'Med Mal Crisis' Voir Dire Queries Permitted

Pennsylvania - New Jersey - New York - Nationwide

By Asher Hawkins
January 10, 2007

The state Supreme Court has declined to entertain the appeal of an en banc Superior Court panel's 6-3 decision that lawyers should be allowed to voir dire prospective jurors as to their knowledge of the so-called medical malpractice crisis.

Reversing a Philadelphia trial judge, the majority in Capoferri v. Children's Hospital of Philadelphia, noting the substantial media coverage of the so-called med mal crisis when the trial in that case got under way in late 2003, concluded that a new trial was warranted because attorneys for the family of Jared Capoferri, now 11, were prevented from asking questions designed to elicit from members of the venire their thoughts, if any, on the issue.

The high court's denial of allocatur was dated Dec. 21.

While former Philadelphia Common Pleas Judge Mary D. Colins - now a member of the Pennsylvania Gaming Control Board - was among the judges who did not allow questions concerning the med mal crisis, other members of the city's bench did permit such probing of the venire persons, Capoferri plaintiffs' attorney Robert Daniels of Sprague & Sprague has told The Legal.

"The bottom line of the problem was the disparity in the way plaintiffs were being treated, depending on the judge" overseeing the voir dire process, Daniels said last February, when the Superior Court decision was filed.

Daniels said yesterday that the justices' single-sentence denial of CHOP's petition for allowance of appeal is an effective endorsement of the lower court's holding in the matter.

"It would appear to me . . . that this is now the law of Pennsylvania and that all trial court tribunals throughout the state are obliged to permit both plaintiffs and defendants to inquire of the prospective jurors as to their knowledge, information and understanding of what I regard to be propaganda that has been disseminated to the public," Daniels said.

CHOP's attorney in the case, Nicholas Centrella of Conrad O'Brien Gellmen & Rohn, did not immediately respond to a call seeking comment on the justices' order.

One veteran defense-side med mal practitioner said that while the development is not surprising, it's also not as relevant as it might have been in recent years, when talk of the med mal crisis was ubiquitous.

"It's not important anymore," said Peter Hoffman of McKissock & Hoffman.

But Daniels contends that the decision is "absolutely" still relevant.

Trial lawyer Thomas Kline of Kline & Specter said it will always be vital to be able to "ferret out" which potential jurors "have been unduly influenced by misinformation."

"The issue was not one that disappeared with the passage of time, and [this line of voir dire] questioning will, in my view, be permanently part of the structure of every medical malpractice case, as well it should be," Kline said.

Capoferri stems from a suit brought in 2001 after CHOP doctors allegedly failed to adequately treat a scrotal condition that ultimately led to the atrophying of one of Jared's testicles.

A November 2003 jury found in favor of the defense following a trial before Colins.

The Superior Court majority in the case agreed with the plaintiffs that a new trial was necessary due to the limitations on voir dire questioning.

"Common sense dictates that the type of media coverage that accompanied the debate over tort reform created a climate from which the average person could conclude that he or she would be economically impacted and/or be deprived of accessible health care services," Judge John T. Bender wrote last February on behalf of the Capoferri majority.

Bender was joined by Judges Joseph A. Del Sole, John L. Musmanno, Debra M. Todd, Mary Jane Bowes and Susan Peikes Gantman.

In a dissenting opinion, Judge Richard B. Klein, who was joined by Judges Michael T. Joyce and Maureen Lally-Green, called attention to the fact that the record included a mere reference to the debate over the proposed voir dire questions that purportedly took place between Colins and plaintiffs' counsel.

Local attorneys have called attention to the fact that Capoferri marks the first state appellate court decision concerning voir dire in many years.

Bender's key citation was to the state Supreme Court's 1968 holding in Atene v. Lawrence, in which the justices ruled that counsel should be permitted to question prospective jurors on whether they have relatives who are claims investigators.

More recently, and at the county level, Philadelphia Common Pleas Judge Louis G. Hill argued in his 1993 opinion in Fleishman v. Smith that if prospective jurors' exposure to propaganda favoring one party is explored during voir dire, then their exposure to propaganda favoring the opposite side must be as well.

And in his 2004 opinion in Phillips v. Hanna, Lackawanna Common Pleas Judge Terrence R. Nealon ruled that venire members in a med mal case could be asked about their knowledge of remarks President George Bush had made during a recent area campaign stop in which he stated that "you cannot be pro-doctor and pro-plaintiff attorney at the same time."

Capoferri plaintiffs' attorney Daniels said that after he noticed local judges were responding differently to attempts to question prospective jurors on their knowledge of the med mal crisis, he felt Pennsylvania's practitioners needed the type of guidance the state Supreme Court gave on insurance-related voir dire questioning in its 1968 opinion in Atene.