Corman Marine Const. v. McGeady ( 2024 )

Corman Marine Construction, Inc., et al. v. Matthew F. McGeady, et al., No. 1452,
September Term, 2023. Opinion by Ripken, J.
WORKERS’ COMPENSATION – LONGSHORE AND HARBOR WORKERS’
COMPENSATION ACT – DUAL STATUS OF OWNER AND EMPLOYER
Under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a dual
capacity employer-vessel is liable to its covered employees only to the extent it breached
its duties of care in its capacity as a vessel and cannot be held liable in tort due to negligence
committed in its capacity as an employer. 33 U.S.C. § 905.
WORKER’S COMPENSATION – LONGSHORE AND HARBOR WORKERS’
COMPENSATION ACT – DUAL STATUS OF OWNER AND EMPLOYER
A dual capacity employer-vessel is not liable to a covered employee under the LHWCA
merely due to the presence of an agent or officer of a dual capacity defendant, absent
evidence that the agent or officer was representing the dual capacity defendant specifically
in its capacity as a vessel. 33 U.S.C. § 905(b).
MARYLAND RULES – DISCRETION OF COURT– CONTROL OF CASE
PRESENTATION
Maryland Rule 5-611(a) grants a trial court broad discretion in exercising reasonable
control over the mode and order of interrogating witnesses and presenting evidence. In the
interest of ensuring the presentation is effective for the ascertainment of truth or in order
to avoid the needless consumption of time, a trial court may properly impose time limits
on the cross-examination of witnesses.
Circuit Court for Baltimore City
Case No. 24-C-19-006335
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1452
September Term, 2023
______________________________________
CORMAN MARINE CONTRUCTION, INC.,
ET AL.
v.
MATTHEW F. MCGEADY, ET AL.
______________________________________
Ripken,
Albright,
Wright, Alexander, Jr.,
(Senior Judge, Specially Assigned)
JJ.
______________________________________
Opinion by Ripken, J.
______________________________________
Filed: August 1, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2024.08.01
15:07:21 -04'00'
Gregory Hilton, Clerk
This case arises from a workplace accident in which Matthew McGeady
(“McGeady”) was injured while working aboard the Xavier, a floating crane barge owned
jointly by his employer, Corman Marine Construction, Inc., and two related companies
(collectively “Corman”). Subsequent to the accident, McGeady and his wife (collectively
“Appellees”), filed suit in the Circuit Court for Baltimore City asserting damages pursuant
to the Longshore and Harbor Workers’ Compensation Act. At the conclusion of trial, a jury
found Corman liable, and awarded Appellees damages for lost wages, medical expenses,
pain, and loss of consortium. Corman noted this timely appeal. For the reasons to follow,
we reverse the judgment of the trial court.
ISSUES PRESENTED FOR REVIEW
Corman presents the following issues for our review, which we have condensed and
rephrased as follows: 1
I. Whether the court erred by declining to grant Corman’s motion for judgment
on Appellees’ claim asserting negligence of a vessel.
II. Whether the court erred by imposing a time limit on the cross-examination
of a witness.
1
Condensed and rephrased from:
1. Was Corman entitled to judgment as a matter of law on the McGeadys’ claim
for “negligence of a vessel” under 33 U.S.C. § 905?
2. Did the trial court exceed its Rule 5-611(a) authority or abuse its discretion when
on Day 8 it cut off Corman’s examination of Mr. McGeady–based on its own
assessment of disputed expert testimony–one hour after imposing a strict time
limit and declining to give the instruction that facilitated the examination on Day
7?
DISCUSSION
I. THE CIRCUIT COURT ERRED IN CONCLUDING THAT THE RECORD CONTAINED
EVIDENCE SUFFICIENT TO SUPPORT A CLAIM FOR NEGLIGENCE OF A VESSEL
UNDER 33 U.S.C. § 905(b).
A. Factual Background
In December of 2016, during the course of his employment with Corman, McGeady
suffered a serious injury. At the time of the injury, Corman owned and operated the Xavier,
a floating crane barge which was moored to the bed of the York River in Virginia and
constituted a stationary work platform. On the date of the incident, the Xavier was serving
as the staging area for a construction project to install a sewer pipe in the York River. The
day of McGeady’s injury, Martin Corcoran (“Corcoran”), the president of Corman Marine
Construction and the person in charge of the sewer pipe project, traveled to the Xavier.
Corcoran went with the goal of speeding up the process of sinking the pipe, which had
delayed the venture. At that time McGeady and at least one other coworker, the project
foreman, were present on the Xavier.
The pipe had a pocket of pressurized air trapped within it, which required venting
prior to the sinking of the pipe. On the day of the incident, one end of the pipe was on the
shore and the other end was resting on the Xavier. The end of the pipe that was on the
Xavier contained a pneumatic plug which, when activated, would expel the pressurized air
inside of the pipe. Corcoran, who appeared to be agitated and hurried, ordered the
construction foreman to remove the plug. Prior to giving this instruction, Corcoran had not
read the plug’s safety manual, did not establish a safety zone, and did not instruct any of
the Corman employees where to be located during the procedure. Upon the foreman
2
removing the pressurized plug, the plug exploded out of the pipe, hitting the foreman in
the chest, and knocking him backward into McGeady. McGeady was thrown to the ground
and struck his head on the deck of the Xavier. He suffered a traumatic brain injury which
required emergency surgery. The United States Coast Guard responded to the scene, and
subsequently turned the investigation of the incident over to the Occupational Safety and
Health Administration (“OSHA”). As a result of that investigation, OSHA generated a
report indicating that Corman did not provide McGeady with safe working conditions. The
OSHA report was admitted into evidence.
Following the workplace accident, McGeady applied for and received no-fault
benefits under the federal Longshore and Harbor Workers’ Compensation Act (“LHWCA”
or “the Act”). 2 Subsequently, Appellees brought an action against Corman for negligence
pursuant to section 905(b) of the LHWCA. 3 A jury trial commenced. At the conclusion of
evidence, Corman made a motion for judgment as a matter of law, asserting that Appellees
had failed to introduce evidence by which a jury could conclude that Corman’s negligence
2
As we shall explain infra, a worker injured aboard a vessel who receives no-fault benefits
pursuant to the LHWCA is typically precluded from pursuing a negligence claim against
their employer. See 33 U.S.C. § 905(a). They may, however, bring a tort claim against the
owner of the vessel for injury “caused by the negligence of a vessel[.]” Id. at § 905(b).
Under the ‘dual capacity’ exception, where the employer and the vessel owner are one and
the same, an injured worker may assert a claim against the employer/vessel owner
notwithstanding the employee’s recovery of no-fault benefits if the injury was caused by
the negligence of the vessel. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523,
528–32 (1983).
