New Rule Requiring Judges To Be In Courtroom For Jury Selection Goes Into Effect

The Pennsylvania Supreme Court's amendment of the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement goes into effect today, April 1, 2025.

This Rule can be found under Pa. R.C.P. 220.3 and can be seen at this LINK.

Here is a LINK to my article on this topic that appeared in the Pennsylvania Lawyer magazine five years ago in a March/April 2020 edition of the magazine.  The article reviews the jurisprudence on the issue back then, which jurisprudence has since led to the current amendment to the Pennsylvania Rules of Civil Procedure regarding voir dire.  The article also reviews the benefits of having a Judge stay on the bench during voir dire, especially for the prospective members of the jury.

Source of image:  Photo by Nothing Ahead on www.pexels.com.

Upcoming Rule Change (Effective April 1, 2025) Mandates that Trial Court Judges Sit in on Jury Selection

No More Leaving Jurors Alone with the Attorneys (unless agreed)

On January 7, 2025, the Pennsylvania Supreme Court approved a change to the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement. This rule is set to take effect on April 1, 2025 and can be found under Pa. R.C.P. 220.3.

A copy of the changes to the Rule can be seen at this LINK.

Source: Article – “Phila. Court System Pushed To Adapt As Justices Greenlight Changes to Pa.’s Civil Jury Selection Rules” By: Aleeza Furman of the Pennsylvania Law Weekly (Jan. 8, 2025).

Right of Attorneys To Strike Jurors in Lackawanna County Civil Trials Potentially Eliminated By Pennsylvania Supreme Court Order

 

The Pennsylvania Supreme Court has granted an Application from the Lackawanna County Court of Common Pleas to suspend or modify Pa.R.C.P. 221 and issued an Order on November 4, 2020 allowing the trial court judges to limit, or even eliminate, any peremptory challenges by parties in civil litigation lawsuits in Lackawanna County.

This Application was apparently submitted due to difficulties in getting jurors to appear in court in response to juror summonses during the Covid-19 pandemic.

In the Order, the Pennsylvania Supreme Court noted that any interested parties could have filed an objection to the same by November 12, 2020, a mere eight (8) days after the Order was entered.  I note that I only became aware of the Order yesterday and share it here now.

Anyone wishing to review this Order may click this LINK.

Commentary:

It appears that litigants proceeding to Trial in Lackawanna County potentially have no say in the makeup of their juries other than to request that some jurors be stricken for cause.  It also appears that there is no remedy available given that any appeals on this particular issue could ultimately be decided by the very Pennsylvania Supreme Court that issued the ill-advised Order allowing this in the first place.

Members of both the Plaintiff's bar and the Defense bar should work together to right this wrong.  Every citizen in Pennsylvania has a state and national Constitutional right to a jury trial and within that right is the right to take an active part in the selection of a fair and impartial jury.

Jury Trial By Zoom Takes Place in Texas -- More to Come?

Here's a LINK to a news article by Nate Raymond entitled "Texas Tries a Pandemic First:  A Jury Trial by Zoom" which was posted on Reuters.com telling the story of what may have been the first jury trial in America by Zoom.  The summary trial, which was non-binding, involved an insurance dispute and took place in Texas.

The article also notes that other jurisdictions in America are moving towards allowing for jury selection to take place remotely if that procedure is agreed to by the parties.

Here's a LINK to another article on the same case providing more interesting details on the proceedings.  That article, entitled "Juror Walks Off to Take a Phone Call as Texas Tests First Jury Trial Via Zoom," appeared on Law.com and was written by Angela Morris

Is this the wave of the future?

Pennsylvania Supreme Court Finds That Issue of Whether It Is Proper For a Trial Court Judge To Leave The Bench During Jury Selection Was Not Preserved

Tort Talkers may recall that we have been waiting for the Pennsylvania Supreme Court to voice its opinion on the propriety of the practice of some trial court judges choosing to leave the bench during jury selection and allowing the litigating attorneys to conduct voir dire on their own.

The Pennsylvania Supreme Court was positioned to answer this question in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  However, in its decision issued yesterday, the Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.  (The Tort Talk Blog post on the Superior Court's decision, along with other posts pertaining to this Trigg decision, can be viewed HERE).

Note however that, in their Concurring Opinions, Justice Donohue and Justice Wecht expressed their misgivings with regards to any practice whereby a trial court judge would leave the bench during the jury selection proceedings.

Justice Wecht also provides some cogent advice in his Concurring Opinion with regards to properly stating objections at appropriate times, creating and preserving objections on the record before trial and at trial, and even the merits of making objections that an attorney knows will be overruled if only to preserve the issue on appeal.

While most of the Majority Opinion focuses on the law of waiver of objections and not so much on the merits of the question of whether it is proper for a trial court judge to leave the bench during voir dire, both Concurring Opinions are worth reading relative to the jury selection question.

To read the Majority Opinion, please click HERE.

To read Justice Donohue's Concurring Opinion, please click HERE.

