Appeal from the Superior Court of the District of Columbia. (Hon. Arthur L. Burnett, Sr., Trial Judge).
Before Terry, Steadman and Schwelb, Associate Judges. Opinion for the court by Associate Judge Steadman. Dissenting opinion by Associate Judge Terry at p. 18.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: Appellee, Mrs. Lisa Buckmon, recovered a judgment of $75,000 against appellant, Safeway Stores, Inc. ("Safeway"), for back injuries she sustained when a candy rack fell on her as she waited in line at one of Safeway's stores. Safeway raises four issues on appeal. First, Safeway alleges that Mrs. Buckmon used peremptory strikes to remove potential jurors on the basis of race and that the court erred in not ordering a mistrial on this ground. Second, Safeway contends that the trial court improperly denied Safeway's motion for a mistrial after the jury heard testimony that Mrs. Buckmon had no medical insurance. Third, Safeway argues that the trial court erred in allowing the jury to hear testimony from Mrs. Buckmon's treating physician, Dr. Quraishi, regarding the cause of Mrs. Buckmon's pain and the possibility of future pain, because those findings were developed solely for purposes of litigation, and as such required inclusion in a statement under Super. Ct. Civ. R. 26(b)(4). Fourth, Safeway contends that the verdict should have been remitted or a new trial granted because the jury verdict was excessive and based upon improper factors. We disagree with each argument and accordingly affirm the judgment.
Mrs. Buckmon and her sister-in-law were shopping at a Safeway store on December 29, 1990. A store employee was moving boxes in the store when the equipment he was using hit the candy rack next to the counter where Mrs. Buckmon was standing in the checkout line. The rack fell and pinned Mrs. Buckmon against the counter. Mrs. Buckmon reported the incident to the individual in the store office before leaving. On August 29, 1991, Mrs. Buckmon filed suit against Safeway, alleging physical injuries resulting from Safeway's negligence.
On March 8, 1993, voir dire was conducted and a jury of eight, two of whom would be alternates, was seated. At three times, both before and after the chosen jury was sworn, the Judge asked whether counsel were satisfied and whether they had any concerns. No racial bias concerns were raised. On March 9, 1993, both counsel were present at the de bene esse video deposition of Mrs. Buckmon's treating physician, Dr. Quraishi. On March 10, 1993, before any evidence was presented, Safeway's counsel "raised the issue" that Mrs. Buckmon's three peremptory strikes were racially based because all three of the potential jurors were white. Safeway did not move for a mistrial. Safeway's counsel represented to the court that the jury consisted of six blacks and two whites, one of the whites being an alternate juror.
The Judge began by asking Mrs. Buckmon's counsel to justify the strikes on the record. Mrs. Buckmon's counsel suggested that Safeway was hoping to get "a free trial" by raising the racial bias issue, waiting for the outcome of the trial, and then appealing if the verdict went against Safeway. Mrs. Buckmon's counsel then conceded error, saying that he did not believe the basis for his first peremptory strike, namely, the potential juror's appearance, would suffice on appeal. He explained:
And, it wasn't because they were white looks, because I just don't like his looks, I just didn't like his looks. And, that's not going to stand up with the Court of Appeals. So, I would suggest, I'm conceding error, I suggest we throw out those jurors and bring in a whole new panel and start over again. If [Safeway's counsel] feels like Safeway's been prejudiced, because they don't have whites, they don't have enough whites on that jury, that's fine. Let's start all over again. But, let's not have a free trial here and see how it works out for Safeway.
The Judge opined that if the strikes were based on "a person's demeanor, manner, how they walk, or that they're unemployed, are they responsible, those are valid reasons counsel can still exercise peremptory challenges," but Mrs. Buckmon's counsel disagreed. The Judge saw no racial bias behind the first peremptory strike after counsel's explanation and asked counsel to give reasons for the other two strikes. Counsel again resisted the inquiry, protesting that his client was "not here to serve as a test case for how we should strike jurors. Like -- I'd just like to start fresh, pick a whole new jury, and we can try this." The Judge noted that a new jury might very well present the same problem so counsel should provide plausible justifications for the other two strikes.
Instead of responding, Mrs. Buckmon's counsel inquired whether Safeway wanted a new panel, suggesting that if it did not, the question was moot. Although the court did not think Safeway would make the motion unless it sought a new jury panel, Mrs. Buckmon's counsel was uncertain. Safeway's counsel said that he had made a prima facie showing of discrimination and it was proper for the court to inquire as to the basis for the strikes, but not necessary for the court to concede error and bring in a new panel. The court then agreed with Mrs. Buckmon's counsel that Safeway's counsel was "trying to have it both ways, and preserve the issue for appeal, too."
At that point, the following Discussion took place:
THE COURT: . . . I'm satisfied with [the justification for peremptory strike] Number One, that it was based on his demeanor, manner, and his deportment, and not based on his race. Now, what about the other two?
[MRS. BUCKMON'S COUNSEL]: Well, Your Honor, I'm going to cut this whole Discussion short, for the reasons I'm articulating. I am not going to have Safeway have it both ways, try the case, be happy, not tell the Judge, not tell the Court they're unhappy with the jury, and then go through trial and then raise it on the Court of Appeals. I struck all three of those people because they were white. THE COURT: So, rather than run the risk of appellate error, you want me to disband this jury? [MRS. BUCKMON'S COUNSEL]: Yes, Your Honor. I and concede error. THE COURT: All right.
Safeway's counsel then asked for costs because Mrs. Buckmon had struck the jurors for racial reasons in deliberate disregard of known law. The court also noted that it might be necessary to refer Mrs. Buckmon's counsel to Bar Counsel because of his admission of racial bias. Mrs. Buckmon's counsel objected, saying that he was in a difficult position because "Safeway hasn't even asked -- hasn't even suggested that they're dissatisfied with the jury panel. So, why is it an issue?" The court then asked for "justification, which is candid, and not just trying to avoid an appeal issue." If Mrs. Buckmon's counsel could give valid race-neutral reasons for the other strikes, the record would be protected, and the case could continue. Mrs. Buckmon's counsel noted that he had created a "horrific record" by saying that he struck the three potential jurors because they were white. The Judge agreed and said that he was uncertain whether the concession was an overreaction or a rebellion against being placed in a difficult situation by Safeway's counsel. Mrs. Buckmon's counsel claimed:
response to the Court that the strikes were racially motivated only, was an attempt on my part, to have the -- to have the Court call a new panel, and start all over again, simply so we wouldn't have this issue before the Court of Appeals, and I apologize to the Court for making that statement, because it really does not reflect I have no racial animosity towards white people, and do not strike them from the jury panel because --
The court stated that Mrs. Buckmon's counsel was white, and the court had known him for five or ten years and had never ...