In its recent decision in the medical malpractice
case of Cordes v. Associates of Internal
Medicine, ____ A.3d _____, No. 1737 WDA 2011, 2014 (Pa. Super. 52) (Pa.
Super. March 12, 2014) (en banc), the Pennsylvania Superior Court addressed the
issue of the allegedly improper denial of the Plaintiff’s strikes for cause
during jury selection after the seating of potentially prejudiced jurors
following the exhaustion of a party’s peremptory challenges.
According to the Opinion, the jury that resulted in the Cordes case included a husband of a
patient of the Defendant doctor, the daughter of a patient of the Defendant
doctor, and an employee of the parent medical corporation whose subsidiary
employed the Defendant doctor.
In Cordes, Judge
David N. Wecht, issued a 35 page Opinion in support of a reversal and remand for a new trial. Judge Wecht was joined by Judge John T. Bender,
with Judge Mary Jane Bowes and President Judge Susan P. Gantman concurring in
the result.
A second 16 page Opinion in support of reversal was authored
by Judge Christine L. Donahue, which was joined in by President Judge Susan P. Gantman
and Judge Paula F. Ott, with Judge Mary Jane Bowes again concurring in the
result. A third Opinion in this matter
was a 36 page dissenting Opinion (in support of affirmance and denial of a new
trial by Judge Judith F. Olson, which Opinion was joined by Judge Cheryl L.
Allen.
In his Opinion, Judge Wecht noted that the goal of jury
selection was to end up with a jury with “a clean slate and an open mind.” Wecht, J. Slip Opinion in Support of
Reversal at p. 31.
The Opinions issued in Cordes
all essentially agree with the notion that an important goal of jury selection
is ensure not only a jury that is impartial in fact, but one that also appears to be free from the taint of
partiality to a disinterested observer.
In the end, it was held that the trial court erred in
refusing, after the exhaustion of a party’s peremptory challenges, to strike
for cause those jurors who had a close relationship to a Defendant doctor
and/or were employed by the same company as that doctor despite those jurors’
assurances of impartiality.
The Superior Court Judges in favor of reversal were
influenced by the fact that the mere presence of these types of jurors on the
jury created an appearance of partiality or biased that should be avoided at
all costs.
As such, the defense verdict in this medical malpractice
case was vacated and the case was remanded for a new trial.
According to the dissenting Opinion, indirect or extenuated relationships
between prospective jurors and party to a case are, in and of themselves,
insufficient to raise a presumption of prejudice. The dissent felt that, in the absence of a
disqualifying direct relationship with a party participant, a juror’s exclusion
from service should remain within the discretionary authority of the trial
court, whose decisions could be reviewed on appeal under an abuse of discretion
standard.
Anyone wishing to review Judge Wecht's Opinion in favor of Reversal may click
HERE.
Judge Donohue's Opinion in favor of Reversal can be viewed
HERE.
Judge Olsen's Dissenting Opinion can be viewed
HERE.
To review a thorough article written by Attorney Thomas J. Foley, III of the FOLEY LAW FIRM in Scranton, PA, analyzing the
Cordes decision, click the below link [reference to the article here on Tort Talk should not be deemed to suggest an endorsement by Tort Talk or Dan Cummins of Attorney Foley's article or his opinions contained therein]:
Thomas J. Foley III. 2014. "PENNSYLVANIANS' RIGHT TO "TRIAL BY JURY...
IN
PERIL?" Available at: http://works.bepress.com/thomas_foley/1