3
Although McGeady’s injury took place in Virginia waters, Appellees elected to file suit
in Baltimore City, a venue where Corman regularly conducted business. See § 6-201(a) of
the Courts and Judicial Proceedings of the Maryland Code. Appellees also initially brought
a claim under the Jones Act, 46 U.S.C. § 30104, which was later dismissed.
3
arose out of its vessel operations. The court denied the motion. In so doing, the court noted
that the record included the OSHA report, a stipulation that the Xavier was a vessel for the
purposes of the Act, and that Corcoran, the president of Corman Marine Construction, was
present on the vessel at the time of the accident.
Following the parties’ closing arguments, the court instructed the jury. During the
instructions the court informed the jury that under the LHWCA:
A longshoreman and/or harbor worker is permitted to file a third party action
against his employer if that employer is also the owner of the vessel and a
longshoreman [and/or] harbor worker is injured due to the negligence of the
vessel and those in charge of it, such as agents and operators of the owner of
the vessel.
This is known as dual capacity employment. A longshoreman and/or harbor
worker cannot maintain a third party action against his employer if any
negligence resulted solely from defendant[’s] duties as the . . . employer
rather than by defendant’s duties as the vessel owner through the agents and
operators of the vessel owner.
The court also instructed the jury that in order to prevail in their action, Appellees
would need to prove that “the injury to Mr. McGeady was caused by the negligence of the
vessel as described by case law, interpreting Section 905(b), thereby permitting a third
party action.” The court did not provide a definition of “negligence of the vessel” nor did
it articulate how “duties as a vessel owner” are distinct from duties as an employer.
The verdict sheet reflected the jury’s finding that “the negligence . . . was
attributable to the vessel and those in charge of it[,]” and the jury awarded Appellees
damages totaling $8,687,233.19. Corman made a motion for judgment notwithstanding the
verdict and/or new trial, which was denied by the court. Additional facts will be included
as they become relevant to the issues.
4
B. The Parties’ Contentions
Corman asserts that the court erred in failing to grant its motions for judgment and
judgment notwithstanding the verdict, as Appellees failed to make a valid claim for
“negligence of a vessel” under the LHWCA. Corman argues that although the Act allows
an injured worker to maintain a negligence action against a dual capacity employer
specifically in its capacity as vessel owner, Appellees failed to adduce evidence sufficient
to allow a jury to determine that the injury occurred due to negligence in Corman’s vessel
capacity, as opposed to in its capacity as an employer. While Corman does not dispute that
negligence occurred, it argues that McGeady’s injury was solely the result of construction
activities undertaken in Corman’s capacity as an employer, and unrelated to the
seaworthiness of the vessel.
Appellees disagree and urge this Court to affirm the denial of the motion for
judgment and motion for judgment notwithstanding the verdict. They argue that the trial
record contained evidence sufficient to allow a reasonable jury to determine that
McGeady’s injury occurred due to Corman’s negligence as a vessel. Specifically,
Appellees assert that the injury occurred while on a Corman-owned vessel, under the
direction of a Corman employee, and during a project intended to further Corman’s
corporate interest. Thus, Appellees posit that, in the light most favorable to them, Corman’s
negligence can be attributed to Corman in its role as vessel owner.
C. Standard of Review
We review de novo the court’s denial of Corman’s motion for judgment. See Scapa
Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 (2011). In so doing, we evaluate “the
5
evidence and reasonable inferences drawn from it in the light most favorable to the non-
moving party.” Wallace & Gale Asbestos Settlement Tr. v. Busch, 464 Md. 474, 486 (2019)
(internal brackets, quotation marks, and citation omitted). We reverse a trial court’s denial
of a motion for judgment notwithstanding the verdict only where “the facts and
circumstances permit but a single inference as relates to the appellate issue presented.”
Exxon Mobil Corp. v. Albright, 433 Md. 303, 333 (2013) (quoting Jones v. State, 425 Md.
1, 31 (2012)) (internal quotation marks omitted).
In the absence of controlling caselaw, in order to determine the application of a
federal statute this Court likewise applies de novo review to ascertain the legislative intent
in enacting the statute. See Wheeling v. Selene Fin. LP, 473 Md. 356, 373 (2021); see also
Pope v. State, 284 Md. 309, 320 n.10 (1979); Henry v. Gateway, Inc., 187 Md. App. 647,
664 (2009). Our primary purpose in interpreting statutory language is to “discern the
legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory
provision under scrutiny.” Lockshin v. Semsker, 412 Md. 257, 274 (2010) (citations
omitted). In so doing, our analysis begins by “look[ing] to the normal, plain meaning of
the language of the statute”; however, “[o]ur inquiry is not confined to the specific statutory
provision at issue on appeal. Instead [t]he plain language must be viewed within the context
of the statutory scheme to which it belongs[.]” Westley v. State, 251 Md. App. 365, 386–
87 (2021) (quoting Berry v. Queen, 469 Md. 674, 687 (2020)) (internal quotation marks
omitted). “That context may include the statute’s ‘relationship to earlier and subsequent
legislation, and other material that fairly bears on the fundamental issue of legislative
purpose or goal, which becomes the context within which we read the particular language
6
before us in a given case.’” Id. at 387 (quoting Berry, 469 Md. at 687).
D. The Longshore and Harbor Workers’ Compensation Act
Originally enacted by Congress in 1927, the federal LHWCA, codified as 33 U.S.C.
§ 901 et seq., created a compensation scheme intended to benefit maritime workers injured
while working in the navigable waters of the United States for whom recovery was
unavailable through state workers’ compensation statutes. Hill v. Knapp, 396 Md. 700, 706
(2007). The LHWCA guarantees an injured worker covered by the Act a specified amount
of compensation, regardless of whether the injury was caused by the employer’s
negligence. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 528–29 (1983).
In return for a “certain and prompt recovery for claims against employers” the Act
exacted “trade-offs” from employees. Stanley v. W. Md. Ry. Co., 301 Md. 204, 207 (1984).
Specifically, while the Act allows employees to recover for workplace injuries irrespective
of an employer’s negligence or an employee’s own fault, the LHWCA was intended to be
the exclusive remedy for occupational injury. Id.; see also 33 U.S.C. § 905(a) (“The
liability of an employer [under the Act] shall be exclusive and in place of all other liability
of such employer to the employee[.]”). Through the Act’s passage, Congress sought to
“balance [] difficult policy questions” by permitting employees to avoid “the burden of
maintaining costly litigation and run the risk of receiving no remuneration[,]” while at the
same time capping limits on liability for employers. Stanley, 301 Md. at 213.
