The Pennsylvania Supreme Court was poised to decide whether the Superior Court was required to defer to a trial judge's decision not to strike a juror in a medical malpractice case, despite the fact that the judge was absent from the room when the prospective jurors were questioned.

But the justices didn't get that far.

In an April 22 ruling in Trigg v. Children's Hospital of Pittsburgh of UPMC, the justices unanimously ruled that the issue was never properly preserved for appellate review and was therefore waived.

A three-judge Superior Court panel in May 2018 granted plaintiff Mendy Trigg a new trial and reversed an Allegheny County jury's verdict in favor of the Children's Hospital of Pittsburgh of UPMC after Trigg argued that the selected jurors were biased.

The issue centered on the absence of Allegheny County Court of Common Pleas Judge Ronald Folino during voir dire, and a lack of any firsthand observation of the jurors' demeanor during that process.

Trigg argued that the lack of judicial supervision allowed biased jurors to slip through the cracks, while the hospital maintained that the issue was a "red herring."

"The knowledge gleaned from in-person observations is 'impossible to place in the record, [but] must be considered,'" Judge Deborah Kunselman wrote in the Superior Court's opinion. "An absentee judge misses the crucial instant when would-be jurors reveal their inmost selves by both words and actions."

In January 2019, the Supreme Court agreed to hear argument on three issues:

"a. Whether the Superior Court's decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the 'palpable error' abuse of discretion standard of review and properly defer to the trial court?

b. Whether the Superior Court's holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence?

c. Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?"

But in the high court's April 22 opinion, Justice Debra Todd said that the plaintiffs, "in making their for-cause challenge to prospective juror 29, failed to raise with the trial judge any issue relating to his lack of observation of this juror's demeanor in answering voir dire questions, nor did they request that he personally interview the juror."

"As a result, the trial judge was deprived of any opportunity to address and resolve this issue before the jury was finally empaneled," said Todd, joined by Chief Justice Thomas Saylor and Justices Kevin Dougherty and Sallie Updyke Mundy. "Indeed, in his Rule 1925(a) opinion, the trial judge indicated his express willingness to conduct in-person interviews of prospective juror 29, had appellees asked that he do so, as it was his customary practice to grant such requests. However, appellees made no request for such individualized follow-up questioning, nor raised any claim that such an ameliorative measure would be inadequate to cure the alleged harm they now assert was caused by the trial court's absence during voir dire, even though the trial court left the question of the specific method it should use to address appellees' for-cause challenges entirely up to them."

Justice Christine Donohue, joined by Dougherty, Mundy and Justices David Wecht and Max Baer, wrote a concurring opinion, saying she "reluctantly" agreed that the plaintiffs waived their challenge.

Donohue said she saw no reason why a trial judge's presence during civil voir dire should not be required the way it is during criminal voir dire.

"Considering the great importance placed on the requirement for a fair and impartial jury, and the role of the trial judge in the seating of such juries, it cannot be contested that the empaneling of a jury is critical to assuring a fair and impartial jury," Donohue said. "Because the right to an impartial jury is guaranteed for both criminal and civil jury trials, a judge's role in voir dire is no less crucial in a civil case than in a criminal case."

Wecht, joined by Dougherty, penned his own concurring opinion, to agree with Donohue that recreating the questioning of juror 29 in the judge's chambers would not have been "the functional equivalent of the judge's presence during voir dire."

"Like Justice Donohue, I do not believe that calling the prospective juror in before the judge for a second round of questioning sufficed to replicate the opportunity for personal observation that the judge already missed," Wecht said.

Counsel for the Children's Hospital, Jason Zivkovic of Dickie, McCamey & Chilcote in Pittsburgh, could not be reached for comment.

Counsel for Trigg, Harry Cohen of Harry S. Cohen & Associates in Pittsburgh, also could not be reached.