LABAR v. MCDONALD et al

Filing 78

MEMORANDUM/OPINION THAT PLAINTIFFS' MOTION FOR AN ORDER DIRECTING THE JURY ADMINISTRATOR TO RELEASE THE NAMES, ADDRESSES AND OCCUPATIONS OF THE JURY POOL SCHEDULED TO APPEAR FOR JURY SELECTION ON 2/1/12 IS DENIED. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 1/25/12. 1/25/12 ENTERED AND COPIES E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_________________________________________
:
NICOLE LaBAR, a Minor, by KELLI LaBAR and :
WILLIAM LaBAR, Parents and Guardians
:
:
Plaintiffs
:
:
vs.
:
CIVIL ACTION NO. 10-1108
:
MARIAN McDONALD, M.D.;
:
ST. LUKE’S PHYSICIAN GROUP, INC., formerly :
known as St. Luke’s Health Services, Inc., doing :
business as Keystone Surgical Associates; and
:
ST. LUKE’S HOSPITAL OF BETHLEHEM, PA, :
trading as St. Luke’s Hospital and Health Network :
:
Defendants
:
_________________________________________ :
Henry S. Perkin, M.J.

January 25, 2012
MEMORANDUM

This matter is before the Court on Plaintiffs’ Motion for an Order Directing the
Jury Administrator to Release the Names, Addresses, and Occupations of the Jury Pool
Scheduled to Appear for the February 1, 2012 Jury Selection, which motion was filed January 23,
2012. Defendants’ Response to Plaintiff’s Motion for an Order Directing the Jury Administrator to
Release the Names, Addresses, and Occupations of the Jury Pool Scheduled to Appear for February
1, 2012 Selection was filed January 24, 2012. Having reviewed the contentions of the parties, the

Court is prepared to rule on this matter.
I.

BACKGROUND
On June 28, 2007, defendant Dr. Marian P. McDonald performed a laparoscopic

cholecystectomy on plaintiff Nicole LaBar at defendant St. Luke’s Hospital. During surgery,

plaintiffs allege that Dr. McDonald and/or her assistant resident physician placed three surgical
clips in such a manner that they impinged on Nicole LaBar’s common bile duct. Plaintiff Nicole
LaBar was subsequently transferred to Children’s Hospital of Philadelphia (“CHOP”) where on
July 2, 2007 she underwent exploratory laparotomy with resection of the common bile duct and a
Roux-en-Y hepaticojejunostomy. Plaintiffs brought this cause of action against defendants
alleging that Dr. McDonald and/or her assistant resident physician deviated from the standard of
care when they placed three surgical clips on Nicole LaBar’s common bile duct.
Plaintiffs seek an Order directing the jury administrator to release the names,
addresses, and occupations of the jury pool scheduled to appear for February 1, 2012, which is
the date selected for jury selection in this matter. Plaintiffs aver that the policy of the United
States Court of Appeals for the Third Circuit is one of openness permitting the disclosure of the
names of the jury pool to undercover bias, relying on United States v. Wecht, 537 F.3d 222, 239
(3d Cir. 2008). Plaintiffs assert that pursuant to 28 U.S.C. § 1867(f) and Wecht, this Court must
permit them to inspect the jury pool records and documents for the purpose of investigating the
need to challenge the jury selection process.
Defendants filed a response to plaintiffs’ motion indicating that while they did not
object, it appears that in accordance with the local rules of civil procedure, plaintiffs’ request is
untimely.
II.

