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The Pennsylvania Superior Court has reinstated a lawsuit against health care provider UPMC and one of its divisions after determining that two jurors showed potential bias against medical malpractice litigation during voir dire questioning when the trial judge was not physically present.

A unanimous three-judge Superior Court panel Friday reinstated the case, captioned Smith v. Cordero, over allegations that a misdiagnosed ulcer resulted in a leg amputation and death. Friday's ruling vacated the defense verdict, and remanded the case to the Allegheny County Court of Common Pleas for further proceedings.

According to Superior Court Judge Maria McLaughlin, who wrote the court's 11-page opinion, the trial court judge should have granted a motion by plaintiff's counsel and failure to do so could not be considered harmless error.

Although the defendants argued that the court needed to give deference to the trial court's ruling, McLaughlin noted that, because the court clerk oversaw voir dire, rather than the judge, the trial court's opinion did not merit deference from the appeals court.

"Here, the jurors expressed their views that medical malpractice suits have affected the cost and availability of medical services and that there should be a minimum or maximum amount of money that may be awarded to an injured party," McLaughlin said. "The jurors stated that they could follow the court's instructions and be fair and impartial. However, as the trial judge was not present to hear the juror's tone of voice and see the juror's demeanor, we cannot know whether the jurors truly could be fair and impartial. We therefore conclude that the answers expressed the 'slightest ground of prejudice' required for dismissal and the court should have granted the motions for cause."

McLaughlin was joined by President Judge Jack Panella and Judge Victor Stabile.

According to McLaughlin, the case was filed after Dale Smith, who suffered from diabetes, kidney disease and other illnesses, visited with Dr. Marc Cordero regarding an ulcer on his leg. Cordero allegedly misdiagnosed the wound as venous rather than arterial, which, according to the plaintiff, led Smith to undergo an unneeded leg amputation that caused a series of events ultimately resulting in Smith's death. Smith's wife, Ann Smith, sued Cordero, UPMC McKeesport and UPMC.

Jury selection, McLaughlin said, began in March 2018. Although those proceedings were overseen by the court clerk, when the parties made motions to strike jurors, those motions were argued before the judge.

Smith's counsel, according to McLaughlin, sought to strike three jurors for cause—juror No. 37, who said she believed there should be limits on jury awards and that malpractice cases were keeping doctors from practicing medicine; juror 25, who said she thought juries typically awarded too much money in malpractice cases, which drives up the costs of services; and juror No. 45, who said awards should be capped.

After hearing arguments on the challenges, the judge agreed to strike juror 37, but allowed the other two to serve on the panel. The case was later tried to a defense verdict.

On appeal, Smith argued that, since the court did not personally witness the voir dire, it essentially "arbitrarily denied" its motions to strike for cause, and, citing the Superior Court's 2018 decision in Trigg v. Children's Hospital of Pittsburgh of UPMC, contended that the Superior Court needed to conduct a de novo review of the issues.

The defendants countered that Trigg didn't apply because it came down after the voir dire, and that the judge was simply adhering to long-standing practices in the courthouse.

McLaughlin decided to review the case de novo, saying that "Trigg did not impose a requirement that a judge be present [during voir dire]. It merely addressed the applicable standard of review where a judge does not witness the voir dire."

Neither Golomb & Honik attorney Andrew Spirt, who represented Smith, nor defense counsel George Kachulis of Dickie, McCamey & Chilcote returned a message seeking comment.