Pennsylvania Record

Sunday, February 16, 2020

Allegheny Co. judges have not been required to preside over jury selection, but Supreme Court can change that

Attorneys & Judges

By Nicholas Malfitano | Dec 18, 2019

Allegheny County Courthouse

PITTSBURGH – A negligence case against the University of Pittsburgh Medical Center’s Children’s Hospital that is currently awaiting a decision from the state Supreme Court might have broad implications for judicial supervision of jury selection.

At issue is Allegheny County's historical practice of not requiring judges to be present for jury selection. The Administrative Office of Pennsylvania Courts (AOPC), which manages court systems statewide, said through its press office that it was not aware of any other counties in the state where judges were absent from the jury selection process.

But the plaintiff claimed that was unfair in Trigg v. Children’s Hospital of Pittsburgh, UPMC, and the Supreme Court heard oral arguments in October. Should the Supreme Court change the way things are done, more judges might be needed in the county to handle the new workload.

“A judge personally witnessing the original voir dire is essential, because it justifies our – and a losing party’s – faith in the trial court’s rulings on challenges for cause,” Superior Court Judge Deborah Kunselman wrote when that court ruled for the plaintiff.

Mendy Trigg sued the hospital in the Allegheny County Court of Common Pleas in February 2013 for negligence, arguing that it failed to provide proper care for her daughter Jillian after neurological surgery, resulting in her falling from a hospital bed and sustaining severe skull injuries with lasting physical and psychological effects.

In June 2017, the jury returned a verdict for the hospital. Trigg then appealed to Superior Court, alleging the trial court erred in denying her motion to strike for cause, when a potential juror allegedly displayed bias and prejudice in favor of medical professionals.

Trigg believed that the jury selection process deprived her and her daughter of their right to a fair trial, when considering Allegheny County’s civil court practice of not assigning a trial judge to preside over the voir dire process.

The plaintiffs argued it resulted in prejudice against them, when they were compelled to use three of their four pre-emptory strikes for cause to remove the challenged jurors, despite the potential jurors’ bias towards health care providers.

For a number of years in Allegheny County, a court clerk has been overseeing civil case jury selection, and a judge typically becomes involved in the process only after the jury panel has been interviewed and if there are any challenges for cause which need to be decided.

The judge rules on the challenges for cause based upon review of either a transcript of the voir dire proceedings, or representations made by the court clerk and counsel for the parties.

In a unanimous decision reached nearly one year later, in May 2018, the Superior Court reversed the Allegheny County Court’s previous order denying a new trial, and vacated the trial court judgment entered upon the verdict, remanding it for both new jury selection and a new trial altogether.

"The Hospital argues that the judge’s absence from ‘the room when the jurors were being questioned…is a red herring,'" the Superior Court wrote.

“Again, the Hospital is mistaken. The knowledge gleaned from in-person observations is ‘impossible to place in the record, [but] must be considered.’ An absentee judge misses the crucial instant when would-be jurors reveal their inmost selves by both words and actions.”

Superior Court Judge Mary Jane Bowes said in a concurring opinion, “The voir dire process is fundamental to the selection of a fair and impartial jury. Challenges for cause are an essential tool for removing individuals who are biased or incapable of putting aside personal feelings and deciding a case on the facts and law presented.”

“I believe a fair and impartial jury is more likely to be achieved when the judge who is ruling on potential disqualification is present at voir dire to observe the potential juror’s demeanor as he or she answers questions. That level of participation then enables the judge to articulate his or her impression of a challenged juror’s ability to be impartial, which is indispensable to this Court in conducting meaningful appellate review.”

Supreme Court of Pennsylvania 3 WAP 2019

Superior Court of Pennsylvania case 1041 WDA 2017

Allegheny County Court of Common Pleas case GD-13-002322

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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Court of Common Pleas of Allegheny CountyUPMC

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