*1 BY STATEMENT CONCURRING Minor, by CAPOFERRI, and Jared KLEIN, J.: F. Heather Through Richard J. and ¶ join majority Opinion. in the and Natural Capoferri, as Parents Capoferri and Richard J. Guardians difficulty certainly I understand H/W, Capoferri, F. and Heather where the unscrambling this matter Appellants, Right, Their Own cryptic and the language trust somewhat totally ignored trustee/beneficiaries in trust. property
fact that PHILA OF HOSPITAL CHILDREN’S Dr. Michael C. Carr DELPHIA remedy Normally, the should be Hutcheson, Appellees. and Dr. Joel C. trustees, return remove the Paxsons taken from the improperly property Pennsylvania. Superior Court trust, profits from recover the trust Nov. Argued proportional other transactions as collateral trust used property amount of 31, 2006. Filed Jan. transactions, pay then for those their lifetime. to the Paxsons for
income majority that agree I with the
However and the
considering breakup the marital Father and hostility between
extent children, not an it was
Mother judge for the
abuse of discretion failed and to purpose
find that the trust I with the agree the trust. also
terminate extinguish this does not
majority that Paxsons,
life interest life inter- the value of their
should receive
est. attribut- agree profit 4 I also property should to the misuse trust
able to the trust. How-
be considered returned
ever, should be returned property terminating the trust.
the trust before responsible for re- the Paxsons are
While personal
imbursing profits the trust for property, trust by misuse of comput- life interest should be
value to the trust. returned
ed those sums after *2 Daniels,
Robert C. Philadelphia, for ap- pellants. Centrella, M. Philadelphia,
Nicholas appellees. SOLE, P.J., JOYCE, DEL
BEFORE: MUSMANNO, LALLY-GREEN, TODD, KLEIN, BENDER, BOWES GANTMAN, JJ. BENDER, BY
OPINION J.: ¶ 1 In case, this medical malpractice Capoferri Jared his parents, Richard J. Capoferri, and Heather F. (collectively Plaintiffs) appeal judgment from the en- tered June of Chil- favor (CHOP), Hospital Philadelphia dren’s Carr, M.D., Michael C. and Joel C. Hutcheson, M.D. (collectively Defen- dants).1 argue Rather, At testimony, jury. close all it was deter- agreed Defendants that if mined at an in-chambers conference that either Dr. Carr or Dr. Hutcheson or both liability CHOP’S would not be submitted to jury, were found liable then CHOP Capoferris Urology, explained ju- questioning precluded appendages has little cov- the testicle the media during dire about rors twisted, then become which somеtimes alleged medical of “the erage *3 was if this untwist; not sure physicians he was flight of alleged in and the crisis He did to Jared. happened brief at 7. had Philadelphia.” Plaintiffs’ what from al- that, surgery, exploratory their at- contend over not recommend Plaintiffs also about such objections, court allowed asked torney’s though Capoferri the trial Mrs. testify Hutchenson did witnesses Dr. one of Defendants’ a procedure. inva- ‘color an “interpretation alleged warranted about her think the situation 23). (N.T. 11/17/03, p. ultra- supposed ‘real-time’ Doppler’ procedure. sive the actual images though ... even their examina- sound results of on the Based and images had been discarded if Jared tion, ultrasound the caveat that and with [Plaintiffs], made available symptoms were never he or other developed a fever at trial.” Id. at immediately, as evidence or introduced Dr. brought back should be omitted). (emphasis We reverse 9-10 bring Capoferris Hutcheson told the remand for a trial. new examination for another Jared back (Id.) one week. following 2 The trial court forth the set that did testified Jared Capoferri Mrs. recitation facts: during classes go pre-school to his 1999, minor On or about March week, swelling and the 3/29/95) the next (d.o.b. plaintiff Capoferri, Jared reduce, Jared was redness did not by his mother. She being was bathed (N.T., 11/17/03, in extreme discomfort. “humon- that his left testicle was noticed 26-27). 12, 1999, Jared p. On March She “bright red” and “swollen.” gous,” Dr. by Dr. Hutcheson and examined was down his testified that when she took ordered, was (N.T., Another ultrasound clothes, Carr. “he it hurt.” cried Dr. 11). Stazzone. 