more of the jurors indicate that they possess such feelings or opinions, then the clerk inquires further of those jurors as to whether those feelings or opinions would affect their judgment, such that they could not render a fair and impartial verdict.

After these standard questions have been asked of each individual juror, Rule 220.1(g) requires that the court clerk ask each individual juror the additional voir dire questions propounded by the parties. Once this process of asking the prospective jurors all of these questions is complete, counsel for either party may ask reasonable follow-up questions to individual jurors to further explore their answers.

In the instant case, 40 prospective jurors were summoned to the Jury Assignment Room on March 17, 2017 for the trial of this case, and voir dire was conducted in accordance with the aforementioned procedures. Of relevance to the case at bar, when prospective juror number 29 was asked whether she had any feelings about medical malpractice cases which would cause her to favor one party over the other, she answered that her sister and brother-in-law were doctors, and her mother-in-law was a nurse. N.T., 3/17/17, at 143. Under follow-up questioning by the court clerk as to whether she could be fair and impartial, she replied "I would like to think I would be fair and impartial, but I mean, it just depends on the facts and everything presented." Id. at 144. The juror elaborated that she could follow the judge's instructions in arriving at a verdict and determining damages and that she could decide the case based on the facts and the law. Id. at 146-47.

Appellees' counsel questioned this juror further:

[Appellees' counsel] : Because of your family members, do you think in a close call you would tend to favor the medical profession?

Prospective Juror No. 29 : Probably, yes.

[Appellees' counsel] : And why is that?

Prospective Juror No. 29 : Just I see what they go through and I know how much they care about their patients and I know they would never do anything wrong.

Obviously I realize there are people out there who aren't my siblings. So obviously they might not be as fair and clear in judgment.

Id. at 148-49.

Prospective juror 29 was subjected to follow-up questioning by the court clerk in which she affirmed that she would be able to listen to the law as presented by the judge, and that her family members' professions would not influence her judgment such that she could not render a fair and impartial verdict. Id. at 149. At the conclusion of voir dire , Appellees' counsel challenged prospective jurors 28, 29, and 37 for cause.⁶ These challenges were noted by the court clerk. Id. at 201.

Under the standard practice in Allegheny County, as noted, a judge is available during voir dire to rule on objections raised by the parties. Starr v. Allegheny General Hospital , 305 Pa.Super. 215, 451 A.2d 499, 501 (1982). In this case, the judge tasked with this responsibility was the calendar control judge — the Honorable Ronald W. Folino. At the conclusion of voir dire , the parties moved to Judge Folino's courtroom, where he asked the objecting party — Appellees — to proceed. N.T., 3/17/17, at 201. Appellees' counsel asked if Judge Folino would like to read the transcripts of the prospective jurors' questioning. Judge Folino replied: "Whatever you would want to do to make your record on your objection, go right ahead." Id. Counsel for Appellees then stated: "I think it would be easier because some of them they talked about their biases and whether or not they could be fair. Some of them — like 28 doesn't believe in lawsuits, and just to read it would probably be quicker." Id. at 201-02. Thus, Judge Folino evaluated the for-cause objections by reading the transcript of the questioning of the prospective jurors by the court clerk and counsel for Appellees and the Hospital. At the conclusion of his evaluation of the transcript, and after hearing arguments from the parties, Judge Folino denied Appellees' motion to strike for-cause prospective jurors 28, 29, and 37. Appellees then used three of their four allotted preemptory challenges to...