To read Justice Wecht's Concurring Opinion, please click HERE.


Commentary:  Now that it has been brought to the Supreme Court's decision that there is a practice in some trial courts around the Commonwealth of Pennsylvania where trial judges leave the bench during jury selection, and now that some of the Justices have vocalized their disdain for the practice, it remains to be seen if the Court will now effectuate a change in the Pennsylvania Rules of Civil Procedure to mandate that trial court judges remain on the bench for the entirety of voir dire.

If such changes are to be made, perhaps the Court would also consider mandating, through an amendment to the Rules, that a Court Reporter also be required to transcribe the entirety of voir dire.  Oftentimes, there is pressure on litigants from the trial court to agree to forgo the need for a court reporter to record the voir dire.

There is no question that it is a better practice to have a court reporter take down what is happening in voir dire as it happens as opposed to having no court reporter present and then later summoning a court reporter and attempting to rehash what happened with respect to an objection previously raised during voir dire.

A Three Row Jury Box: Harebrained Idea or a Necessity in a Post-Covid-19 World?

In response to a request for suggestions for ways the Bar and the Bench can navigate the Covid-19 situation, I noted the following.  I still can't tell if it is a harebrained idea or potentially the wave of the future.

One suggestion of mine, with respect to jury trials, was that a third row be added to the jury box, even if that third row is on the outside front of the jury box.  This would enable the 12 jurors and two alternates could spread out more and perhaps sit essentially every other seat.

The third row could at least be on the outside and in front of the box until the jury box wall could me moved outward by a construction contractor so that all 3 rows could be in the box.


In the alternative, perhaps in at least civil cases, the requirement that a jury consist of 12 people and two alternates could be reduced to 6 people and 2 alternates.  In this way, the 6 jurors could spread out in the jury box to sit every other seat so has to engage in continued social distancing in the post-Covid-19 world.

Harebrained ideas or the wave of the future?

What do you think?

ARTICLE: Judgeless Jury Selections: A Troublesome Trend

Here is a LINK to an article of mine that has been published in the March/April 2020 edition of The Pennsylvania Lawyer Magazine entitled "Judgeless Jury Selections:  A Troublesome Trend."

The article analyzes the relatively recent troublesome trend of judges routinely leaving the bench during jury selection after giving a short speech to the jurors about the trial process and then allowing the attorneys to conduct voir dire by themselves.

A number of cases that have gone up on appeal over issues surrounding the fact that the trial judge left the bench for voir dire.  In one such case, the Pennsylvania Superior Court recommended that trial court judges should remain on the bench.  In another case, the Pennsylvania Superior Court noted that it is not required that the trial court judge remain on the bench for voir dire but that, if the judge left the bench during that process, a different standard of review would have to be utilized on appeal to address any issues raised with respect to jury selection. 

This issue is now poised to be decided by the Pennsylvania Supreme Court in the Trigg case, which is currently pending before that Court.  The parties in that case argued the issues presented back on October 19, 2019 and await a decision.

The article reviews a number of reasons in favor of trial court judges remaining on the bench during the course of jury selection in order that certain appellate issues could be avoided as a result.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Law Weekly, for agreeing to publish this piece.

Pennsylvania Superior Court Addresses Standards For a Proper Voir Dire Proceeding

Is a judge required to be on the bench during jury selection?

In the case of Smith v. Cordero, 2019 Pa. Super. 340 (Pa. Super. Nov. 15, 2019) (Op. by McLaughlin, J.), the Superior Court ruled that a trial court erred in denying an estate’s Motion to Strike Two Jurors in a medical malpractice case where the jury selection was conducted by a court clerk and where the jurors had where the jurors had expressed the view that medical malpractice lawsuits had affected the cost and availability of medical services. In light of this ruling, the judgment in the underlying case was vacated.

Interestingly, the Superior Court noted that the previous decision in the case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. 2018), appeal granted, 201 A.3d 145 (Pa. 2019) did not serve to impose a requirement that a judge be present during voir dire, but rather, only merely addressed the applicable appellate standard of review on a jury selection issue where a judge did not participate in the voir dire.

The court did find that the Trigg appellate standard of review applied in this matter. Under that standard of review, the court ruled as stated.

The Superior Court in this Smith case noted that, while the two (2) jurors at issue stated that they could still follow the judge’s instructions and be fair and impartial, the trial court judge was not present to hear the jurors’ tone of voice or to address their demeanor when they provided this information. As such, the Superior Court found that the trial court judge could not know whether the jurors could really be fair and impartial.

Given that the jurors’ answers expressed the “slightest ground of prejudice” required for their dismissal from the jury pool, the appellate court stated that the trial court should have granted the motions to strike the jurors for cause.

As such, while it appears that a trial court judge may not be required to be on the bench at the time of jury selection, the Pennsylvania Superior Court has again strongly suggested that it is the better practice for a judge to be present during voir dire to assess the demeanor and testimony of a potential juror when that juror is first questioned regarding his or her ability to be fair and impartial to with respect to the parties involved.