11/17/03, again performed if asked him he p. She 31). (N.T., 11/17/03, Hutcheson p. Drs. fallen, he able to tell her but wasn’t 11/17/03, Capoferris that (N.T., reported tо the and Carr p. had happened. what plenty was 9). there who the tests showed pediatrician, Jared’s She called testicle, and that blood flow Jared to the Emer- advised her to take in a resolve probably Hospital problem would gency Room Children’s Capoferri (“CHOP”) Again Mrs. or two. Philadelphia morning, week ex- be done to operation that an through night asked watch him but to torsion, she (N.T., which plore for testicular vomiting, fever and nausea. intervening 12). during the 11/17/03, develop had researched p. Jared did not 34-35). (N.T., 11/17/03, She p. was not week. but he symptoms, of these insistent, but quite was swelling. In she walk testified able to because give them physicians did not morning, Capoferri Mr. and Mrs. undergo explor- to have Jared CHOP, option ex- where he was took Jared to (N.T., atory surgical procedure. an ultra- initially sent for amined 36). results of 11/17/03, on the examinаtion, p. Based conducted sound was test, instructed to (N.T., 11/17/03, plaintiffs p. 17- by Dr. Stazzone. (Id.). 18). Hutcheson, in two months. return Dr. Fellow Defendant 11/24/03, chambers, at 7-12. theory fully of vi- liable under would liability. N.T. Conference in- carious See Capoferri Mrs. testified that eventual- alleged medical malpractice cri- ly, during ensuing period, two month sis Pennsylvania generally and swelling, pain redness and de- flight alleged physicians creased, and Jared resumed his normal particular, Philadelphia submitted Then, activities. on or May about requested Capoferri when Mrs. giving selection? bath, Jared his up he “shot out of the 2. Whether the trial court abused its tub” and big announced “the one hurts.” discretion and committed reversible 40). (N.T., 11/17/03, p. day, The next overruling requests by error *4 Mrs. Capoferri took Jared to CHOP. [Plaintiffs], first, and, at to preclude, Dr. ultrasound, Carr ordered an thereafter, strike references to upon results, reviewing informed the alleged Doppler color studies and/or Capoferris that Jared’s left testicle had supposed real-time ultrasound im- atrophied. Capoferri Mrs. testified that defense, ages upon by relied Dr. apologized Carr and said he had no images studies were and/or explanation for what happened. preserved by [Defendants] 43). (N.T., 11/17/03,p. were never made for available re- Capoferri immediately Mrs. called her experts view the medical who pediatrician for the name pe- of another testified on behalf of [Plaintiffs]? urologist diatric and was referred to Dr. at Plaintiffs’ brief Rabinovitch at Christopher’s Hospi- St. Capoferris tal. The took a Jared for Initially, we note our standard of consultation, result, and as a decided review with a regard to motion for a new have Dr. perform Rabinovitch a short trial. outpatient procedure order to secure willWe reverse a trial court’s decision to (N.T., Jared’s remaining testicle. deny a a motion for if only new trial 51-53). 11/17/03,p. trial court abused its discretion. We 8/3/04, (T.C.O.),
Trial
Opinion
Court
at 1-3.
must review the
alleged
court’s
mistake
10, 2001,
May
3 On
Plaintiffs filed
and determine whether the court erred
complaint
and,
so,
sounding in
if
negligence against
error
resulted
jury
Defendants. A
prejudice
trial
on
necessitating
commenced
If
new trial.
November
2003. Then on
the alleged
November
mistake concerned an error
law,
determined that
Defen-
we will
legal
scrutinize for
error.
dants
not negligent
and returned a
Once we determine whether an error
occurred,
verdict in
all
favor of Defendants. Plain-
we must
then determine
post
motion,
tiffs filed a
whether the trial
requesting
court abused its discre-
trial; hоwever,
new
request
tion in
ruling
motion was denied
for a new
timely appeal.
and Plaintiffs filed this
trial. “An
abuse
discretion exists
n
when the trial court has rendered a
¶ 4
present
following ques-
Plaintiffs
judgment
manifestly
unreason-
appeal:
tions on
able, arbitrary,
capricious,
or
has failed
1. Whether the trial court abused its
law,
apply
or
was motivated
discretion and committed reversible
bias,
partiality, prejudice,
or ill will.”