Although the Act explicitly precluded an injured employee from seeking additional
remedies from their employer, it did allow for covered employees to pursue tort actions
7
against a third-party vessel, or the vessel’s owners, for negligence. 33 U.S.C. § 905(a)-(b). 4
However, in both allowing third-party negligence suits against vessels, and mandating
no-fault recovery as the exclusive remedy against employers, the Act did not facially
address situations where the vessel owner and the employer are the same entity, a status
referred to as dual capacity. See Jones & Laughlin Steel Corp., 462 U.S. at 528–32; see
also Bush v. Eagle-Picher Indus., Inc., 927 F.2d 445, 449 (9th Cir. 1991). Addressing the
ambiguity, the Supreme Court of the United States determined that a plaintiff could only
maintain a tort action against a dual capacity employer pursuant to section 905(b) of the
LHWCA, notwithstanding the employee’s no-fault recovery under section 905(a) the Act,
if the injury occurred due to the defendant’s negligence in its capacity as a vessel, and not
4
In full, the portion of the Act concerning “negligence of a vessel” states:
In the event of injury to a person covered under this chapter caused by the
negligence of a vessel, then such person, or anyone otherwise entitled to
recover damages by reason thereof, may bring an action against such vessel
as a third party in accordance with the provisions of section 933 of this title,
and the employer shall not be liable to the vessel for such damages directly
or indirectly and any agreements or warranties to the contrary shall be void.
If such person was employed by the vessel to provide stevedoring services,
no such action shall be permitted if the injury was caused by the negligence
of persons engaged in providing stevedoring services to the vessel. If such
person was employed to provide shipbuilding, repairing, or breaking services
and such person's employer was the owner, owner pro hac vice, agent,
operator, or charterer of the vessel, no such action shall be permitted, in
whole or in part or directly or indirectly, against the injured person’s
employer (in any capacity, including as the vessel's owner, owner pro hac
vice, agent, operator, or charterer) or against the employees of the employer.
The liability of the vessel under this subsection shall not be based upon the
warranty of seaworthiness or a breach thereof at the time the injury occurred.
The remedy provided in this subsection shall be exclusive of all other
remedies against the vessel except remedies available under this chapter.
33 U.S.C. § 905(b).
8
because of a breach of the defendant’s duties in its capacity as an employer. Jones &
Laughlin Steel Corp., 462 U.S. at 528–32; see also Peter v. Hess Oil V.I. Corp., 903 F.2d
935, 948 n.13 (3d Cir. 1990). Notably, to date, neither the Supreme Court of the United
States nor Maryland’s appellate courts have outlined specific factors delineating vessel
negligence from employer negligence in dual capacity cases brought under 33 U.S.C. §
905(b).
Examining the legislative history of the Act, we note that Congress has twice
amended the LHWCA from its original form. Prior to the first amendment of the Act, “the
exclusivity of the employer’s liability under section 905 had been severely undermined as
a result of two Supreme Court decisions.” 5 Gravatt v. City of New York, 226 F.3d 108, 116
(2d Cir. 2000) (citation omitted). By amending the LHWCA in 1972, Congress “made
substantial changes to this framework.” Id. The 1972 amendments “substantially
increased” the statutory compensation to injured workers but eliminated workers’ ability
to recover from a vessel under the strict-liability doctrine of unseaworthiness; a vessel
owner’s right to indemnity from the employer was likewise precluded. Id. (citations
5
The two cases were Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and Ryan
Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124 (1956). In Sieracki, the Court
determined that vessels were liable to covered employees for injuries arising from a
vessel’s “unseaworthy” condition. 328 U.S. at 94–97. In Ryan Stevedoring Co., the Court
held that a vessel could seek indemnity from the covered employer for the employee’s
injury due to unseaworthiness. 350 U.S. at 132–35. Together, the result of these cases was
that the employer “became indirectly liable in maritime tort to its injured
longshoreman-employee under the no-fault doctrine of unseaworthiness,” despite the Act’s
provision that an employer’s exclusive liability to its injured employee came in the form
of the statutory payments. Gravatt v. City of New York, 226 F.3d 108, 116 (2d Cir. 2000).
“In effect, the injured employee could get tort damages from his employer despite the
statutory proscription against suing his employer directly.” Id.9
omitted). Thus, the sole means of recovery from a vessel was by an employee bringing a
negligence action. Section 905(b) of the Act was again amended in 1984, broadening a
vessel’s immunity from negligence liability for certain classes of employees. Id. at 117. As
such, “Congress clearly intended that the ‘vessel’s liability is to be based on its own
negligence.’” Id. (quoting H.R. Rep. No. 92–1441 (1972), reprinted in 1972 U.S.C.C.A.N.
at 4704). In dual capacity cases, both Congress and the Supreme Court have been clear:
“[T]he rights of an injured longshoreman . . . should not depend on whether he was
employed directly by the vessel or by an independent contractor.” H.R. Rep. No. 92–1441,
at 4705, 1972 U.S.C.C.A.N. at 4705; see also Edmonds v. Compagnie Generale
Transatlantique, 443 U.S. 256, 266 (1979) (“[A]ll stevedores are to be treated the same
whether they are independent or an arm of the shipowner itself.”).
The amendments to the Act, which eliminated several avenues for recovery against
a vessel, while increasing the no-fault statutory damages employees received, clearly
evidenced a Congressional intent to allocate risk away from vessels, and toward employers.
See Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 97 (1994) (“The design of these
changes was to shift more of the responsibility for compensating injured longshoremen to
the party best able to prevent injuries: the stevedore-employer. . . . Subjecting vessels to
suit for injuries . . . would threaten to upset the balance Congress was careful to strike[.]”
(internal citation omitted)). The general thrust of subsequent federal caselaw has followed
this premise, and courts have typically declined to expand an injured employee’s recovery
from their employer beyond that guaranteed by the statute. See Levene v. Pintail Enters.
Inc., 943 F.2d 528, 531 (5th Cir. 1991) (“The availability of a tort remedy for vessel
10
negligence is a limited exception to the . . . LHWCA, which . . . generally replaces
negligence causes of action against employers with a system of predetermined,
standardized benefits.”) (footnote omitted); see also Morehead v. Atkinson-Kiewit, J/V, 97
F.3d 603, 613 (1st Cir. 1996) (en banc) (“We are not disposed to upset that balance by
expanding the liability of employers that act simultaneously as vessel owners, when the
statute does not call for such a reading and the Supreme Court has cautioned against it.”). 6
Nevertheless, covered employees retain the right to sue a dual capacity employer for vessel
negligence under the Act. 33 U.S.C. § 905(b); Jones & Laughlin Steel Corp., 462 U.S. at
531–32.
In Scindia Steam Navigation Co., Ltd. v. De Los Santos, the Supreme Court outlined
three duties of care a vessel owner owes an independent stevedoring contractor. 451 U.S.
