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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 58 September Term, 2006

McNEAL BROCKINGTON v. JOYCE GRIMSTEAD

Eyler, De borah S ., Adkins, Krauser, JJ.

Opinion by Eyler, Deborah S., J.

Filed: September 7, 2007

In the Circuit C ourt for B altimore C ity, Joyce Grimstea d, the appellee/cross-appellant, brought a medical malpractice action against McNeal Brockington, M.D., the appellant/cross-appellee. The case was tried to a jury for six days and resulted in a verdict for Grimstead in the amount of $4,414,195, including $3,000,000 for non-e conomic damages. On a motion for remittitur, the non-economic damages award was reduced to $545,000, for a total judgment of $1,959,195. The parties noted a timely appeal and cross-appeal, posing two questions for review, which we have rephrased as: By Brockin gton: I. Did the trial court commit reversible error by allow ing two alte rnate jurors to attend jury deliberations and then substituting the alternates for two regular jurors during the deliberations?

By Grim stead: II. Did the circuit court err in the amount by which it reduced the jury's award of non-economic damag es?

We answer Brockington's question in the affirmative and therefore shall reverse the judgment and remand the case to the circuit court for further proceedings. Our disposition of that question obviates the need to address Grimstead's question. FACTS AND PROCEEDINGS On Novembe r 14, 2003 , Grimstead filed suit aga inst Brock ington, allegin g that he negligently failed to diagnose and treat her cancer of the retroperitoneum1 during the five-

The "retroperitoneum" is the posterior portion of the abd omina l cavity. S TEDMAN'S M EDICAL D ICTIONARY 1456, 1686 (28 th ed. 2006).

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year period in which he was her primary ca re physician. W hen Grim stead's cance r eventually was diagnosed by another physician, in November of 2002, her prognosis was extremely poor and her probable life expectancy was short. Because the issues on appeal are proced ural, we shall not give a detailed recitation of the facts that gave rise to the malpractice allegations. Grimstead prayed a jury trial. The case came on for trial and jury selection began on November 1, 2005. After voir dire, but before sele ction of the jury, the judge d iscussed w ith counsel the number of alternates and the size of the jury, and asked whether they would consent to a verdict from five jurors if circumstances so required. Counsel for Grimstead consented but Brock ington's cou nsel did no t. The judge reviewed counsel's peremptory strikes and expressed concern that Grimstead's lawyer had " manage d to challenge . . . the first five whites on the panel." He noted that the rema ining availab le jurors all we re African -America n and told counsel he was not "going to allow that." Brockington's lawyer interposed a Batson challenge.2 Counsel for Grimstead pu t on the record his reasons for each peremptory strike. The court found that the reasons given for striking one potential juror were improper, in that they were based on gender, and the reasons given for striking another potential juror, number 263, were "absol utely spec ious." 3 It also found, however, that Brockington's lawyer had stricken

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Batson v. Kentucky, 476 U.S. 79 (198 6).

Potential juror num ber 2 63 w as a m usician. G rims tead 's lawyer explained that, while he usually finds musicians to be "fai rly liberal whe n it comes to verdicts[,]" b ecause this musician was a member of an orchestra - a "structured, well organized unit or team" - he might b e more sympath etic to a p hysician w ho also functio ned as p art of a te am. -2-

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three of the same five potential jurors. On that ground, the court seated the jury, but reserved swe aring in the ju rors until the f ollowing day. The next morning, the court told counsel that it had "secured [potential juror number 263]" and that, if they needed to "cure that issue," he could be seated as "Juror Num ber Four. Then they would all be bumped down by one." After further discussion with counsel about Grim stead's asserted reasons for striking each of the five jurors, the court made a finding that potential juror number 263 was improperly stricken by Grimstead's counsel and that the most appropriate remedy w as to seat him as Juror Numb er 4. The court did so, ov er Grimstead's objection. The originally seated Juror Number 4 became Juror Number 5, and so forth. The resulting jury consisted of six regular jurors and four alternate jurors.4 The jury was sworn and trial commenced. On Novemb er 9, 2005, at the close of all the ev idence, six regular jurors and two alternate jurors remained.5 Late r that day, after closing arguments, the court sent the regular jurors and the alternates hom e for the evening, and instructed all of them to return in the morning. The court and counsel then had the following discussion about the alternate jurors:

Because four alternates were selected, rather than the three originally contemplated, each party was entitled to one additional peremptory challenge under Rule 2-512(h). The parties e ach w aived th is additio nal cha llenge. Alternate Juror Number 3 was excused on November 2, 2005, because her employer would not com pensat e her fo r jury duty, ca using g reat eco nomic hardsh ip. Juror Number 1 was excused on November 4, 2005, after she alerted the court that her supervisor was present in the courtroom as a supporter of Grimstead. She was replaced by the pers on then design ated as A lternate J uror N umbe r 1. -35

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THE COURT: Counsel, 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 do. If we don't, so be it. If any of you have any vigorous o bjection to tha t, let me k now n ow. [COU NSEL F OR PL AINTIFF ]: I have a vigorous ob jection, Your Hon or. THE COU RT: You do? [COUN SEL FOR PLAINTIFF ]: Yes. THE COU RT: To sitting in, but not participating in the discussion? [COUNSEL FOR PLA INTIF F]: Ab solutely. C omple tely unne cessary. 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 situatio ns like that in setting the stage . If you can co me in with some authority, tomorrow morn ing 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

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