in denying
op-
error
[Plaintiffs]
portunity
to ask prospective
Stalsitz Allentown Hosp., 814 A.2d
questions,
regarding
certain
771 (Pa.Super.2002),
denied,
appeal
knowledge
(2004) (citations
or perspective
Pa.
about
personal lawsuits then noted the attachment court particu- opinion3 and add- cases in its questions medical standard that: injured person in which seeks ed lar Plaintiffs’ Statement of objection note that registered formal also
2. Plaintiffs their Appeal pro- Complained of on lists Matters right by to the denial the trial court their 27-32, questions while Plaintiffs’ brief posed jury just questions submitted have these pro- and at the questions lists 27-32 prior to See N.T. Voir Dire the start of trial. registered ceeding at which 11/17/03, (a proceeding Objections, 2-3 at pro- objectiоns on November presence open out of the held in court limited to posed questions addressed by statements made jury). It is evident from These differ- questions 27-30 and 34-36. attorney and the court Plaintiffs' only questions 27-30 ences allow for properly timely sub- Court. at issue considered rejected prior to the mitted and had been process. Id. referred selection The standard start include: trial court for both [CJounsel sides are free to ask come the litigation parties or the in- questions on individual regard- scope The volved. and extent of voir venireperson’s ing the experience with dire examination is within the sound dis- lawsuits, experience in medical-related cretion of the trial court and jobs, person’s law-related atti- rulings court’s thereon will not be dis- tude “pain toward verdicts for turbed absent a clear abuse of that dis- suffering” аnd other intangible damages, cretion. person’s and the capacity for fairness. Rolling Ball v. Hosp., Pa.Super. Hill jurors’ It this court’s experience that (cita- (1986) 518 A.2d 1244-45 prejudices, both favorable and unfavora- omitted). tions and quotation marks Addi- other, ble to one side are more tionally, by Plaintiffs, as referenced Pa. fashion, than adequately explored in this 220.1, R.C.P. the rule procedure of civil opening without docir for entire pan- dire, governs provides perti- els to be found unsuitable for part nent that: service because have heard about a issue, particular public such as the (a) Voir dire shall pro- be conducted to “medical crisis.” vide opportunity to obtain at a Id. 5. Accordingly, the trial court found description minimum a full Plaintiffs’ first issue without merit. information, following where rele- ¶ Initially, we note that in addi vant, concerning ju- tion to the applicable standard of review rors and their households: *6 a for request a new trial as delineated (11) Relationship prospective above, we recognize further that: juror any or prospec- member of the purpose The sole of voir [dire] examina- juror’s family tive immediate to the fair, tion[ ] is to secure competent a and industry, including insurance employ- jury. impartial To achieve this purpose, ee, adjustor, claims investigator, general questions permitted should be agent, or in stockholder an insurance so that it can be determined whether company; any the veniremen a have direct or a contingent
even in interest the out- you case, anyone you 16. Have or close to you any ever 21. In a civil would have someone, sued, sued been or been a problem following the Court’s instruc- witness? money damages tion to award for for you anyone 17. Have you or close been things pain suffering, like and loss of employed lawyer as a or a law- etc., pleasures, although life's it is dif- job? related put figure ficult to a dollar on them? you anyone you 18. Have close you any problem during 22. Would have employed as doctor or nurse or in a jury deliberations in a case civil dis- job? medical-related cussing fully making the case but still case, you 19. In any a civil would up your own mind? problem following the Court’s instruc- any 23. Is there reason a in civil case plaintiff tion has the burden of you cannot follow the Court’s instruc- case, proof, but unlike a criminal tions on law? beyond a test reasonable doubt any 24. Is there a reason in civil case that likely but "more than not”? you juror? cannot otherwise be a fair case, you In a civil would Questionnaire, Juror Information at 2. problem putting sympathy aside plaintiff deciding and the case solely on the evidence?
