In Brockington v. Grimstead, 176 Md. App. 327 (2007), the Maryland Court of Special Appeals considers a bizarre set of facts involving juror deliberations. The underlying action is a Maryland medical malpractice case in Baltimore tried before now retired Judge Thomas E. Noel for failure to diagnose cancer. The jury awarded $4,414,195, including $ 3,000,000 for non-economic damages, or $1,959,195 once the award was reduced consistent with the cap on non-economic damages.
The issue on appeal involved the judge’s decision to include alternates in the jury room. Judge Noel, over strenuous objection from the plaintiff’s lawyer,seated for deliberations six regular jurors and two alternates who were instructed to remain silent during deliberations. Later, when two ostensibly pro-defendant jurors backed off the jury, the defendant’s malpractice lawyer flip flopped and withdrew his consent to the substitution, an objection he apparently repeated about 5 million times over the course of the deliberations.
The issue was whether the Defendant waived his right to complain when he agreed to let the alternate jurors sit in on the deliberations. The Plaintiff argued that the substitution of an alternate juror for a regular juror is forbidden once the regular jurors have retired to deliberate. In other words, the malpractice defendant cannot un-ring the bell by withdrawing his consent when the logical conclusion of his agreement did not go his way. Plaintiff’s attorney further contended that because there was consent to the alternate process, the trial court’s rulings should be evaluated for abuse of discretion, not the obvious legal error.
The Maryland Court of Appeals will be hearing the appeal of this case later this year. I find it difficult to believe that this lawyer did not waive his right to complaint when he consented to this procedure that admittedly violated the Maryland Rules. We will see what the Court of Appeals does with it.
Update: The Maryland high court affirmed the ruling 4-3.