156 (1981). First, a vessel must exercise “ordinary care under the circumstances to have
the ship and its equipment in such condition that an expert and experienced stevedore will
be able by the exercise of reasonable care to carry on its cargo operations with reasonable
safety[.]” Id. at 167. Included in this duty is the requirement that a vessel owner warn
maritime workers of hidden dangers posed by “the condition of the ship’s gear, equipment,
6
Although the Supreme Court of Maryland has not yet considered a dual capacity case
under section 905(b), the Court has twice declined to expand an employer’s liability
beyond that contemplated by the LHWCA. See Stanley, 301 Md. at 212–13 (determining
that receiving no-fault benefits under the Act precluded additional recovery under a
separate federal statute, as to hold otherwise would be to “violate the exclusivity of remedy
provisions of § 905(a) of the LHWCA, and permit [a litigant] to accomplish indirectly what
he cannot do directly under the statute[,]” and “upset the intent of Congress to limit an
employer’s ultimate liability for maritime injury”); see also Hill, 396 Md. at 722 (“[T]he
exclusivity provisions of the federal LHWCA are controlling and preempt negligence
claims under the Maryland Workers’ Compensation Act.”).
11
tools, and work space[.]” Id. This duty is referred to as the “turnover duty.” See Howlett,
512 U.S. at 98.
Second, although a vessel has no inherent duty to supervise or inspect a third-party
employer’s work, when it does “actively involve[] itself in the cargo operations” it can be
liable for its own negligence which leads to an injury. Scindia, 451 U.S. at 167. Similarly,
a vessel risks liability under this duty when “it fails to exercise due care to avoid exposing
longshoremen to harm from hazards they may encounter in areas, or from equipment, under
the active control of the vessel during the stevedoring operation.” Id. This duty is often
referred to as the “active control duty.” Gravatt, 226 F.3d at 121.
The third Scindia duty is the “duty to intervene.” See Scindia, 451 U.S. at 175–76;
see also Howlett, 512 U.S. at 98. Although a vessel is not generally liable in negligence
because of dangers in areas under the principal control of the third-party employer, when
a vessel owner acquires actual knowledge that “(1) a condition of the vessel or its
equipment poses an unreasonable risk of harm and (2) the stevedore is not exercising
reasonable care to protect its employees from risk[,]” a duty to intervene arises. Gravatt,
226 F.3d at 121 (citing Scindia, 451 U.S. at 175–76).
Notably, Scindia involved the traditional tripartite scenario with an independent
third-party employer, and not the dual capacity relationship at issue in the instant case. 451
U.S. at 158. The Supreme Court of the United States has not yet addressed the extent to
which these duties apply in dual capacity employment actions brought under 33 U.S.C. §
905(b). See Morehead, 97 F.3d at 605.
12
E. Vessel Negligence in Dual Capacity Cases
As no controlling caselaw exists to delineate the precise contours of vessel
negligence liability under section 905(b), we turn to the federal courts for persuasive
authority. See Pope, 284 Md. at 320 n.10; see also Henry, 187 Md. App. at 664.
Castorina v. Lykes Bros. S.S. Co., Inc. dealt with a longshoreman who was exposed
to asbestos and not provided with adequate personal protective equipment by his dual
capacity employer. 758 F.2d 1025, 1027 (5th Cir. 1985). The Fifth Circuit held that while
the Scindia duties applied to dual capacity employers, those duties were “neither
heightened nor diminished when the longshoreman is employed directly by the vessel.” Id.
at 1033. In declining to find vessel negligence under section 905(b), the Castorina court
concluded that the dusty conditions of the ship were “open and obvious” and therefore, the
Scindia duties did not apply, as “Lykes as vessel owner was entitled to rely on Lykes as
stevedore to conduct the offloading operations properly.” See id. at 1036.
The Fifth Circuit reaffirmed this principle in Levene v. Pintail Enterprises, Inc., 943
F.2d 528 (5th Cir. 1991). Although agreeing that the Scindia duties applied in a dual
capacity case, the court concluded that the mere presence of a captain in command of the
vessel did not give the dual capacity defendant constructive control of the work area of the
barge in the capacity of vessel owner. See id. at 535. In particular, the court determined that
the accident “occurred not as the result of any defect in the [vessel], but at best was the
result of a series of employment decisions[,]” and as such concluded that no violation
actionable under section 905(b) of the LHWCA had occurred. Id. at 535–36.
Similarly, the First Circuit concluded in Morehead v. Atkinson-Kiewit, J/V that the
13
Scindia duties apply “insofar as the facts allow” in dual capacity cases. 97 F.3d at 613. In
determining if negligence can be applied to a dual capacity employer, “[a] court may have
to divide the employer-shipowner into a hypothetical independent employer and
independent vessel owner, each separately holding the duties allocated under principles
suggested in Scindia.” Id.
Morehead involved a bridge construction worker who, while working on a barge
owned by his employer, fell into a hatch that had been left open by a fellow employee. Id.
at 614. The First Circuit applied the Scindia framework and concluded that the dual
capacity employer, which had construction supervisors aboard the vessel, but no separate
maritime captain or crew, was liable in its capacity as an employer, not as a vessel. Id.
(“The vessel, or the employer in its vessel capacity, is not implicated except in the unusual
circumstance that the vessel itself continues to exercise active control over the work area.”).
The court determined that Scindia’s active control duty did not apply to the barge, which
was being used as a construction worksite, and a hatch negligently left ajar on the orders
of a construction supervisor during a construction project, could not be imputed to the
employer in its capacity as a vessel owner. Id. at 616. Sitting en banc, the First Circuit
noted that to decide otherwise would be to “greatly expand a defendant’s liability qua
vessel” in dual capacity cases. Id. at 615.
The Second Circuit has likewise addressed the distinction between vessel
negligence and employer negligence under the Act. See Gravatt, 226 F.3d at 114. Gravatt
v. City of New York involved an appeal from a final judgment where an employee was
injured while unloading construction materials and re-loading construction debris onto a
14
materials barge owned by his employer. Id. at 111–13. The Second Circuit concluded that
the injury, which resulted from the negligent manner in which the materials were moved
on and off the barge by a crane, was attributable to the employer’s performance of
construction work. Id. at 125. This, in the court’s view, was separate from the barge’s
purpose as a vessel, which was to ferry building materials between work sites. Id. at 125–
26.