DISCUSSION
Rule 48.1 of the Rules of Civil Procedure for the United States District Court for

the Eastern District of Pennsylvania provides in pertinent part that: “Every challenge to the array
of jurors shall be made at least fourteen (14) days before the first day of the trial period for which
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the jurors have been summoned.” E.D.Pa.R.Civ.P. 48.1. The comment to Local Rule 48.1
provides that “[i]f the case is drawn from a regular jury pool, the challenge must therefore be
filed 14 days before the pool is called. . . .” See Comment 1.a. Jury selection in this matter is
scheduled for February 1, 2012. Plaintiffs filed their motion on January 23, 2012. Pursuant to
Local Rule 48.1, however, plaintiffs’ challenge to the array of jurors was required to be filed by
January 18, 2012. It is untimely.
Even if we were to consider plaintiffs request timely, plaintiffs’ motion would
nonetheless be denied. Plaintiffs’ reliance on United States v. Wecht, 537 F.3d 222 (3d Cir.
2008) does not comport with the facts of this case1 and does not support plaintiffs’ argument that
they are entitled to the information they seek. In the Wecht case, after the district court
announced that it would not be releasing the names of jurors, the media-intervenors2 filed a
petition objecting to an anonymous jury. In so doing, the media-intervenors relied primarily on
arguments that the First Amendment creates a right of access that requires disclosure of the
names of both trial jurors and prospective jurors prior to the empanelment of the jury and the
conducting of voir dire in open court. Wecht, 537 F.3d at 233, 235. Ultimately, the mediaintervenors prevailed in that the Third Circuit recognized a rebuttable presumption rooted in the
First Amendment that jury selection is a public process and extended this presumption to
1

This matter is clearly distinguishable from the W echt prosecution case. This is a civil medical
malpractice case, as opposed to a criminal prosecution case. United States v. W echt, 537 F.3d 222 (3d Cir. 2008).
Neither plaintiffs nor defendants are public figures whereas Dr. W echt is the former Allegheny County Coroner and
a nationally recognized forensic pathologist. Id. In addition, to this Court’s knowledge, there has been no recent
press coverage of this case. In contrast, the W echt case was often debated in the media including claims by Dr.
W echt that the prosecution was politically motivated. Based on the substantial press coverage, the Honorable
Arthur J. Schwab ordered that 400 jurors be summoned for the trial and employed the use of questionnaires. W echt,
537 F. 3d at 225. Those unique circumstances are not present in this case.
2

The media-intervenors were W PXI, Inc, Tribune-Review Publishing Company and PG Publishing
Company d/b/a Pittsburgh Post-Gazette.

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encompass the jurors’ names. Wecht, 537 F.3d at 238-239. In allowing the jurors’ names to be
released, the Third Circuit determined that there was insufficient evidence of threats or
harassment to jurors sufficient to overcome the presumption. Wecht, 537 F.3d at 242.
As is clear, the Wecht case involved a high profile criminal prosecution in which
the media intervened in an effort to obtain the names of both trial and prospective jurors. Such is
not the case here. Accordingly, plaintiffs reliance on the Wecht case is misplaced. This Court is
not aware of, nor have plaintiffs identified, any cases in which the parties to a civil case such as
this litigated a claim for disclosure of information pertaining to the jury pool.
We note, however, that despite our denial of plaintiffs’ motion at this time,
plaintiffs will actually be provided with more information than they currently seek at the time of
jury selection on February 1, 2012. This Court has learned, through conversations with the Jury
Administrator, that 300 jurors have been summoned for jury duty on February 1, 2012.3 Of those
jurors summoned, thirty prospective jurors will be randomly selected by the Jury Management
System (“JMS”) utilized by this District on the morning of February 1, 2012 and from those
thirty prospective jurors, a jury will be selected by counsel for this case. Once the JMS has
randomly selected the thirty prospective jurors, all counsel will be provided with a computer
print-out relative to those thirty prospective jurors. This computer print-out will contain the
following information for each of the thirty prospective jurors: name, juror number, occupation,
age, marital status, spouse’s occupation (if applicable), and county in which they reside.
Accordingly, plaintiffs will ultimately be provided with the information that this Court believes

3

The number of jurors summoned for February 1, 2012 may be reduced depending on case flow, i.e.
depending on how many juries will be needed, but the final determination as to jurors summoned will not be
available until late in the day on January 31, 2012.

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they currently seek.
For the foregoing reasons, we deny plaintiffs’ motion for an order directing the
jury administrator to release the names, addresses and occupations of the jury pool scheduled to
appear for jury selection on February 1, 2012.
An Order consistent with this Memorandum follows.

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