As noted in the Trigg citation above, this issue may be addressed by the Pennsylvania Supreme Court in the near future.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Pennsylvania Supreme Court To Review Case In Which Question of Presence of Trial Court Judges At Jury Selection is Implicated

Tort Talkers may recall the buzz caused by the Pennsylvania Superior Court's decision in the case of Trigg v. Children's Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), in which that Court noted that a trial court judge should sit in on, and preside over, jury selection, in order to be able to apply a certain standard of review on appeal.

As a status update on this case, it is noted that, in an Order handed down on January 23, 2019, the Pennsylvania Supreme Court recently granted allocatur on the appeal of this case.

In its one-page order granting allocatur, the Supreme Court agreed to hear argument on three issues:

“a. Whether the Superior Court’s decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the ‘palpable error’ abuse of discretion standard of review and properly defer to the trial court?

b. Whether the Superior Court’s holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence?

c. Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?”

Anyone wishing to review the Supreme Court's Order may click this LINK.

 

It remains to be seen to what extent the Pennsylvania Supreme Court will comment on the presence of a trial court judge at jury selection.

Here's a LINK to the Tort Talk post on the Superior Court's decision in the Trigg case.  That post contains a Link to the actual decision by the Pennsylvania Superior Court.  The Superior Court was pretty strong in its suggestion that a trial court judge should be present for jury selection.

What do you think?

The Days of Judges Not Being In Courtroom for Voir Dire May Be Coming to An End

In the case of Trigg v. Children’s Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.  

According to the Opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire.  As such the trial court judge did not have any first hand perception of the juror’s demeanor.  

Accordingly, given that firsthand perception of a juror’s demeanor is the basis for a palpable error deference standard of review, decisions on jury strikes made by judges who do not attend voir dire are not accorded this palpable error deference by the Superior Court.  

The appellate court ruled in this fashion after noting that the alleged demeanor of a perceptive juror cannot be reconstructed after the fact by attorneys attempting to relay the same to the formerly absent trial judge.  

The Superior Court ruled that "[a] judge personally witnessing the original voir dire is essential, because it justifies our -- and the losing party's -- faith in the trial court's rulings on challenges for cause."

In her Concurring Opinion, Judge Bowes also emphasized the need for trial court judges to be in the courtroom to assess a juror's demeanor in responding to voir dire questions as part of the process of properly determining whether a juror should be stricken or not.

The Superior Court also ruled that a juror with relatives who were physicians, and who allegedly showed bias as a result, should have been excused for cause.  

Overall, the Superior Court found reversible error where a party is forced to use a peremptory challenge to exclude a juror who should have been excused for cause.  


Anyone wishing to review a copy of this decision may click this LINK.  Judge Bowes's Concurring Opinion can be viewed HERE.  

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  

UPDATE: In an Order handed down on January 23, 2019, the Pennsylvania Supreme Court granted allocatur to hear the appeal in this case.
 

ONE TO WATCH: Pennsylvania Supreme Court Agrees to Hear Important Voir Dire Issue

The Pennsylvania Supreme Court has agreed to review an important voir dire issue in the case of Shinal v. Toms, No. 897 MAL 2015 (Pa. March 23, 2016).

The Tort Talk blog post on the Superior Court's decision in Shinal can be viewed HERE.

In Shinal, a 2-1 majority of a three-judge  Superior Court panel declined to follow the plurality opinions authored by now Justice Wecht and now Justice Donohue in Cordes which had held that "indirect" relationships (e.g., defendant physician treated juror's spouse or parent) constituted grounds for per se prejudice and disqualification of jurors regardless of their voir dire responses asserting that they could be fair and impartial.

The Tort Talk blog post on the Superior Court's decision in Cordes can be viewed HERE.

Anyone wishing to review the Pennsylvania Supreme Court's Order in Shinal outlining the specific issues to be reviewed may click this LINK.

UPDATE:  The Pennsylvania Supreme Court reversed the Superior Court's decision in this case at 162 A.3d 429 (Pa. 2017).

Judge Minora of Lackawanna County Reviews Jury Selection Issues

In his recent decision in the case of Yaduouga v. Denis, et.al., No. 2009-CIV-53 (C.P. Lacka. Co. Dec. 10, 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed various issues raised by a Plaintiff in a Motion for Post-Trial Relief following a medical malpractice case.

Of note, the Plaintiffs sought a new trial on the grounds that the Plaintiff allegedly suffered presumed prejudice because the Plaintiff was denied the right to individually voir dire jurors who knew the Defendant doctors and/or may have had a situational relationship with one or more of the Defendants.

In his Opinion, Judge Minora noted that, Plaintiff’s counsel inquired whether any of the prospective jurors knew any of the physicians involved, along with follow up questions in terms of whether those prospective jurors who knew a member of the Defendant medical facilities would be able to render a fair and impartial verdict.