The Gravatt court noted that at the time of the accident, the barge was stationary
and “[a]ll the personnel working on the crane barge were engaged in bridge repair; none
was engaged in seafaring work.” Id. at 113, 126. In evaluating the role of the Scindia duties,
the court specifically noted that although the dual capacity employer “had ‘active control’
over the barge, and ‘actual knowledge’ of the negligent conduct, those facts are not
sufficient to render it liable, unless that active control or actual knowledge was in its role
as vessel owner.” Id. at 128 (emphasis added). Specifically, the court noted that to hold
otherwise, and impose Scindia duties in all cases in which an accident occurred onboard a
ship owned by a dual capacity defendant, would “be contrary to the express intent of
Congress, which sought generally in drafting section 905(b) to provide the same result
regardless whether the covered work was performed by an independent contractor or by
the ship through personnel it hired directly to perform it.” Id. at 123 (citing H.R. Rep. 92–
1441, 1972 U.S.C.C.A.N. at 4705). Ultimately, although the court noted that “[i]t may be
viewed as an unhappy result” to limit the recovery of a worker injured by the negligence
of his dual capacity employer to the worker’s statutory compensation payment, “that is the
intent of workers’ compensation laws and it is the result intended by Congress under the
15
LHWCA.” Id. at 126.
While Maryland courts have not directly addressed the issue, numerous other courts
have accepted the premise that to successfully maintain an action under section 905(b), a
plaintiff must present evidence that the negligence was in some way specifically related to
the defendant’s capacity as a vessel, and not merely bootstrapped by the fact that the
defendant is a dual capacity employer. See McConville v. Reinauer Transp. Cos., L.P., 16
A.D.3d 387, 389 (2d Dep’t 2005) (noting that in a dual capacity case brought in a New
York state court, the question of whether the negligence occurred in the capacity of
employer or vessel owner “turns, preliminarily, on whether the accident was the result of
human error on the part of an employee engaged in non-vessel related work . . . or of a
defect or malfunction in the ship’s equipment”); Daggs v. Martin, 851 So.2d 1190, 1193
(La. Ct. App. 2003) (affirming the dismissal of a vessel negligence claim in a dual capacity
case brought in a Louisiana state court where the plaintiff was struck by a piece of
construction equipment, as “the construction work was separate and apart from the work
of the vessel[,]” and there was “no evidence in the record that the barge or anyone present
at the site was engaged in vessel duties at the time of the accident”); Doty v. Tappan Zee
Constructors, LLC, 831 Fed. Appx. 10, 13 (2d Cir. 2020) (affirming summary judgment
for the dual capacity defendant when the alleged vessel negligence involved the plaintiff
falling while repairing a crane on a stationary barge, as the “allegedly dangerous condition
was related to [defendant’s] work as a construction company, not as vessel owner”); Dean
v. McKie Co., 771 F. Supp. 466, 476 (D. Mass. 1991) (granting summary judgment, as
“[i]n order to hold the vessel owner liable, there must be some condition of the vessel that
16
caused or contributed to the plaintiff’s injury”); Brown v. McKinnon Bridge Co., Inc., 732
F. Supp. 1479, 1485–86 (E.D. Tenn. 1989) (holding that a section 905(b) claim could not
proceed because “the injury [plaintiff] suffered was wholly unrelated to any negligent
condition on a barge”).
In so holding, federal and state courts alike have rejected the idea that a dual capacity
employer can be liable for vessel negligence due merely to its presence or control of the
scene of the accident in the capacity of an employer. In sum, courts have concluded that
there must be some nexus between the negligent act and either the physical character of the
vessel or other exclusively vessel-related operations.
Where courts have found a genuine issue of fact to be determined by a jury, they
have routinely focused on the physical vessel creating the hazardous condition. See Halpin
v. Atkinson-Kiewit, J.V., 894 F. Supp. 486, 493 (D. Mass. 1995) (denying a defendant’s
motion for judgment where evidence showed that lines connecting a barge to another vessel
were too slack, allowing excess movement of the barge); see also White v. Cooper/T. Smith
Corp., 690 F. Supp. 534, 539–40 (E.D. La. 1988) (denying dual capacity defendant’s
motion for summary judgment where plaintiffs alleged “something was physically wrong
with the [vessel]”); Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 790–91 (9th Cir. 2007)
(reversing trial court’s grant of summary judgment for dual capacity defendant where there
was genuine issue of material fact as to whether the ramp connecting a barge to the shore
was “more like a gangway than a dock or pier[]”).
17
F. Section 905(b) Liability Does Not Attach Absent Negligence in the
Capacity of a Vessel Owner.
This Court is persuaded by the holdings of the First, Second, and Fifth Circuits that
for a dual capacity employer to be liable for negligence of a vessel under section 905(b) of
the LHWCA, any negligence must be borne out of actions taken in the defendant’s capacity
as a vessel. See supra, Section I.D. We, likewise, agree with the Gravatt court’s conclusion
that, to the extent that Scindia duties apply to a dual capacity defendant pursuant to the Act,
any active control over an area of the vessel, ability to intervene to prevent harm to an
employee, or actual knowledge of a dangerous condition must occur specifically in the
defendant’s capacity as a vessel owner. See Gravatt, 226 F.3d at 128; see also Levene, 943
F.2d at 535; Morehead, 97 F.3d at 613–14.
To hold otherwise would run counter to the clear direction of both Congress and the
Supreme Court of the United States that an injured worker’s rights should be neither limited
nor broadened merely because of their employer’s simultaneous status as shipowner. See
H.R. Rep. No. 92–1441, 1972 U.S.C.C.A.N. at 4705; see also Edmonds, 443 U.S. at 266.
The plain language of the Act states that “[t]he liability of an employer . . . shall be
exclusive and in place of all other liability of such employer to the employee[.]” 33 U.S.C.
§ 905(a). Where no cause of action under section 905(b) would be tenable pursuant to the
traditional tripartite relationship between vessel, employer, and maritime worker, we are
persuaded that no expanded liability attaches to the vessel merely because of its dual
18
capacity status as both shipowner and employer of the maritime workers aboard. 7 See
Morehead, 97 F.3d at 615.
G. Analysis
As we turn to the instant case, a brief recitation of what is not at issue is useful. The
parties agree that at the time of his injury, McGeady was a longshoreman covered by the
LHWCA, that Corman was his employer, and that the Xavier was a vessel located in
navigable waters. They further agree that the Xavier was a stationary work platform
moored to the riverbed, and its purpose was to serve as a staging area for a construction
project which involved sinking a sewer pipe into the water. Likewise, the parties do not
dispute that Corcoran, the president of Corman Marine Construction, personally directed
the project and gave the order to deflate the pneumatic plug, the event which resulted in
McGeady’s injury. Thus, we must only determine if sufficient evidence was adduced at
trial to allow a determination that Corcoran’s action in directing the deflation of the plug
could be imputed to Corman in its capacity as a vessel owner, as opposed to as an employer.
Appellees contend that the proper test for vessel negligence involves showing that
“a supervisory agent of the dual-capacity vessel owner,” while on a vessel, committed a
7
This conclusion is supported by the legislative history of the Act. As noted supra, the
LHWCA has been twice amended to reduce the ability for a covered employee to recover
from a dual capacity employer in an amount in excess of the prior statutorily guaranteed
benefits. See Gravatt, 226 F.3d at 117. (“In amending section 905(b) Congress clearly
intended that the ‘vessel’s liability is to be based on its own negligence.’” (quoting H.R.
