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IN THE COURT OF APPEALS OF MARYLAND

No. 130 September Term, 2007 _________________________________________

JOYCE GRIMSTEAD v. McNEAL BROCKINGTON

__________________________________________ Harrell Battaglia Greene Eldridge, John C. (Retired, Specially Assigned) Rodowsky, Lawrence F. (Retired, Specially Assigned) Raker, Irma (Retired, Specially Assigned) Wilner, Alan (Retired, Specially Assigned). JJ. __________________________________________ Opinion by Eldridge, J. Harrell, Rodowsky and Raker, JJ., dissent. __________________________________________ Filed: December 17, 2010

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 fiveyear period during which she was under his care. By the time another physician correctly diagnosed her condition, the cancer had progressed greatly, leaving

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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

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Maryland Law