According to the Opinion, while counsel for the parties and the court were striking jurors for cause, Plaintiff’s counsel asked the court to be permitted to individually voir dire prospective jurors, specifically the ones who indicated that they knew a member of one of the Defendant medical facilities. In doing so, Plaintiff’s counsel cited the case of Cordes v. Associates of Internal Medicine, 87 A.3d 829, appeal denied 102 A.3d 986 (Pa. 2014). At trial, the court rejected the Plaintiff’s request and a jury was eventually chosen.

The Plaintiff later raised this issue again in post-trial motions, which the court again denied. In so ruling, the court noted that a party’s right to impartial jury does not entitle that party to a jury of his choice. See Op. at 7 citing Com. v. Carson, 913 A.2d 220, 235 (Pa. 2006). Ultimately, the decision on whether or not to disqualify a juror was found to be within the trial court’s sound discretion. Id. [citation omitted].

After reviewing the test for determining whether a prospective juror should be disqualified, the court found that there were no improprieties with regards to the selection of the jury in this matter.

Judge Minora noted that a review of the record indicated that the prospective jurors at issue indicated that they did not know the named Defendant doctors but only indicated that they knew or that they or a family member may have been treated by other non-party members of the Defendant medical practice. Those prospective jurors were questioned on whether or not they could be fair and impartial and indicated that they could.

Judge Minora emphasized that none of the impaneled jurors knew any of the Defendant doctors personally, had worked with them, had been treated by them as patients, or were in any employer-employee relationship with those doctors. As such, the court found that the Plaintiff had failed to establish that any of the jurors at issue had any direct close familial, financial or situational relationship with any of the Defendants. Accordingly, the court again rejected the Plaintiff’s claim of a presumptive prejudice by virtual of possible indirect relationships between the jurors and the Defendants.

Judge Minora also noted that there was no civil mandate or rule of procedure otherwise requiring the court to allow individual voir dire in a medical malpractice case. 

Judge Minora ended his discussion of this issue by reiterating that, while all parties to a trial are entitled to a fair, objective and impartial jury of their peers, no party is entitled to a jury of their own choosing.

Anyone desiring a copy of this decision may click this LINK.

Important Voir Dire Issues Revisited by Pennsylvania Superior Court

Jury selection issues were again reviewed by the Pennsylvania Appellate Courts in the case of Shinal v. Toms, No. 1714 MDA 2014, 2015 Pa. Super. 178 (Pa. Super. Aug. 25, 2015 Allen, J., Lazarus, J., and Platt, J.)(Opinion by Platt, J.). According to the Court’s Opinion in this medical malpractice case, the Plaintiffs filed an appeal following a defense verdict of no liability on the issue of informed consent. Among the challenges on appeal was the Plaintiff’s challenge to the denial of their Motion to Strike certain prospective jurors for cause. 

The Opinion noted that, at an initial trial in February of 2013, the trial court and the parties attempted unsuccessfully to impanel a jury. According to the Opinion, the trial court was unable to impanel a jury as too many of the prospective jurors were dismissed because they were either employed or treated or insured by one of the Defendant medical entities (Geisinger). As such, the trial was continued to a later date.

In the interim, the Geisinger Defendants were dismissed by way of summary judgment, and a Dr. Toms was the only remaining Defendant when the case came back to trial for a second round of jury selection.

According to Superior Court’s Opinion in this Shinal case, the trial court had endeavored to implement what the trial court perceived to the principles enunciated in the case of Cordes v. Assocs. of Internal Medicine, 87 A.3d 829, 833-34 (Pa. Super. 2014) (en banc) (plurality opinion), appeal denied, 102 A.3d 986 (Pa. 2014).

In this regard, during voir dire, the Plaintiffs were permitted to question each prospective juror whether they were an employee of any Geisinger entity, or if a relative was employed by a Geisinger entity, and whether or not those persons (the jurors) perceived themselves to be employed by the same company as the remaining Defendant, Dr. Toms, who was affiliated with Geisinger. If the jurors responded affirmatively, the jurors were asked if they believed or perceived that a verdict against Dr. Toms would have a negative financial impact on their employer.

The Superior Court also permitted the Plaintiff to ask the jurors if they, or a relative, had ever been treated as a patient at Geisinger and, if so, whether they received a favorable result with that treatment.

The Superior Court also noted that the trial court allowed the jurors to be questioned overall on whether they could render a fair and impartial verdict in the case presented. According to the Opinion, all of the prospect jurors indicated they could be fair and impartial.

On appeal, the Plaintiff raised issued with respect to four (4) prospective jurors. In the Shinal Opinion, the Pennsylvania Superior Court reviewed the issues raised with respect to each of these jurors, all of whom had previously worked, or continued to work, for a Geisinger entity in one capacity or other.

The Shinal court noted that none of these jurors at issue knew the Defendant, Dr. Toms, personally, had worked with him, or had been treated by him.

The trial court had denied Plaintiff’s Motion to Dismiss these four (4) jurors. The Plaintiff ended up using four (4) of their peremptories challenges and excluded those prospective jurors from the jury.