Rep. No. 92–1441, at 4704) (emphasis added in Gravatt)). Similarly, our Supreme Court
has concluded that, in the context of the Act, “[p]roviding claimants an opportunity to
pursue a separate claim when legislation is already tailored and in place would work an
impermissible tour de force on the entire workmen’s compensation scheme.” Stanley, 301
Md. at 213.
19
negligent act which related to the task and purpose of the vessel or in furtherance of the
vessel owner’s corporate interest or motivation. It is Appellees’ position that Corcoran, as
president of Corman Marine Construction, “took charge of, oversaw and directed a critical
operation . . . to weld and sink a sewer pipe into the York River.” Thus, in Appellees’ view,
because of Corcoran’s presence on the Xavier as the supervisory agent of a dual capacity
defendant, he was inherently present in his capacity as a vessel supervisor, and his
negligent conduct was “attributable to the vessel[.]” Appellees also contend that
Corcoran’s purpose in negligently directing the removal of the plug was motivated by
“corporate concern[,]” which they argue allows imputation of his actions to Corman’s
capacity as a vessel.
Appellees cite two cases they contend support their definition of vessel negligence,
Pichoff v. Bisso Towboat Co., Inc., 748 F.2d 300 (5th Cir. 1984), and Smith v. Eastern
Seaboard Pile Driving, Inc., 604 F.2d 789 (2d Cir. 1979). However, both are
distinguishable from the instant case. Pichoff involved a harbor worker who, while
repairing a leaking fuel tank in an area of the ship that had no permanent lighting, slipped
in a pool of fuel and suffered a back injury. 748 F.2d at 301–02. The Fifth Circuit concluded
that under the LHWCA, the dual capacity defendant could be liable in its capacity as
shipowner, because the “corporate concern” of being unable to provide a working vessel
to a client if the repair work was not timely completed was “at least partly in [the] capacity
as representative of the vessel owner[.]” Id. at 303. However, we note that the corporate
concern in Pichoff was borne out of a physical problem with the vessel, and the
instrumentality of the harm—insufficient lighting combined with a fuel leak—clearly
20
relates to the character of the vessel. Id. at 301–02. Thus, Pichoff is distinct from the instant
case, where McGeady’s injury was wholly unrelated to the Xavier’s physical character as
a vessel, and Corman’s corporate concern in the removal of the pneumatic plug was related
to quickly completing a construction project, not remedying a physical defect in the vessel.
Appellees’ citation to Smith is no more persuasive. 604 F.2d 789. In Smith, the
Second Circuit was confronted with a section 905(b) action brought by the estate of an
employee who drowned while inspecting a damaged vessel. Id. at 792. The court held that
the death could be attributable to the dual capacity defendant in its capacity as a vessel,
because “[t]he absence of a rescue plan, the improper placement of emergency apparatus,
and the failure to provide a ladder or platform were all defects in the general operation of
the tug[.]” Id. at 796. Issues such as a vessel’s insufficient water rescue plan or equipment
are clearly related to the character of the vessel itself, irrespective of the mission employees
on board are attempting to complete.
The Smith court also noted that, although the company president of the dual capacity
defendant was aboard when the accident occurred, he was present specifically in his
supervisory capacity as shipowner, and because in that capacity he should have known
about the dangerous physical condition of the vessel, the negligence could be imputed to
the defendant in its capacity as a shipowner. Id. at 797. This is distinct from the case at bar,
where Corcoran was explicitly on board the Xavier to supervise a construction project, not
monitor a stationary work platform.
Ultimately, neither Pichoff nor Smith stands for the principle that either corporate
concern, or the mere presence of a supervisor in the employ of the dual capacity defendant
21
is inherently sufficient to give rise to vessel negligence. Indeed, this premise has been
soundly rejected by later federal circuit court rulings. See Gravatt, 226 F.3d at 128;
Morehead, 97 F.3d at 613. Rather, the injuries in Pichoff and Smith both arose from dual
capacity defendants’ negligence related to the physical condition of a vessel. Pichoff, 748
F.2d at 301–02; Smith, 604 F.2d at 796. By contrast, here, McGeady’s injury was solely
the result of a construction accident unrelated to the physical character of the Xavier.
As we have stated above, in order to maintain a section 905(b) action against a dual
capacity employer, a plaintiff is required to present evidence showing that the negligence
occurred specifically in the defendant’s capacity as a vessel. See supra, Section I.E. From
a review of the record before us, we determine that Appellees, even in the light most
favorable to their position, adduced no such evidence at trial.
Corcoran’s testimony indicated that the day of the incident, he had been supervising
the land-based construction on the York River sewage project, and “decided to go [to the
vessel] because that was the next phase of the work[,]” and because he had been specifically
asked by the construction foreman to “help [the foreman] out” aboard the Xavier. Corcoran
described his role as “oversight for the overall project” and “helping with the directing of
the work.” He explained that the reason he gave the order to pull the plug was because they
needed to try to get the air out of the pipe. Corcoran also testified that the reason he
instructed an employee to depressurize the plug was because that specific employee was
the construction foreman. At the time the incident occurred, the Xavier was affixed to the
bottom of the York River, and the only individuals aboard were “marine construction
workers.” Corcoran testified that the people who operate the tugboat, which would have
22
been required to move the Xavier, were “a separate crew” who were not aboard the vessel.
There is no allegation that the pipe or the plug were part of the Xavier, or that the plug
depressurized for any reason other than that Corcoran specifically ordered a construction
foreman to remove it as part of a construction project. Simply put, the injury McGeady
suffered was wholly unrelated to any negligent condition on the Xavier, and but for the
happenstance of his employer’s dual capacity status, no section 905(b) action would have
been plausible.
Here, when we “divide the employer-shipowner into a hypothetical independent
employer and independent vessel owner” and consider the evidence in the light most
favorable to Appellees, there is no support for the contention that Corcoran was aboard the
Xavier in his capacity as the representative of the shipowner. Morehead, 97 F.3d at 613.
As in Gravatt, all personnel aboard the vessel were engaged in construction work, not
seafaring duties, and the platform was stationary. 226 F.3d at 113, 125–26. Like the injury
in Morehead, the specific cause of McGeady’s injury was an act of negligence performed
by a construction employee during work on a construction project. 97 F.3d at 616.
Similarly, the injury occurred when no separate maritime captain or crew was aboard. Id.
