Grimstead v. Brockington

• Decision Date: 17 December 2010
• Docket Number: No. 130, Sept. Term, 2007.,130, Sept. Term, 2007.
• Citation: 417 Md. 332,10 A.3d 168
• Parties: Joyce GRIMSTEAD v. McNeal BROCKINGTON.
• Court: Maryland Court of Appeals

10 A.3d 168

417 Md. 332

Joyce GRIMSTEAD

v.McNeal BROCKINGTON.

No. 130, Sept. Term, 2007.

Court of Appeals of Maryland.

Dec. 17, 2010.

Benjamin Rosenberg (Andrew H. Baida of Rosenberg, Martin, Greenberg, LLP, Baltimore, MD; Gary A. Wais of Law Offices of Gary A. Wais, Owings Mills, MD), on brief, for petitioner/cross-respondent.

Jessica L. Ellsworth (Hogan & Hartson LLP, Washington, D.C.; Mark D. Gately

of Hogan & Hartson LLP, Baltimore, MD), on brief, for respondent/cross-petitioner.

Argued before HARRELL, BATTAGLIA, GREENE, JOHN C. ELDRIDGE (Retired, Specially Assigned), LAWRENCE F. RODOWSKY (Retired, Specially Assigned), IRMA RAKER (Retired, Specially Assigned), and ALAN WILNER (Retired, Specially Assigned), JJ.

JOHN C. ELDRIDGE (Retired, Specially Assigned), J.

This is a medical malpractice action in which the plaintiff, Joyce Grimstead, was awarded $1,959,195, based on the failure of the defendant, Dr. McNeal Brockington, to correctly diagnose and treat her cancer. At the conclusion of the evidentiary portion of the trial, the judge instructed alternate jury members to attend the jury deliberations without participating. During jury deliberations, two of the original jury members were excused for medical reasons, and the trial judge substituted two alternates for the original jury members. The Court of Special Appeals reversed the judgment of the trial court, and remanded the case for a new trial, holding that the trial judge erred by having alternate jurors attend the jury deliberations and by substituting two alternate jurors for two original jurors. We shall affirm the decision of the Court of Special Appeals.

I.

The issues before us in this case are procedural, concerning the jurors at the trial and the substitution of a party during appellate proceedings. Consequently, we shall set forth the facts pertinent to those issues.

The case originated in the Circuit Court for Baltimore City as a medical malpractice action brought by Joyce Grimstead against Dr. McNeal Brockington. After a jury trial lasting six days, the jury found that Dr. Brockington negligently failed to diagnose and treat Ms. Grimstead for cancer of the retroperitoneum throughout a five-year period during which she was under his care. By the time another physician correctly diagnosed her condition, the cancer had progressed greatly, leaving Ms. Grimstead with a substantially shortened life expectancy.

The jury returned a verdict in favor of Ms. Grimstead, awarding her $4,414,195, which included $3,000,000 in non-economic damages. The trial court reduced the noneconomic damages award to $545,000, limiting Ms. Grimstead's total judgment to $1,959,195.

Before the jury had been selected in this case, the trial judge had sought an agreement from the parties that, if necessary, they would accept a verdict from five jurors. Brockington's counsel declined to accept such a verdict, instead demanding a unanimous verdict from all six jurors.

As voir dire proceeded, the trial judge noted that Grimstead's lawyer had peremptorily challenged "the first five whites on the panel" and the judge stated that he was not "going to allow that." Grimstead's counsel then attempted to justify the exercise of each of his peremptory strikes, putting on the record his reason for each strike, but Brockington's counsel made a Batson challenge, arguing that Grimstead's counsel had given dubious justifications for his strikes.¹ In response to this argument, the judge found that one juror had been unjustifiably stricken but that the other strikes had been used lawfully. The judge stated

"With respect to Juror Number 263, I find plaintiff's reasons [for striking] have no merit whatsoever. * * * [A]nd I also point out that two of the plaintiff's challenges were also two of the defendant's challenges—I am going to proceed with this case. As a matter of fact, three of the defense challenges and the plaintiff's challenges are of identical jurors.

"So with that, I'm going to proceed. I'll note your exception in light of the Batson matters and I will overrule them."