On appeal, the Plaintiffs argued, in part, among several issues, that the trial court erred in not striking the jurors at issue for cause, thereby requiring the Plaintiff utilize their peremptory challenges which they could have arguably used to strike other jurors.

The Shinal court disagreed with the Plaintiff’s contentions that the trial court had erred in this regard. In so ruling, the Shinal court set forth the well-settled standard of review of a court’s decision not to strike a potential juror for cause. This can be reviewed at page 13-15 of the Superior Court’s Opinion which can be read at the link below.

Concisely, the Superior Court in Shinal found no evidence to support a claim that any direct relationship existed between the Defendant, Dr. Toms, and the prospective jurors.

The court also rejected the Plaintiff’s contention that the prospective jurors should have been stricken because of an indirect relationship with the Defendant, Dr. Toms through the jurors’ own relationship with the Geisinger entity.

In ruling in this regard, the Pennsylvania Superior Court noted that both the Plaintiff and the trial court relied heavily upon the Cordes Opinion. However, the court in Shinal stated that "Cordes is a plurality opinion" and that "[a] plurality opinion is not binding precedent." See Shinal at p. 15.

Overall, the Shinal court found that its independent review of the record confirmed that none of the challenged prospective jurors had such a close relationship with participants in the litigation on which prejudice should have been presumed. The Shinal court rejected any reliance on Cordes in an attempt to expand the range of relationships from which prejudice must be presumed in the context of jury selection.

The Shinal court reiterated the principle of law that it is the trial court judge who is in the best position to assess the credibility of a juror and determine if that juror is able to render a fair and impartial verdict.

Accordingly, the Shinal court rejected this portion of the Plaintiff’s appeal from the trial as the appellate court found no evidence that any of the prospective jurors had any direct close relationship with any of the parties or that they should have been stricken for cause as being presumptively prejudiced, biased, or impartial.


Anyone wishing to review this decision, may click this LINK.


UPDATE:  The Pennsylvania Supreme Court reversed the Superior Court's decision in this case at 162 A.3d 429 (Pa. 2017).

Judge Minora of Lackawanna County Rules on Jury Selection Issues.

In his recent decision on post-trial motions in the medical malpractice case of Carlitz v. Delta Medix, No. 2011-CV-1458 (C.P. Lacka. Co. July 15, 2015, Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed, in part, the issue of whether the court should have stricken prospective jurors for cause based upon their situation on financial relationships with a Defendant medical provider and a Defendant doctor.

The court noted that, in support of their challenge for cause during jury selection, Plaintiff cited to the case of Cordes v. Associates of Internal Medicine, 87 A.3d 829, appeal denied, 102 A.3d 986 (Pa. 2014). The Plaintiffs otherwise objected to the fact that they were required to use their peremptory challenges on certain perspective jurors who had treated with a Defendant medical provider and/or the Defendant's expert witness doctor, or who had been employed by one of the Defendants. According to the opinion, overall, the Plaintiffs had objections to at least four (4) of the jurors who were empaneled.

Judge Carmen D. Minora
Lackawanna County

Judge Minora reviewed the law pertaining to the granting or denying of challenges to a prospective juror and applied that law to the case before him.

Although the court found that it need not rule on this jury issue because it already determined that the Plaintiffs were entitled to a new trial based upon other statements made by defense counsel during the course of the trial, Judge Minora nevertheless concluded that the Plaintiffs’ contention that certain prospective jurors should have been removed for cause is without merit (raising a question as to whether this portion of the decision amounts to dicta -- the decision is instructive in any event). Rather, the court believed that the Plaintiffs attempted to use cause challenges where peremptory challenges were required.

Judge Minora also emphasized that, at issue in this matter, where alleged relationships between the jurors and professional corporation Defendants as opposed to party Defendant positions, as was the case in the Cordes matter. Overall, Judge Minora stated that there was no case law holding that a situation or relationship warranting removal for cause arises from the fact that a prospective juror, or his or her relative, is a patient of a professional corporation Defendant or a non-party expert witness, or is employed by a non-party expert witness or his practice group.

Judge Minora did indicate that if the prospective jurors were indeed employees of a corporate Defendant or patients of a Defendant’s position, the court would have found merit in the Plaintiffs’ argument. However, those facts are not before the court. As such, the court found that there was no error of any kind during the jury selection process.

Judge Minora ended his opinion by stating that "All parties are entitled to a fair, objective and impartial jury of their peers, but not to a jury of their choosing." [citations omitted].

A copy of Judge Minora's Opinion, which includes his analysis in support of a granting of a new trial on other grounds, can be viewed HERE.

New Required Jury Instructions for Prospective and Selected Jurors

 

Here is a LINK to new required Jury Instructions issued by the Pennsylvania Supreme Court for "Prospective" and "Selected" jurors.

The amendments place emphasis on advising such jurors of the prohibitions against using computer or mobile devices in a manner that may violate the instructions of the court during trial, including instructions on not discussing or researching the case presented.

