PA Supreme Court Holds that Voir Dire Challenge Waived
Civil Litigation Update, a publication of the Pennsylvania Bar Association
Spring 2020
In Trigg v. Children’s Hosp. of Pittsburgh, 229 A.3d 260 (Pa. 2020) (Opinion by Todd, J.), the Supreme Court of Pennsylvania held that the trial court’s failure to personally observe the demeanor of prospective jurors during voir dire was waived.
Mendy Trigg filed a negligence suit against the Children’s Hospital of Pittsburgh (CHOP) for injuries to her child sustained while in CHOP’s care. The case proceeded to a trial by jury. During voir dire, Trigg challenged three prospective jurors for cause and raised her objections to the calendar control judge. Per local practice, the calendar control judge was not present for the initial questioning of the prospective jurors. Trigg requested the calendar control judge to read the transcripts of the prospective jurors questioning, but she did not specifically request to conduct further questioning before the calendar control judge. The judge denied Trigg’s challenges and Trigg exercised three preemptory challenges to exclude the jurors. The case proceeded to trial and the jury returned a verdict in CHOP’s favor. Trigg filed a post-trial motion alleging that the trial court 0erred in denying her challenge to the prospective jurors because the judge had no opportunity to observe the jurors’ demeanor. The trial court denied the motion, reasoning that Trigg never requested the judge to observe the prospective jurors’ demeanor and simply requested the judge to review the transcripts of their testimony. Trigg appealed to the Superior Court, which vacated the trial court’s ruling. CHOP then appealed to the Supreme Court, which held that Trigg waived her argument. The court reasoned that Trigg failed to object in pretrial motions or during voir dire, and that Trigg’s attempt to raise the issue for the first time in post-trial motions failed to preserve the issue for appellate review. Accordingly, the court vacated the Superior Court’s order, but remanded to the Superior Court for analysis of other issues.
As courts and litigants continue to adjust to new trial procedures in the wake of Covid-19, a trial judge’s ability to view the demeanor of prospective jurors is likely to be impaired and litigants should be mindful of the need to preserve the issue for appellate review.