The judge then seated the jury except for juror number 263 who was excluded. Since it was the end of the day, the jury was released but not sworn. Once the jury had been excused, Brockington's counsel complained to the court as follows:

"Your Honor found that the strike by the plaintiff of juror number 263 was, in fact,—I think the term the court used was 'specious'—the explanation for the strike. My assumption was Your Honor was essentially going to overrule thestrike based upon that finding. And I noted that the court did not seat that juror, in effect sustaining the strike, the peremptory challenge by the plaintiff, which the court specifically found as a matter of fact to be specious.

"We would respectfully object to that and just emphasize for the record that that is inconsistent with the court's ruling, we believe."

The judge acknowledged that the "point is very well taken" but stated that he did not "like to seat a juror once that juror has been struck." At this point, Grimstead's counsel interjected:

"Your Honor, I just want to be clear. I have stated my reasons on the record. But given what [defense counsel] has just said, and given what you have said at the bench, Your Honor, to go through a trial like this and to have this hanging over our heads, to me, is a waste of judicial economy, if I may be blunt. I would request that we just get a new panel and start fresh and not have this appeal hanging over our heads."

The judge asked Brockington's counsel if he would waive any issues on appeal that had arisen during the jury selection, and Brockington's counsel stated that he was "certainly ... not in a position to waive any potential appellate issues at this time." The issue was not resolved, but the judge recessed stating his understanding that "[w]e will see where we are" the following morning.

The next day the judge informed the attorneys that he had asked one of his clerks to "grab" juror 263 before the juror left and instruct the juror to return the following day. The judge also informed counsel of his belief that there was a problem with another juror, alternate number one. The judge said that "alternate number one seems to have some real issues about what she really understands," and the judge noted that his clerk "had some real questions about what this woman really understood and comprehended." The judge then invited comment from the attorneys, noting that "we have options now" and that "if need be, [juror 263] wouldbecome juror number four. And we could just move them, bump them all down." Grimstead's counsel again explained each of his peremptory strikes, stating that, "in regards to ... juror number 263, I am not willing to accept him to come back onto this jury. I don't believe it's appropriate at this point." After both parties renewed their Batson arguments, the judge decided that "I'm going to have to seat this juror [number 263], in light of my factual findings." Over plaintiff's objections, juror number 263 was seated as juror numberfour, and the other jurors were moved sequentially down the list.

During the course of the trial, alternate juror number three and juror number one were excused for cause by the court. An alternate juror was substituted for juror number one. At the close of the evidence, six jurors and two alternates remained. The trial judge then instructed counsel as follows:

"THE COURT: I think tomorrow I am still going to have the two alternates just sit without participating in the discussion and if we need one, we [can substitute]. If we don't, so be it. If any of you have any vigorous objection to that, let me know now.

"PLAINTIFF'S COUNSEL: I have a vigorous objection, Your Honor.

"THE COURT: You do?

"PLAINTIFF'S COUNSEL: Yes.

"THE COURT: To sitting in, but not participating in the discussion?

"PLAINTIFF'S COUNSEL: Absolutely. Completely unnecessary. If [all the jurors] return tomorrow, [the alternates] should be dismissed.

"THE COURT: You know, I've had a medical malpractice case involving one of the [defense] attorneys here where the jury deliberated for five days, and I worry about situations like that in setting the stage. If you can come in with some authority tomorrow morning, I'll entertain it. I've done this in several other cases and no one's ever objected to having the [alternate] jurors sit in—my jury room is rather large—have the two alternates sit somewherein the corner, just sit there and not participate in the discussion in the event that one of them was pressed into service. So we will see where we are [tomorrow]."

The following day the judge again raised the issue of the alternates sitting in the jury room while deliberations were ongoing, and explained:

"Counsel, at the conclusion of yesterday's session, I had indicated I thought it prudent, in light of past experiences, and to avoid potential risk of mistrial, to have the alternates sit in the jury room. My jury room is rather large; sit apart from the jury, and listen to the discussion; don't participate in the discussion, and I think this is a prudent way to proceed, in light of the fact that the Defendant will not go with less than five, and the Plaintiff will not accept the alternate in the panel itself. I think the prudent thing to do, particularly after a trial of this duration and complexity, where we can avoid a potential mistrial, is to have the alternates ready to step in, in the event something comes up. * * * So unless counsel has some authority to the contrary, this is what we are going to do, and I'm willing to entertain any discussion."

Plaintiff's counsel replied that he had not fully researched the issue, but he continued to object to the alternate jurors' presence during deliberations, saying:

"I'm just trying to be pragmatic about this, and I'm thinking how can [the alternate jurors] be sitting in a room, and not participate, and if they are deliberating for hours, they are going to certainly hear

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