Motion to Strike Potential Juror Represented by Law Firm Involved Denied

In the non-precedential Pennsylvania Superior Court case of DeFrancesco v. Lehigh Valley Health Network, No. 742 EDA 2014 (Pa. Super.  May 26, 2015 Panella, Olson, Fitzgerald, J.J.) (slip op. by Fitzgerald, J.), the appellate court affirmed a trial court’s decision not to strike a juror from a medical malpractice case during voir dire even though the juror was a client of the same firm representing defendants in the case.

According to the Opinion, the juror had an estate that was being handled by a different attorney in the defendant hospital’s attorney’s office.  It was noted that the two attorneys worked in different satellite offices of the same firm and that the juror had never interacted with the defense attorney that was involved in this matter.

It was also emphasized that the potential juror advised the court that, despite the juror’s association with the defense law firm, that the juror would not be biased in favor of the defense attorney handling this trial.

The Superior Court affirmed the trial court’s denial of the plaintiff’s motion to strike on the basis that the juror had a potential for bias given the juror’s attorney-client relationship with the defense firm.

The plaintiffs insisted that the juror had the potential for partiality, but the trial court ultimately denied their motion to strike.

In affirming the trial court’s decision, the Superior Court noted that this was not a case where the plaintiff had already exhausted its allowable peremptory challenges. 

In this matter, the plaintiff did use one of its peremptory challenges to strike the juror in question.  The plaintiff’s contention that it should not have been required to do so under the circumstances presented was rejected.

Anyone wishing to review this decision of the court may click this LINK

Source: “Panel Upholds Decision Not to Strike Juror With Ties to Firm” by P.J. D’Annunzio of The Legal Intelligencer (June 3, 2015).

The 2014 Tort Talk Top Ten

THE 2014 TORT TALK TOP TEN

As another year winds down to an end, here's a look back at some of the top cases and trends of the year in the 2012 TORT TALK TOP 10:

10.  Prospect for Medicare Set-Asides in Third Party Lawsuits Dead

According to a press release from The American Association for Justice, the Centers for Medicare & Medicaid Services (CMS) withdrew its proposed rule in tort actions on future medicals called the “Medicare Secondary Payer and Future Medicals” rule.  According to the AAJ, this means that, currently, there is no future medicals rule pending from Medicare and the prospect of having to do Medicare Set-Asides in third party liability matters is now dead.

9.  Doctrine of Forum Non Conveniens

In Lee v. Bower Lewis Thrower Architects, 2014 Pa.Super. 240 (Pa. Super. Oct. 22, 2014 Gantman, P.J., Bender, P.J.E., and Platt, J.)(Op. by Gantman, P.J.), the Pennsylvania Superior Court upheld a Philadelphia Court of Common Pleas judge’s ruling granting a Defendant’s Motion to Transfer under the Doctrine of Forum Non Conveniens.   This case represents one of the first appellate decisions applying the Pennsylvania Supreme Court’s recent Forum Non Conveniens ruling in the case of Bractic v. Rubendall.  

Anyone wishing to review the Pennsylvania Superior Court's decision in the Lee case, may click this LINK. 

8.  Right to Assign Bad Faith Claim Upheld

In Allstate Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014)(Op. by Saylor, J.)(Castille, C.J, Dissenting Without Opinion), the Pennsylvania Supreme Court ruled that a third party defendant tortfeasor hit with an excess verdict in a trial on personal injuries arising out of a motor vehicle accident may assign to the plaintiff his potential rights to sue his own automobile liability insurance carrier for a bad faith refusal to settle the case prior to trial.

The Supreme Court's decision may viewed at this LINK.

7.  Exercise of Federal Court Jurisdiction Over Insurance Coverage Actions Clarified

The case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), has been touted as the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.  While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a general proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court.  Rather, the Third Circuit Court stated that there is no bright line rule permitting the district courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  The Third Circuit clarified the factors to be considered in determining whether or not to exercise jurisdiction.  As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage is anticipated. 

Anyone wishing to review the Reifer Opinion by the Third Circuit Court of Appeals may click this LINK.

6.  Discovery of Attorney-Expert Opinions is Barred

In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014).  This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.

On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective.  These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts,  need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

5.   A Short-handed Pennsylvania Supreme Court – Again.

Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again.  Time to consider a switch to merit selection process where the nominees are fully vetted in the same rigorous manner as Federal Court Judicial nominees are subjected to?

 

4.  Much Needed (Not Appellate) Guidance on Proper Jury Instructions for Post-Koken Cases  

In Moritz v. Horace Mann Ins. Co.,  No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed cases from within and without Pennsylvania in an effort to formulate even-handed jury instructions designed to inform the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this particular matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims and defenses presented as opposed to the type of parties involved.  

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may click this LINK.

3.  Statutory Caps in Cases Against Governmental Agencies Upheld

 In Zauflik v. Pennsbury School District, 1 MAP 2014 (Pa. Nov. 19, 2014 ),  the Pennsylvania Supreme Court upheld the constitutionality of the statutory cap of $500,000 protecting local governmental agencies in personal injury tort claims.