In the absence of any evidence tending to show that Corcoran was specifically
present on the vessel in his capacity as an agent of the vessel owner—that is, to oversee the
Xavier as a physical work platform—as opposed to in his capacity as manager of a
construction project, we cannot say that a reasonable factfinder could reach the conclusion
that at the time Corcoran gave the order to depressurize the plug, his conduct was
attributable to Corman as a vessel owner. For the same reason, a reasonable factfinder
23
could not conclude that Corcoran’s mere presence as a construction supervisor resulted in
Corman, as vessel owner, obtaining either active control over the vessel, or actual
knowledge of a dangerous condition. See Levene, 943 F.2d at 535.
For the reasons articulated above, we determine that, even when viewed in the light
most favorable to Appellees, no evidence was adduced at trial that would enable a
reasonable factfinder to determine that McGeady’s injury was the result of vessel
negligence within the meaning of the LHWCA, and consequently, Corman’s motion for
judgment should have been granted. Exxon Mobil Corp., 433 Md. at 333. To hold otherwise
would be to abrogate the policy bargain Congress struck in promulgating the LHWCA and
contravene the guidance of the Supreme Court of the United States that the rights of
workers covered under the Act should not depend on the dual capacity status of their
employer. See Howlett, 512 U.S. at 97; Edmonds, 443 U.S. at 266–67; see also Morehead,
97 F.3d at 613 (“We are not disposed to upset that balance by expanding the liability of
employers that act simultaneously as vessel owners, when the statute does not call for such
a reading and the Supreme Court has cautioned against it.”).
II. THE CIRCUIT COURT DID NOT ERR IN LIMITING CORMAN’S CROSS-
EXAMINATION OF MCGEADY PURSUANT TO MARYLAND RULE 5-611(a).
Although we determine that the court erred in denying Corman’s motion for
judgment, to provide future courts and litigants with guidance on the application of the
Maryland Rules, we nevertheless take this opportunity to address Corman’s second
question, which concerns the degree of control over trial proceedings afforded to a trial
court by Rule 5-611(a). See Cottman v. State, 395 Md. 729, 745 (2006).
24
A. Factual Background
1. The expert witnesses’ trial testimony
At trial, both parties introduced expert witnesses who opined about McGeady’s
mental state following his injury aboard the Xavier. Corman introduced an expert in
neurology who testified that he had reviewed McGeady’s medical history and deposition
transcripts, as well as personally interviewed McGeady prior to preparing a report.
Appellees introduced two medical experts who likewise had examined McGeady’s medical
records, as well as interviewed him personally. While both parties’ experts agreed that
McGeady had suffered a traumatic brain injury resulting from his accident aboard the
Xavier, they disagreed about the extent of the injury, and McGeady’s degree of recovery
from that injury. Appellees’ experts noted that McGeady had significant ongoing
challenges related to his ability to interact appropriately with others, specifically in his
ability to respond to others relevantly, cooperatively, and calmly, which they attributed to
the brain injury he sustained from the accident on the Xavier. Corman’s expert largely
agreed with Appellees experts’ observations about how McGeady’s mental health
challenges affected his present behavior but contended that the cause of McGeady’s
difficulties was unrelated to his injury on the Xavier.
2. McGeady’s trial testimony
When McGeady was called as a witness on the seventh day of trial, he presented
symptoms consistent with the characterizations made by both parties’ expert witnesses. In
response to Appellees’ question “where did you grow up[,]” McGeady gave a long and
disjointed answer. Appellees’ counsel noted in a bench conference that his rationale for
25
calling McGeady was because counsel “wanted the jury to see how severe [McGeady’s]
injuries were.”
Corman disputed the propriety of presenting McGeady in such a fashion. In
response, the court noted that while Corman’s own expert had testified that McGeady’s
mental state was not attributable to a traumatic brain injury, there had been no challenge to
the “medical and mental condition” of McGeady. The court further clarified: “I don’t think
there’s any doubts, as I indicated, from your own experts that Mr. McGeady is suffering
from some medical and mental health condition.”
The parties and the court agreed that McGeady was competent to testify, and
Corman’s counsel elected to cross-examine him. The court noted that it would “advise Mr.
McGeady . . . to try to limit his answers to the questions that you’re asking. If it’s cross-
examination, I’m hoping you’re asking yes/no questions [] where he can limit his answers.”
The court noted that “If Mr. McGeady is unable to - - well, I’ll leave it at that and I’ll
reconsider based on what I see whether that testimony can continue.”
The court, outside the jury’s presence, also instructed McGeady that he should
attempt to limit his answers to either yes or no, or to no more than one sentence.
Additionally, the court informed McGeady if necessary, it would “step in and say that’s
enough, next question.” For more than an hour, with the diligent assistance of the court,
McGeady answered Corman’s questions. During this period, Corman asked McGeady
open ended questions, primarily concerning McGeady’s past work experience; Corman’s
counsel did not inquire regarding the day of McGeady’s injury, or his subsequent
experience. Although McGeady did respond to some of counsel’s questions, he also
26
routinely provided lengthy answers that were not necessarily responsive and was frequently
redirected by the court. After slightly more than an hour of cross-examination, the parties
approached the bench, and Corman’s counsel informed the court that “an hour to an hour
and a half” of additional cross-examination would be needed. The court adjourned until
9:00 A.M. the next day.
The following day McGeady again gave lengthy and substantially non-responsive
replies to Corman’s open-ended cross-examination questions, which again did not initially
concern the incident or its effects. To its credit, the court frequently attempted to redirect
McGeady by saying “next question[.]” Following a particularly long non-responsive
answer, the court summoned counsel to the bench. The court noted that Corman’s counsel
was “not even asking [McGeady] leading questions[,]” and stated: “[T]his is going on for
an extended period of time. I’m going to put a time limit on your cross-examination and
then you can do whatever you want with it. How much time do you need?” Counsel stated
that, in line with his statement at the end of the previous day, he would need an hour to an
hour and a half of additional time, hence, cross-examination would be warranted until
10:30 A.M. The court agreed to the request.
Shortly after, Corman’s counsel approached the bench, and requested that the court
re-instruct McGeady outside the presence of the jury, as had occurred the previous day.
The court, while noting that it had been interjecting in line with the previously established
system, declined to provide an additional instruction outside the presence of the jury.
Cross-examination resumed, and the court continued its active attempts to keep McGeady
focused on Corman’s questions. McGeady continued providing testimony that was
27
primarily non-responsive.
Eventually, the court called for another bench conference, and informed Corman’s
counsel that his allotted time had elapsed. Corman sought to continue questioning
McGeady, to which Appellees objected. Corman’s counsel asserted that “no rule”
prevented him from questioning McGeady for an extended period of time and moved for a
mistrial.
