Jon Campisi Dec. 21, 2012, 8:55am

The Pennsylvania Supreme Court has ordered a new trial in a medical malpractice and

wrongful death case initiated against a Philadelphia hospital by the widower of a woman who died following heart valve surgery nearly a decade ago.

The case has its roots in the civil action filed by Thomas Bruckshaw on behalf of his late wife, Patricia Bruckshaw, who died in late April 2003 following heart valve surgery at Frankford Hospital in Philadelphia.

The complaint was filed in the spring of 2005 with a jury trial commencing three years later.

At the end of the five-week trial, the jury returned with its verdict, which found that Frankford Hospital and Dr. Randy Metcalf were not negligent.

The jury determined that another defendant, Dr. Brian Priest was negligent, but that his negligence was not the cause of Patricia Bruckshaw’s death.

The plaintiff’s lawyers ended up appealing the verdict after it was discovered that juror irregularities had taken place during the course of the proceedings, the record shows.

Specifically, upon leaving the courtroom for deliberations, two of the jurors were switched by a court officer without the knowledge of the trial judge or the parties, and no such record was developed concerning the switch.

While Juror 12 had left the courtroom with the rest of the jury to begin deliberations, Juror 20 returned with the group two days later when the verdict was ready to be read, according to background information on the case contained within the Supreme Court’s opinion.

Shortly after the delivery of the verdict, Bruckshaw’s lawyer examined the verdict sheet and realized that it was signed by Juror 20 as jury foreperson, and that Juror 20 had been substituted for Juror 12.

On Feb. 28, 2008, the plaintiff’s counsel filed a post-trial motion seeking a new trial, arguing that an error occurred when the two jurors were switched out without any of the parties being notified.

The Philadelphia Common Pleas Court judge overseeing the trial denied the motion, stating that because Juror 20 was “acceptable to all parties” as an alternate, the plaintiff “cannot now complain that [Juror 20] was in the final jury panel,” according to the high court’s opinion.

The trial judge did not offer an explanation on why the court officer made the juror substitution at the last minute, and the trial court confirmed that it was unaware of the identity of the principal jurors and the alternate jurors, and that it was the court officer’s job to know their identity.

On appeal to the Superior Court, all parties agreed that the court officer wrongly switched out the two jurors, but they disagreed about the effect the error had on the jury verdict, with the plaintiff arguing that the replacement should have been grounds for a new trial, and the defendants contending otherwise.

The Superior Court ended up siding with the defense, focusing on the fact that Juror 20 had been accepted as an alternate during jury selection, and ultimately ruling that the seating of Juror 20 during final deliberations was a “harmless error.”

On appeal to the high court, the plaintiff argued that the court officer’s substitution of Juror 20 for Juror 12 without any record support was a reversible error, because it was done without notice to the parties, and furthermore that only the trial judge has the authority to remove a juror.

The defense attorneys conceded that the juror switching was a “mistake,” but one that shouldn’t entitle the plaintiff to any relief because “one competent and qualified juror may participate in deliberations in substitution for any other competent and qualified juror, without disturbing the sanctity of the jury process or ultimate verdict.”

The Supreme Court, in its decision, noted the uniqueness of the case, stating that issues involving jury irregularity most often arise in the criminal, rather than civil, context.

“Although we review with closer scrutiny certain criminal issues where liberty is at risk, the fairness and impartiality of a jury are as scrupulously protected in a civil case as in a criminal case,” the high court wrote.

The justices went on to write that one of the most essential elements of a successful jury trial is jury impartiality, and that courts must go to great lengths to protect the sanctity of juries.

In this case, the high court viewed the fact that the court officer, and not the trial judge, removed a juror as problematic.

“If the court officer had communicated with the trial court at the time he made the juror substitution, the court could have provided notice to the parties, investigated the circumstances, and rendered a determination on the record as to whether Juror 12 was unable to serve,” the opinion reads. “Moreover, as we have explained, the court officer’s responsibilities are properly limited to ‘logistics and purely ministerial functions, such as escorting the jury in and out of the courtroom.’”

The justices also took issue with the fact that Juror 12 was not replaced with the next alternate in line, but rather with the last chosen alternate, and the “process by which the principal jurors and alternate jurors are chosen is crucial to the preservation of the right to an impartial jury.”

“We have no record to assess why Juror 20 was called instead of the next sequential alternate,” the justices wrote. “Choosing an alternate arbitrarily, rather than in order, calls into question the decision to choose one alternate over another.”

In the end, the high court ruled that while granting a new trial is an “extreme remedy,” it is one that is necessary under these unique circumstances.

“Because of the obscure nature of the removal and substitution, without notice to the parties and off the record, we cannot discern the cause of this jury irregularity,” the ruling states. “It is this uncertainty that causes us to impose the remedy of a new trial, to protect the sanctity of the jury from innocent mistakes as well as iniquitous intentions.

“To the extent the Superior Court decision has opened the door to the tampering of the jury system, we emphatically close it.”

The majority opinion was written by Justice Max Baer. He was joined by Justices Thomas Saylor, Debra Todd and Seamus McCaffery.

Chief Justice Ronald Castille filed a concurring opinion in which he agreed with only part of the majority opinion, writing, “I would, however, stress the subtle but important point that, in assessing the ‘error’ or ‘errors’ of the trial judge here, there is error in the juror substitution only insofar as the court officer’s actions here are attributable to the trial court; it is only for that reason that we may properly consider whether the trial court’s errors, in the multiple, ‘require a new trial.’”

Justice J. Michael Eakin penned a concurring and dissenting opinion in which he wrote that, “the majority’s holding that a new trial is appropriate when there is no record provides every incentive to the complaining party to maintain the ‘mischief of uncertainty’ – we should not award a new trial in such circumstances absent a showing of actual prejudice resulting from the substitution.”

Justice Joan Orie Melvin, who is awaiting trial on public corruption charges, and is currently suspended from the bench, did not participate in the decision.

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