The Court's Opinion in Zauflik can be viewed HERE. 

Justice Baer's Concurring Opinion can be viewed HERE.

2.  Right to a Fair and Impartial Jury Upheld 

In Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), the Pennsylvania Superior Court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that 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.   The Opinions issued by the Cordes court 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.   As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial.  As noted above, the Pennsylvania Supreme Court curiously denied allocatur.

1.  A New Analysis for Pennsylvania Products Liability Cases Adopted

In Tincher v. Omega Flex, Inc.,  the Pennsylvania Supreme Court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis.  The import of the Court’s lengthy Opinion is still being debated and is likely to lead to ongoing litigation on the proper analysis to be utilized in products cases in the years to come.

Concisely, the new strict products liability analysis adopted by the Pennsylvania Supreme Court was enunciated, as follows:

"...we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a  preponderance of the evidence."

The Court went on to emphasize that the issue of whether or not a product is in a defective condition was a question of fact to be considered by a jury and could only be decided by a court on a motion for summary judgment if the court found that no reasonable minds on a jury could differ on a conclusion that a product was not defective.

To review a copy of the Pennsylvania Supreme Court's lengthy decision in Tincher v. Omega Flex, click HERE.

In his Dissenting and Concurring Opinion, which can be viewed HERE, Justice Saylor noted, in part, that he favored the adoption of the Restatement (Third) of Torts analysis for products cases.

HONORABLE MENTIONS:

-Still awaiting appellate guidance on wide variety of Post-Koken issues

-Still awaiting appellate guidance on Facebook discovery issues

-Still awaiting appellate guidance on Cellphone Use in auto accident cases (punitive damages)

-Hudak-Bisset v. County of Lackawanna et al., No. 2007-CV-2401 (C.P. Lacka. Co. March 19, 2014 Minora, J.): recognizes cause of action for recovery of damages for a suicide allegedly secondary to accident related injuries and chronic pain caused by the negligence of a tortfeasor defendant in a car accident case.

-Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.



 

NOTE:  Portions of this blog post are copied from other previous Tort Talk blog post as well as my November 25, 2014 Pennsylvania Law Weekly Article entitled "THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME: A Review of Important Civil Litigation Cases and Trends in 2014"

Year-End Pennsylvania Civil Litigation Reveiw Article

The below article of mine is an updated version of a year-end review article (with its original title) that was published in the November 25, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from the Publisher, American Law Media:

THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME:

A Review of Important Civil Litigation Cases and Trends in 2014

By

Daniel E. Cummins

 

As another year of Pennsylvania jurisprudence comes to an end, a look back reveals a number of the same issues and trends that have dominated the headlines in recent years.  As some say, the more things change, the more they remain the same.

 Right to a Fair Jury

Among the more notable cases from the past year is the Pennsylvania Superior Court’s decision in the  medical malpractice case of Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), in which that court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that 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.  

 

The Opinions issued by the Cordes court 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.   As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial.  As noted above, the Pennsylvania Supreme Court curiously denied allocatur.

Jury Instructions in Post-Koken Matters

Continuing on the topic of jury issues, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued the first detailed opinion in Pennsylvania outlining the type of jury instructions he would provide to a jury in a Post-Koken automobile accident matter involving an insurance company defendant.

 

In the case of Moritz v. Horace Mann Ins. Co.,  No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Nealon reviewed cases from within and without Pennsylvania to formulate even-handed jury instructions informing the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims presented as opposed to the type of parties involved.

Expert Discovery

In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014).  This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.

 

On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective.  These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts,  need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

 Delay Damages

In a case of first impression, the Pennsylvania Superior Court ruled in Roth v. Ross and Erie Insurance Group, 85 A.2d 590 (Pa. Super. Feb. 7, 2014), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages after a verdict.

 

The Superior Court ruled that the wording of Rule 238 was clear and unambiguous in requiring the addition of delay damages to the verdict in all civil cases where a plaintiff seeks monetary relief for bodily injury.  Future medical expenses were, "by definition," part of the monetary relief for bodily injuries caused by the subject accident and, as such, should be included in the delay damages calculation.

 

Federal Court Jurisdiction Over Insurance Coverage Questions

The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog has described the case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), as being the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.

While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court. 

 

Rather, the Third Circuit Court stated that there is no bright line rule permitting the district courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  In this Reifer Opinion, the Third Circuit went on to clarify the factors that a district court should consider in determining whether or not to exercise jurisdiction.  As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage can be anticipated. 

Another Short-Handed High Court

Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again, which is an obscene situation in more ways than one.

Hopefully, the unfortunate recurrence of this situation of a short-handed court may serve as an impetus for the Court to adopt a plan whereby, whenever the Court has less than seven Justices, a randomly selected Commonwealth Court Judge could be selected to sit on an appeal of a Superior Court decision before the Supreme Court, and vice versa. 

 

Perhaps the time has also come to revisit the notion of a merit selection of Pennsylvania state court judges similar to the method utilized to select federal court judges.

