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Judges should now preside over jury selection in Allegheny County, PA

Trigg v. Children's Hosp. of Pittsburgh of UPMC, 2018 PA Super 129 2018 WL 2192218 (May 14, 2018)

Allegheny Co., PA.

On May 19, 2010, Jillian Trigg, a 4 ½ year old girl, underwent a 7 hour brain surgery at Children’s Hospital in Pittsburgh. Following the surgery, Jillian was then placed in a hospital bed, which had specific warnings that it was not to be used for pediatric patients or patients under 50 pounds (Jillian weighed 29 pounds).

Nevertheless, Jillian was kept in the bed, and for two days, slowly began to regain consciousness from the surgery. A nurse examined Jillian and saw that Jillian was slowly starting to wake from the anesthesia. Although Jillian wasn’t aware of her surroundings, the nurse kept Jillian in the adult-sized bed.

The nurse then left the room to check on another patient, and Jillian awoke and fell from the bed onto her face and head, resulting in skull fractures, a left frontal epidrual hematoma, displacement of her surgical repair and a frontal lobe brain injury.

Jillian had to be taken back to the operating room, five days after the fall, to evacuate a hematoma and repair the damage that resulted from the fall.

Since falling and fracturing her skull, Jillian has treated with both psychologists and psychiatrists for behavioral problems and outbursts. A neuropsychological evaluation revealed that the executive dysfunction and emotional/behavioral disturbances that Jillian continues to experience have been reported to be associated with frontal lobe damage, which was the part of the brain that Jillian injured when she fell out of bed. She continues to experience outbursts, and behavioral and anger issues at almost 10 years of age.

On behalf of Jillian, a complaint was filed, and then trial was set for March 17, 2017. However, during jury selection, a clerk of the court conducted voir dire (or questioning) of the jury in a jury assignment room. But when challenges for cause to several potential jurors were made, counsel and the clerk had to leave the jury assignment room and proceed to the judge’s courtroom, where argument and rulings were made.

After a weeklong trial, the jury found against Jillian, and we appealed because the jury selection process was not fair because the judge ruled on jury challenges, without knowing what the demeanor or actions of the potential jurors were.

On appeal, the Superior Court agreed that the selection process was unfair and reversed the trial court, holding that it was unfair if a judge did not participate in jury selection. “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.” The court added that the trial judge must observe the juror’s conduct and hears the juror’s answers, and can judge things like hesitation, doubt, and nervousness indicating an unsettled frame of mind, but if the judge doesn’t view and hear that, it is impossible to judge the potential jurors.

“The trial judge acquired none of the wisdom or insight that he could have from noting a juror’s furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language.”

This Opinion was dramatic in that Allegheny County, for at least 40 years, followed a custom whereby judges did not preside over jury selection.