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Defense Digest

Change Is in the Air: A Shift in Pennsylvania Judge’s Role in Jury Selection Effective April 1, 2025

Defense Digest, Vol. 31, No. 1, March 2025

March 1, 2025

by Nicholas D. Bowers

Key Points:

  • Effective April 1, 2025, the Supreme Court of Pennsylvania has amended Pa.R.C.P. 220.3, pertaining to voir dire of jurors. 
  • Amended Rule 220.3(a) now provides: “Judge’s Presence Required.Voir dire of prospective jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge’s presence is waived by all parties with the consent of the court.”

The right to a trial by jury is a hallmark of the justice system in the United States. Juries consist of eight or twelve individuals from a given geographic area, generally lacking legal training, who are asked to decide facts and render verdicts, often of great consequence to the litigants. While jurors must follow the directions of the court, each juror has broad discretion in deciding, among other things, whether or not to believe a witness, how heavily to weigh competing evidence, and in determining whether they are or are not persuaded by arguments of counsel. In light of this, it is perhaps rightly said that many cases are won or lost during jury selection. 

In Pennsylvania, attorney control of jury composition is generally limited to voir dire and peremptory challenges. Traditionally, voir dire procedures in Pennsylvania have varied from county to county—with some counties involving judges in the process more than others. In particular, Allegheny and Philadelphia Counties, for example, generally utilized court officers who controlled the voir dire process in the absence of the judge or court reporter. 

Recently, however, a significant change in these procedures was adopted, with an effective date of April 1, 2025. Specifically, the Supreme Court of Pennsylvania amended Pa.R.C.P. 220.3, pertaining to voir dire of jurors, to include amended Rule 220.3(a), which now provides the following: “Judge’s Presence Required. Voir dire of prospective jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge’s presence is waived by all parties with the consent of the court.” (Emphasis added.)

The adoption of amended Pa.R.C.P. 220.3 was preceded by the case of Trigg v. Children’s Hospital of Pittsburgh of UPMC, 187 A.3d 1013 (Pa. Super 2018), which involved an Allegheny County trial where jury selection occurred in the presence of a court clerk as opposed to the trial judge. The plaintiff appealed the jury verdict on, among others, the basis that three jurors should have been stricken for cause due to bias, as evidenced in voir dire, which occurred outside of the presence of the trial judge. The appellant argued the court’s decision not to strike was reversible error, while the appellees took the position that the trial court was entitled to the palpable error deference standard announced in McHugh v. Proctor & Gamble, 776 A.2d 266 (Pa. Super. 2001). Thus, no error warranting overturning the verdict occurred.

The Trigg court took note of the fact that jury selection took place outside of the presence of the judge thus, depriving the trial court of the opportunity to assess the credibility of the proposed jurors to any extent beyond reading a transcript. Accordingly, per Trigg, the trial judge had no greater insight into the credibility of the proposed jurors—having not viewed the questioning live and, thus, lacked insight into the reactions of the proposed jurors to the questioning, including hesitation, eye movement or other physical manifestations impacting credibility—than the appellate court. Therefore, McHugh deference was not warranted. 

The Superior Court overturned the verdict accordingly. 

The Pennsylvania Supreme Court took up the case on appeal from the Superior Court in Trigg v. Children’s Hospital of Pittsburgh of UPMC, 229 A.3d 269 (Pa. 2020). While the Pennsylvania Supreme Court found that the issue in question had been waived due to counsel’s failure to object to the jury selection proceeding in the absence of the judge, the Supreme Court still found the procedure problematic, leading to adoption of amended Pa.R.C.P. 220.3.

Amended Rule 220.3 will likely lead to greater uniformity in the jury selection process across counties in Pennsylvania. Unless waived by the parties, voir dire must now occur in the presence of a judge. It is important for practitioners to understand that each party is entitled to have the judge present for voir dire, and this right should not be waived absent an affirmative decision to do so approved by a client. 

The Amended Rule may also assist litigants in the preservation of appellate issues, including those relative to a trial court’s decision to strike or decline to strike a juror for cause. The judge will be present along with a court reporter. 

*Nick is a member of our Casualty Department. He works in our Philadelphia, Pennsylvania, office. 



 

Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey 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. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. 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