 

In the meantime, Chief Justice Castille and the Supreme Court are going out with a bang with the Chief Justice’s important opinions issued in November in the case of Tincher v. Omega Flex, Inc., in which the court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis, and in the case of Zauflik v. Pennsbury School District, in which the Court upheld the constitutionality of the statutory caps protecting local governmental agencies in personal injury tort claims.

Cell Phone Use

The year 2014 brought forth a number of decisions on the viability of a punitive damages claim based upon a distracted  defendant driver’s use of a cell phone at the time of an accident.  The decisions show that this issue will be decided on a case-by-case basis.

 

In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.  The court reviewed essentially ruled that allegations of the mere use of a cell phone while driving, without more, does not amount to factual support sufficient to sustain claims of recklessness or for punitive damages. 

 

In contrast, in a recent Luzerne County decision in the case of Gugliotti v. O'Rourke, No. 2012-CV-15133 (C.P. Luzerne Co. 2014 Burke, P.J.), President Judge Thomas F. Burke, Jr., by Order only, denied a defendant's preliminary objections and allowed the plaintiff’s punitive damages claim to proceed in a cell phone/auto accident case.

 

According to the briefs filed in the matter, the police report indicated that the defendant driver allegedly admitted that he rear-ended the plaintiff's car while in the process of attempting to answer not one but two ringing cell phones in his possession.

 

Also, according to a June 13, 2014 article by Zack Needles in The Legal Intelligencer entitled "Judge OKs Punitives Claim for Cellphone Use in  Crash Case," Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted an unopposed motion to amend a Complaint filed by a plaintiff in the case of Simmons v. Lantry to add punitive damages claims in a case involving a tractor trailer driver who was allegedly distracted by his cell phone use at the time of an accident.

Collateral Estoppel Against UIM Claim After Third Party Resolution

 Another hot issue in the past year that troubled litigators was the repeated application of  the doctrine of collateral estoppel by Pennsylvania courts preclude a plaintiff from proceeding on additional claims arising out of the same accident.

 

In his January 15, 2014 Opinion in the case of Borrelli v. AIU North Americam, Inc., No. 0430, Control No. 13110820 (C.P. Phila. Jan. 15, 2014 Bernstein, J.),  Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted a UIM carrier's motion for summary judgment based upon the collateral estoppel doctrine.  In this case, the plaintiff proceeded through an agreed upon high/low arbitration with the tortfeasor defendant first and the arbitrator entered an award that was less than the tortfeasor’s liability limits.

 

Similarly, in USAA v. Hudson, 101 Del. 154 (C.P. Del. Co. Feb. 21, 2014), the Delaware County Court of Common Pleas ruled that the collateral estoppel doctrine precluded a subsequent UIM claim for the same accident when the same issue was previously litigated and an award was entered for less than the tortfeasor’s liability limits.

 

In his decision in the Federal District Court for the Eastern District of Pennsylvania case of Harvey v. Liberty Mut. Ins. Group, 8 F. Supp. 3d 666 (E.D. Pa. March 26, 2014 Joyner, J.), Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third party side where the agreed upon high parameter was below the third party liability limits and where the arbitration award was entered below that high parameter.

 

In her decision in the Post-Koken case of Gallagher v. Ohio Casualty Ins. Co., No. 13-0168 (E.D. Pa. April 9, 2014), Judge Nitza I. Quinones Alejandro of the Federal District Court for the Eastern District went even further and found that, while a non-binding ADR result did not amount to collateral estoppel, the first settlement nevertheless served to preclude a follow-up UIM claim for the same accident.

 

In a slightly different collateral estoppel context raised in the case of McConnell v. Delprincipe, PICS Case No. 14-1674 (C.P. Lawrence Co. Oct. 2, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the judicial findings reached in a Plaintiff’s previous workers’ compensation case arising out of the same accident precluded the re-litigation of identical issues in a collateral civil lawsuit.   More specifically, the plaintiff was precluded from seeking a recovery for additional injuries in a lawsuit where it was judicially determined in the prior worker’s compensation matter arising out of the same accident that he only sustained cervical spine injuries.

 A Look Ahead

Several important decisions are anticipated in the year ahead.  First, litigators await a decision from the Pennsylvania Supreme Court in the criminal court case of Commonweath v. Koch on the proper authentication and admissibility of text messages may serve as the seminal case on the admissibility of other forms of digital and/or social media evidence.

 

The auto law bar is also anxiously awaiting the Pennsylvania Supreme Court’s decision in the case of  Allstate Prop. and Cas. Co. v. Wolfe, No. 23 MM 2014 (Pa. April 24, 2014) on the issue of whether “[u]nder Pennsylvania law, can an insured tortfeasor assign his or her bad faith claim against an insurer, under 42 Pa.C.S. § 8371, to an injured third party?"

 

These anticipated decisions, as well as expected lower court decisions in Post-Koken auto accident matters and social media discovery issues should keep matters interesting for litigators in the year ahead.

 

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.