There Are No Hotels in Smethport, Pennsylvania

There are no hotels in Smethport, Pennsylvania. I learned this when trying the matter of Keene v. Kirsch, et al. to a defense verdict in McKean County for eight days in February 2016. Plaintiff’s counsel has sought to challenge this verdict on the basis of issues that arose from jury selection, a trend that seems to be on the rise with plaintiffs’ counsel statewide.

This medical malpractice case involved a claim that our client, Dr. Kirsch, negligently and in violation of hospital policy treated his patient’s ST wave elevation myocardial infarction (STEMI heart attack) with thrombolytic (i.e., clot-busting) therapy rather than life-flighting her to a nearby hospital with a cath lab. The patient’s heart attack resolved, but she later developed a massive brain bleed and permanent brain damage from the thrombolytic therapy.

At trial, every possible ruling was in favor of the plaintiff, so we felt good about our ability to hold the 10-2 verdict. However, the plaintiff filed a motion for post-trial relief that included affidavits from the two dissenting jurors, who claimed several majority jurors revealed during deliberations that they either knew Dr. Kirsch or had family members who were previously patients but who did not disclose that fact in voir dire.

Our initial legal challenge was based primarily on two things. First, jury selection was not on the record, so there was no way to know what the jurors were asked or what their responses were. (It was discovered during the post-trial motion process that the trial court may not have asked the jury venire if they knew the defendant, based on the court’s “Rough Notes” for jury selection provided to counsel the night before jury selection, an omission neither party caught.) Second, we argued that the no-impeachment rule barred the court from considering discussions among jurors during deliberations. We later argued that even if the affidavits were true, about the family-patient relationships of two jurors, those relationships did not rise to the level of requiring a new trial under the dictates of Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa.Super. 2014). The trial court rejected all three arguments and, over our strenuous objection, conducted a post-verdict evidentiary hearing where the two dissenting jurors and the two jurors whose family members allegedly had been patients of the defendant testified. One juror said his mother had been Dr. Kirsch’s patient for a few years before her death four years earlier, but the juror did not remember that question being asked during voir dire. The other juror said his brother had treated with one of Dr. Kirsch’s partners in the past. Following the evidentiary hearing and briefing, the trial court granted the plaintiff a new trial on the basis of the two jurors whose family members had been patients of Dr. Kirsch or his partner.

We appealed Judge Cleland’s decision to the Pennsylvania Superior Court, and thanks to outstanding briefing and argument by Terry Sachs of our appellate group, the Superior Court, in a non-precedential memorandum opinion issued on February 12, 2018, overturned Judge Cleland’s decision and remanded for disposition of the remainder of the plaintiff’s motion for post-trial relief. The Superior Court held that the no-impeachment rule was not applicable because the issue concerned jury selection, not why the jury reached its decision. However, the Superior Court agreed with us that the claimed relationships between the two jurors’ family members and Dr. Kirsch were not close enough to constitute prejudice to the plaintiff. The plaintiff’s application for allocatur to the Pennsylvania Supreme Court was later denied.

On remand, the trial court again granted the plaintiff a new trial, this time based on the court’s presumed failure to ask the jury venire if they knew the defendant, even though the plaintiff waived this issue. We have again appealed this decision to the Superior Court.

One of the key take-aways from this case is that the plaintiff’s bar statewide are seemingly focusing on jury selection issues. Defense counsel should be prepared for the myriad of ssues that may arise during jury selection. In addition to Cordes and Keene v. Kirsch, Weart v. Surgical Associates, 2013 Pa. Super. Unpub. LEXIS 1037 (Pa.Super. Jan. 31, 2013) dealt with a jury bias issue that was revealed during deliberations: a juror failed to reveal during jury selection that he had been a patient of the defendant physician. More recently, the Pennsylvania Superior Court ruled that a judge must preside over jury selection, Trigg v. Children’s Hospital, 187 A.3d 1013 (Pa.Super. 2018), undoing decades of accepted practice in Allegheny County where jury selection is conducted by counsel and a court employee, with a judge only being involved if there is a challenge of some sort. Trigg is currently being reviewed by the Pennsylvania Supreme Court. See, Trigg v. Children’s Hospital, 2019 Pa. LEXIS 400 (Pa., Jan. 23, 2019).

*Tony is a shareholder in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.1193 or ajwilliott@mdwcg.com.

^{Defense Digest, Vol. 25, No. 2, June 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}