139 prop in particular crisis (14) juror malpractice be- prospective Reasons for voir dire examination. subjects or should he or she cannot lieves er v. North juror; Babcock serve as include These decisions (Tex. Hosp., 767 S.W.2d 705 west Mem’l Peterson, v. (16) 1989), P.2d Barrett information pertinent Such other particu- and Kozlowski (Utah appropriate Ct.App.1993), (1992). fair competent, lar to achieve Rush, case P.2d 854 121 Idaho jury. impartial and produced has own research 10 Our (16). (14) 220.1(a)(ll), Pa.R.C.P. of Com County Court Lackawanna recent ¶ Thus, must address questioning that allowed opinion mon Pleas is, light pre- case in this jurors during in a of the “medical publicity “regarding their malpractice case medical esрecially Pennsylvania crisis” Bush’s remarks knowledge of President court City Philadelphia, the trial rally in the area during a campaign [made relating questioning have allowed should 8, 2004, just before the September during voir dire in order to secure thereto September of trial on start scheduled fail', impartial jury. competent, comments that those and the effect 2004] Pennsylva- unable to locate have been Phillips v. Han may have had on them.” directly point appellate nia court cases na, (Lack.Cty. D. & 67 Pa. C.4th a case. party neither has cited such 2004).4 trial court opinion, In its ju- from other rely Plaintiffs on decisions allow the decision to Phillips supported its whether, in the that address risdictions an extensive voir dire examination with lawsuits, context medical jurisdictions from varied list of cases coverage concern- questions abоut media rely. on which the cases and the medical includes ing general tort reform in decision, November, years practice after 15 quoted following Phillips "Last 4. The *7 that his Pennsylvania, learned excerpt Bush’s statements Dr. Davis from President rally, published longer was the text of which insure company would no insurance Septem- Tribune on junk The Scranton Times/The because of the this state doctors in 4, 2004: ber lawsuits, system here in the law because a issue that is lottery. "I want to talk about national a That’s medicine is like terms of Pennsylvania. of to millions here concern patients. unfair it’s like. And it's what doctors, really many many fine too Too taxpay- It’s unfair to to doctors. It’s unfair being practice out of are forced healers you policy, it a but said found new ers. He high junk lawsuits. of the cost because part delivering a give up babies had pro-patient pro-doctor and You cannot be coverage. happening to what's That's pro-plaintiff attorney at the same time. country. all across OB-GYN’s My opponent made "You have to choose. pregnant, Mary, four months forced "That put ticket. I he him on the his choice and way to see driving miles each 50 to start choice, standing with the my I'm doctors, doctor. When a different different patients. We want medical [sic] does summer, she Mary’s daughter arrived liability reform now. by a doctor summer was delivered this story give you quick about what "Let me a T Mary said started never met. She telling you this talking I’m about. I’m going to cry told me he when he requires a national problem that national happening be- delivering.’ This stop Neal Davis Today, met with Dr. I solution. gone awry. We system legal has cause patients his He told all from Carbondаle. liability now.” reform medical need Coar, pa- Mary of his one to come. And at 452-53. Phillips, Pa. D. & C.4th 67 story you be- to hear this tients ... I want America. happening all across cause it's 140
The court’s comprised list was fol- (concluding that “a party may inquire lowing: jurors have been exposed Pitts, e.g., Lopez-Stayer malpractice
See
122
media accounts
a medical
45,
(2004)
904,
Wash.App.
plaintiffs
93 P.3d
908
crisis” if the
first “demonstrate
(provided that counsel did not use the
potential
court that
members
“insurance,”
word
plaintiffs counsel
may
exposed
have been
to such adver
malpractice
medical
action
“voir
could
tisements.”);
Fenenga,
Sutherlin v.
111
‘claims,’
topics
dire on
‘frivolous
767, 776,
353,
N.M.
810 P.2d
362
lawsuits,’ and
malpractice
the medical
(N.M.Ct.App.1991) (malpractice plaintiff
generally”
‘crisis’
jury panel
since “the
good
conduct a
faith
inqui
(as рart
general
public) had been
ry
malpractice
into
“upon
crisis issues
inundated with publicity about the medi-
proper showing members
cal
crisis and
on
its effect
prospective jury panel may have been
the health
industry,
care
re-
including
exposed to
concerning
media accounts
cent comments
by
President of the
allegations
about
the effect of
United States
his State of the Union
den.,
costs.”),
awards on insurance
cert.
Address.”);
Gimbel,
Irish v.
1997 ME
678,
(N.M.1991);
111 N.M.
Ml subject informa- to may be per jurors well curiam court’s decision Fleishman points of view. Therefore, affir- from both opinion. campaigns tion without propa- precedential jurors’ exposure mance has no effect. See inquiry into Pa. Tilghman, permitted, favoring party Commonwealth one ganda (1996) a (explaining that jurors’ 673 A.2d exposure into inquiry then the law of per curiam affirmance becomes party favoring the other propaganda case, rationale adopt but to em- be permitted. It should must also be court, per by a lower curiam ployed to limit the trial court’s discretion within opinion affirm the order to basis matters on voir interrogation into such required). of that court would be dire. ¶ Thus, by although we are not bound Id. decision, opin- we find that Fleishman on both agree proponents that ion The Fleishman court rec- instructive. access. We this issue have media sides of ognized Pennsylvania appellate that no may jurors are also aware yet specific court had as addressed the myriad exposed be information coverage in involving voir dire issue media opinions that take espouse sources Therefore, it a medical case. any- that fall positions opinions extreme jurisdic- relied on decisions from other also of a Howev- where in the middle debate. prohibited that it had this
tions indicated er, a valid we cannot conclude that inquiry possible interjec- type of due questioning prospec- not to allow reason subject coverage at tion of the of insurance jurors there has been massive tive when trial. It also cited decisions from other coverage on an issue amount media jurisdictions malprac- that permitted the by matter that will be heard relates types questions during voir tice crisis panel. Interestingly, Defen- plaintiffs’ re- the chosen concluding dire. In that the denied, no argue that there was such quest properly the court dants do not malprac- Fleishman found that there was a failure “medical media attention to the by plaintiffs specific to state the the time the instant case tice debate” at grounds post-trial request to support Rather, that the was tried. contend relief, i.e., they specify did by the trial standard set of noted pro- dire, the court refused to pose court, voir accompanied individual spective jurors that would formed the satisfy found to sufficient to should be be error for their claim that reversible basis fair, competent, goal impaneling The had been committed. Fleishman disagree. impartial jury. We plaintiffs court also found that again reference begin, 13 To “showing lay a foundation
failed to
220.1(a)(16),
which directs that
Rule
may
impanеled
that the
on voir dire
ob
opportunity to
dire “shall” include the
exposed
coverage
to media
con-
“[sjuch
pertinent information
plaintiffs
the issues on which
tain
other
cerning
Fleishman,
particular
sought
appropriate
them.”
*9
220.1(a)(16).
opined
Phila. at 262. The court also
that:
We
case....”
Pa.R.C.P.
Rule 220.1 of the
cognizant
are
that
also
coverage of
of media
“problem”
[T]he
County
contains
Allegheny
Court Rules
crisis”
the “insurance crisis” or “lawsuit
questions
of
to be directed
list
detailed
ways. Special
groups
interest
goes both
cases,
“all
jurors in
unless
prospective
civil
lobby
rights have
plaintiffs’
for
which
strike,
inap
in advance to
parties agree
do
same media markets as
access to the
in-
type
case
for
propriate
lobbyists,
prospective
so that
insurers’
Allegheny
volved....”
Rule 220.1
ring
ready
at the time this case
was
trial,
County
parties
Court Rules.
In addition
should have
to a list
been allowed
question
jurors
questions
prospective
that
about their
group,
are directed to the
regarding
attitudes
medical
the local rule
forth questions
sets
to be
n
and tort
in
reform
order
determine
individually.
example,
asked
For
those
juror
whether each individual
could serve
that
pertinent
are
to the issue before us
in a
impartial
fair and
manner. Common
provide:
type
sense dictates that the
of media cov
19)
you
Have
heard or read information
erage that accompanied the debate over
advertising
television, radio,
or
inor
tort reform
created
climate
which
newspapers
that deals with the sub-
the average person could conclude that he
ject of
generally?
lawsuits
or she
economically
would be
impacted
a)
result,
you
As a
do
an opinion
have
deprived
of accessible health
and/or
or belief about lawsuits in general?
care services.
ques
Because there was no
b)
so,
If
opinion
what is that
or belief?
pervasive
tion that there was
media cover
c)
your
Will that influence
judgment
age
on the issue
medical
in
you may
this case that
not be able
case,
in
to trial
the instant
we con
impartial?
to be fair and
clude that counsel for both sides should
20) This case
money
involves a claim for
permitted
question
the pro
damages
spective jurors
and is
type commonly
subject
regarding the
a_(products
called
attempt
glean
any
liabili-
whether there
ty;
accident;
any
impact
juror’s
medical
malpractice;
ability
auto
individual
contract, etc.)
fairly
impartially.
breach of
decide the case
lawsuit.
hold,
Supreme
as did the
Texas
Court
a)
you
Do
or
opinion
a belief
Babcock,
actions,
trial court’s
“[t]he
against
for or
type
this
of case
or
resulted
the denial of the [plain
people
file
type
case,
who
this
or
right
tiffs’] constitutional
to trial
a fair
persons
who
sued in
type
are
impartial jury,
was harmful ...” [and]
case?
[of]
discretion_”
“was an abuse of
Bab
b)
so,
opinion
what
or belief?
cock,767
at 709.
S.W.2d
c)
your
Will that influence
judgment
holding today
15 We believe that our
you
this case so that
not be
Supreme
follows the dictates of our
impartial?
able
be fair and
Lawrence,
Court’s decision in Atene v.
21)
you
Is there
why
reason
feel
(1968),
Pa.
143 under Having 17 determined jurors are not aware of times when are for a a remand new here the circumstances court disqualifications, the Atene their own need not address appropriate, we trial is statеd: However, because issue. Plaintiffs’ second remarked that better be [I]t a likely, provide will trial is we a second general inquiry a as to allow practice is Plaintiffs’ why find we explanation limited contingent interest to the direct or even Plaintiffs con merit. issue without second litigation, jurors, in the result any not provide did that Defendants tend it, ap- parties to when there or in the why the “color explanation reasonable grounds to any to reasonable pears be by used images Doppler” and “real-time” may have a of them believe that some in their treatment decisions Defendants result of the possible interest to available preserved and made in order that litigation, parties, or in the that, therefore, selected, jury may free impartial an be have allowed references court should not from bias interest. images by and their Defendants to these pointed to the trial court The witnesses. Clay Md. (quoting v. Id. at 349 Western by testimony given on cross-examination Co., A. 221 Pa. 807 R.R. Hutcheson, that al explained who Dr. (1908)). Stazzone] was radiologist [Dr. “the though However, in as concluding we on the screen an ultrasound able to view have, necessarily we do not endorse technology color, ‘they have the ... didn’t ” questions proffered by Plaintiffs. those film.’ at print to color T.C.O. at CHOP Barrett, Rather, by the court stated 155). N.T., 11/20/03, Conse at (quoting conclude that the trial court should “we the trial court determined quently, jurors appro have asked the provided the clearest ex “Defendants priate preliminary questions—either why original as to possible planation suggested appellant or alterna those not available for ultrasound was color liking—de its tive more to cannot jury. Defendants viewing by the detect, initially, signed something that did provide expected be exposed prospective jurors had been at 7. time.” Id. not exist negligence to tort reform and medical of an Our standard review Barrett, P.2d at 102. propaganda.” trial court ruling evidentiary so, “Had the trial court and had done extremely narrow. jurors responded positively or exclusion of evidence admission The party] questions, [either these initial sound discretion is matter within the more would have been entitled court, may only be of the trial questions put de specific to the upon showing of manifest reversed jurors’ attitudes signed probe those To constitute re- discretion. abuse of resulting regarding, possible bias error, evidentiary ruling versible from, the information.” Id. tort-reform erroneous, only but also must be the practice find that would complain- prejudicial harmful or of action ensure prudent most course ing party. fair, impartial, unprejudiced 277, 282 Perry, 861 A.2d the Potochnick to hear and decide jury is selected review, our done, upon Based (Pa.Super.2004). this was not we are case. Because allow- ruling, that the court’s compelled judgment en conclude reverse images while to the color ing references a new trial. tered and remand for *11 only photographs Essentially, black white were we do not know what happened during dire. The display jury, available for to the was not a voir notes testimony begin not until do November manifest abuse discretion. further 2003,6 jury after the had been selected. note that provide Plaintiffs failed to cita- explaining After the court the reasons support argu- tions authorities to asked, why questions he wanted the regаrd ment with to this issue. See Pa. judge replied: trial 2119(a). R.A.P. So, basically, you The Court: plac- are Judgment reversed. New an ing objection on the record because I granted. relinquished. Jurisdiction questions would not allow these to be ¶20 Judge dissenting KLEIN files a read?
opinion Judge in Judge which JOYCE and Yes, please. Mr. Daniels: LALLY-GREENjoin. (N.T. 11/17/03, 3.) p. ¶ Certainly an inference bemay drawn KLEIN, DISSENTING BY OPINION that the trial informally court at least J.: told he counsel could not ask the ¶ 1 Whether or not it is necessary to However, at given specific issue. pro- specifically address the so-called “medical question, in cess I do not that it is believe dire, malpractice I crisis” voir do not evident that Plaintiffs’ counsel obtained a believe official record this matter is informal, ruling, directly formal plaintiffs sufficient to hold that preju- prior jury the court selection. process. diced during There- proceed assump- if we on the Even fore, I respectfully dissent. tion that counsel was told no uncertain ¶ 2 Even if the “medical cri- terms that he could not ask dire, sis” should be addressed voir and 30 selection actual voir dire process was tran- testimony
145 objection ¶ there was selected majority jury was with the My disagreement specific that certain indicated impossible noted belief it is primarily my lies by the trial. permitted present- questions particular facts determine the justify enough of a record This is not ed, specific case. in this presented, or not reversal.9 ¶ majority in footnote 7 The states rec- opinion: on the official nothing
its 9 There is beyond counsel did determine what ord to objec- their formal registered to ex- objectionable questions submitting trial court of by denial the tion the is- crisis” malpractice the “medical plore questions these sub- right to have the issue be If counsel believed sue.10 just start jury the mitted to merit, should know counsel of sufficient Objections, Dire of trial. See N.T. Voir the must include that the official record (a 11/17/03, at 2-3 held proceeding testimony/evidence that allows relevant the presence of the open court out 2152. If See Pa.R.A.P. appellate review. It from statements jury). is evident sufficiently re- record does not the official attorney and the by Plaintiffs’ gener- will transpired, the issue flect what timely questions court that the had been See Pa.R.A.P. ally deemed waived. rejected prior submitted and had been Here, is that the all that is noted 2101. jury process. to the start of the selection pro- might have been questions particular record, However, it im- there judge. trial Because by hibited exactly hap- to determinе what possible made dur- contemporaneous record was no process. during jury selection pened only suppo- jury we have ing the selection plaintiffs do not know whether counsel We sition. right inquire about the so- preserved his ways to are a multitude of 10 There malpractice “medical crisis” less called of the subject investigate potential bias because terms. do know the biased asking crisis” without “medical up in individual voir dire. Since came questions. example, For day specific those is no of the voir there record dire, majority the solution offered noted requested not know if counsel we do Peterson, P.2d 96 Barrett v. judge allow him to cov- Utah that the otherwise (Utah Bar- denying Ct.App.1993). After “medical the area of the er regard- questions crisis,” permission to ask requested to create a rec- rеtt or even tort-reform, Appeals the Utah Court of ing nothing show that about the medical ord to have tak- trial court should malpractice crisis could be addressed determined on the upon to ask All after the en it itself voir dire. we know is that disagreement judge if ily questions proffered by is available there Plaintiffs.” endorse be re- question that cannot at-Pa.-, particular over a (Majority Opinion 893 A.2d at Therefore, lawyer have the should solved. 143.) judicial ruling opportunity to have jury entire is selected. before likely was selected It is that the preclu- object plaintiff’s did not counsel Friday Monday starts. In this before the explore the “medi- means sion alternate would mean the was selected case that ques- other than his malpractice” issue cal tions, days three before the on November Without this issue. has waived he formally objection lodged. It relevant record, tell. we cannot present judge for the appears that the was not dire, by coun- and that it was conducted to the trial remand 10. We note that cannot findings by judge’s the trial by a staff or the additional sel or member court for circumstance, longer on the bench. usually judge, as she is no staff. court In Í46
subject. Then incomplete, could have I do not believe we are in a position been asked in a to grant neutral manner. relief on the issue. *13 ¶ If accept 13 we do not inference ¶ 11 This leads inadequacy back Capoferri’s jury questions were of the official record. Because we have no selection, jury ruled then the clear indication happened, of record what objection clearly untimely is the issue and not do know for certain if such solution should be deemed waived. of the One proposed rejected was by Capoferri. primary objectives making objection of Capoferri We do not know if wanted these is to give opportunity court the specific questions jury asked panel of the correct the mistake. jury Once the has and no others. doWe not know to what (and been selected because we do not have questions extent denied could have testimony, notes of we do not even follow-up worked into questions.11 in) jury know if had been sworn it is Rather, all is the agreement we have of too late to complain about the selection objects counsel that he because the court Freeman, See Commonwealth v. process. would not allow “these questions to be (2003) (time- 573 Pa. 827 A.2d read.” See N.T. (emphasis 11/17/03 ly objection required to allow trial court added). error). remediation of improper It is selected, wait until the entire jury is I during argument 12 note our before then, reflecting that one does not like the Court counsel stated he not was allowed to composition selected, finally objection make the formal on the record retroactively object questions until voir dire was completed. Even if permitted. That should be considered true,12 this still does not relieve counsel of objections, judge waiver since obligation from the of insuring a complete could the voir during have been contacted review. See record for our transmitted dire, not after the was selected. Pa.R.A.P. 1921. Counsel could have de- for some reason the judge was not avail- the prior proceedings scribed on the rec- case, able in this that should have been оrd on November 17. Counsel could have placed on It the record. was not. dire taken down the court reporter and transcribed. Counsel could 14 It questionable also is it whether have made use of Pa.R.A.P. 1923 or 1924 would have been an abuse discretion for entered statement absence the trial judge, who has the flavor transcript agreed courtroom, statement record prohibit specific into the official record.13 Because none about “tort or a reform” “medical malprac- taken, options these the record on this tice crisis.” The standard cover incomplete. issue is Because the record is possible a number of areas where bias question 11.We do know that some extent the infor- 12. I do not mean counsel’s veraci- sought follow-up ques- mation was elicited ty. simply recognition This is thаt statements tioning, as counsel admitted such in the rec- during argument are not evidence and ord we do have. Counsel stated to court: part are the official record. "And, fact, during as a matter of the course of jury, separate our individual voir dire of the issue, Capoferri's second an evidential apart quite by group, from the rest of the question, suffers a similar fate. We are asked accident, accident, quite by because ruling admitting to review the trial court's occupation, identified their and that led to having certain evidence without the benefit of fact, question, preju- another evidenced testimony. *14 record to determine sufficient there timely or whether
objection was explore available to means
were other matter,14 I am constrained to dis-
subject
sent. Pennsylvania,
COMMONWEALTH
Appellant
v. WILLIAMS, Appellee.
Dion Lamar Pennsylvania,
Commonwealth
Appellant
v. Woods, Aki
Gerald A/K/A Appellee.
Bivins Pennsylvania,
Commonwealth
Appellant
Darrale Markese Gaines A/K/A Appellee. Lane
Terrell Pennsylvania.
Superior Court of Sept.
Submitted 1, 2006.
Filed Feb. amake sub- I that the record insufficient such that the state of the record is 14. If objection ruling. even determine whether cannot stantive supports my timely, too conclusion notes November 17 are scribed. All that comment we have event, merely a that prior formalization of indicating was selected problem questions, is not solved. The after judge might to ask refused submitted, They as are are improper. specific questions certain related to the instruments are purportedly blunt which by plaintiffs’ issue submitted counsel. I do being specific asked to obtain information.7 not believe there was error in prohibiting At questions, least one number asking specific questions in those the man- bias, an referring reveals inherent ner in were framed. There is “so-called” medical crisis. no that the showing area could not have might Counsel as well have submitted explored by questions, slanted less referring just to “defendants who fact, Thus, and in arbitrarily some were excused I pay refuse to claims.” concerning malprac- when a bias medical in denying permission would find no error questions.8 tice was shown. specific cases to ask these initially seeking specific 6. The did official record contain tions need to be information Questions testimony. response proposed notes of In so tailored. such were Court, belatedly they by plaintiffs produce order were at- could a "blurt-out" an- panel. tached. It now dire clear that itself swer that could taint the entire was not transcribed. reservations, majority 8.The has similar least, "However, juror questionnaire general questions, stating: 7. The contains about the Ques- have, questions seeking responses. general concluding as we do not necessar-
Notes
notes See dice.” N.T. at 3. 11/17/03 permit- counsel was appears It explored. jurors individ- potential ted to could prejudice ually. possible Areas of way. in that further covered have been happened just not know what do Again, we during the voir dire. have a do not I believe we Because