The trial court disagreed with Corman that it could not restrict the amount of time
McGeady could be cross-examined and then explained the court’s reasoning for
implementing the restriction. The court noted that the parties had initially indicated seven
days would be required for trial, however, that time had already been exceeded. The court
noted that it had “carefully observed” McGeady, as well as listened to the expert testimony,
and stated that McGeady’s issues with focus and responding directly to questions were
apparent, and that McGeady was far more agitated than he had been the previous day. The
court also specified that Corman’s counsel “asked little to no leading questions[,]” and had
“almost no ability to control this witness.” The court continued, saying that after McGeady
“would talk for as long as five to six minutes,” Corman’s only follow up question was
“‘[k]eep going.’” The court observed that pursuant to the Maryland Rules the court could
place limits on cross-examination, and impose time limits, which were those to which
Corman’s counsel had previously agreed. Finally, the court indicated that there were
“extenuating circumstances given the condition of the witness[,]” and mandated that the
cross-examination of McGeady be concluded.
28
B. The Parties’ Contentions
Corman contends that the trial court erred in imposing a time limit on McGeady’s
testimony pursuant to Maryland Rule 5-611(a). Specifically, Corman asserts that the trial
court improperly used Rule 5-611(a) to “exclude relevant evidence from a competent
witness.” Corman argues that placing a time limit on McGeady’s testimony failed to protect
McGeady from undue harassment or embarrassment, did not further the goal of an effective
ascertainment of the truth, and did not constitute a reasonable accommodation which would
allow McGeady to testify. Thus, in Corman’s view, in declining to reinstruct McGeady
outside the presence of the jury during the second day of his testimony, and by “t[aking]
sides in a credibility contest” when noting the court’s impression of McGeady’s behavior,
the court had abused its discretion.
Appellees disagree and assert that the court did not abuse its discretion in controlling
McGeady’s trial testimony. Appellees dispute the characterization that the court
“excluded” McGeady’s testimony under Rule 5-611(a), contending that the court merely
imposed reasonable limits on a “lengthy and unhelpful examination.” Nor do Appellees
accept Corman’s contention that the court’s actions did not constitute a reasonable
accommodation; rather, Appellees assert that the court employed an accommodation for
McGeady’s condition by interjecting to move the testimony forward. Appellees argue that
the court did not “take sides” in a “credibility contest” related to McGeady’s mental state
and note that both parties’ experts agreed that McGeady suffered from a mental health
condition, and the only dispute was the cause of that condition. Finally, Appellees observe
that Corman was permitted to cross-examine McGeady for two and a half hours, and also
29
submitted 11 hours of discovery deposition testimony into the record.
C. Standard of Review
We review the trial court’s control over the presentation of witness testimony for
abuse of discretion. Applied Indus. Techs. v. Ludemann, 148 Md. App. 272, 289 (2002)
(“[T]he course and conduct of trial is left to the sound discretion of the trial court and its
decisions in this regard will not be reversed absent abuse.”); see also AC and S, Inc. v.
Abate, 121 Md. App. 590, 671 n.48 (1998), abrogated in part on other grounds by John
Crane, Inc. v. Scribner, 369 Md. 369 (2002). As the Supreme Court of Maryland has stated,
“[m]anaging the scope of cross-examination is a matter that falls within the sound
discretion of the trial court.” Simmons v. State, 392 Md. 279, 296 (2006). Additionally,
“where a trial court’s ruling is reasonable, even if we believe it might have gone the other
way, we will not disturb it on appeal.” Fontaine v. State, 134 Md. App. 275, 288 (2000).
D. Analysis
Maryland Rule 5-611(a) states that a court “shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Although Corman is correct that Rule 5-611(a) does not in and of itself
regulate the exclusion of evidence, we disagree with Corman’s contention that the court
excluded admissible evidence under the Rule.
The court did not apply Rule 5-611(a) in a manner that was tailored to prevent any
specific portion of McGeady’s testimony from reaching the jury. Rather, because
30
McGeady’s testimony regarding unrelated topics had been “going on for an extended
period of time[,]” the court placed a time limit on the cross-examination, and informed
Corman’s counsel, approximately one and a half hours before its expiration that he “[could]
do whatever [he] wanted with” the remaining time. Under the court’s ruling, Corman had
two and a half hours to cross-examine McGeady about any potentially relevant topic, and
Corman’s counsel both specifically suggested as well as acquiesced to the time limit.
Moreover, at the point the court made the ruling, the case had already extended well beyond
its scheduled duration. Because the record demonstrates that the court was “avoid[ing] the
needless consumption of time[,]” and ensuring an effective presentation of evidence, we
reject Corman’s contention that the trial court erroneously used Rule 5-611(a) as a rule of
exclusion. 8 See Md. Rule 5-611(a).
Corman’s contention that Rule 5-611(a) compelled the court to re-instruct McGeady
on the eighth day of trial fares no better. That day, the court observed an increased agitation
in McGeady and noted that although the court had attempted repeatedly to interrupt
McGeady to get him to move to the next question, “it didn’t seem to be working.” The
court declined Corman’s request to clear the jury from the courtroom and reinstruct
8
To be sure, a trial court may abuse its discretion by terminating cross-examination
“without first informing itself of facts essential to its ruling[.]” Lewis v. State, 71 Md. App.
402, 410–11 (1987). By contrast, in the instant case, the court noted it had carefully
observed McGeady, and understood how his condition affected his testimony. Moreover,
the court stated that it had observed that Corman’s counsel had “almost no ability to
control” McGeady and had “asked little to no leading questions.” Here, the court did not
fail to inform itself of facts needed to reach the conclusion that further testimony would
have likely been unhelpful and contrary to Rule 5-611(a)’s goals of avoiding wasted time
and the ineffective presentation of evidence.
31
McGeady to limit his answers. However, the court agreed to continue the system of
attempting to prompt McGeady to move to the next question and diligently proceeded to
do so.
Corman advances the theory that a reinstruction outside the presence of the jury was
a “reasonable accommodation” for McGeady’s disability that the court was required to
provide. We disagree. “The conduct of [a] trial must of necessity rest largely in the control
and discretion of the presiding judge,” and in the absence of an abuse of discretion, we will
not interfere with the court’s judgment that (1) McGeady required an accommodation, and
(2) the granted accommodation was sufficient under the circumstances. Thomas v. State,
143 Md. App. 97, 109–10 (2002) (internal quotation marks and citation omitted). Here, on
both days of his testimony, the court elected to grant an accommodation in the form of the
trial judge interjecting to assist McGeady in focusing on the next question. On the second
day of his testimony, the court observed that McGeady was especially agitated and difficult
to control, that Corman’s counsel had not been asking McGeady leading questions, and
instead had been allowing McGeady to discuss tangential topics at length. Under the
circumstances, the court’s decision to continue applying an accommodation, without also
reinstructing McGeady outside the presence of the jury was well within the court’s
discretion. See Bellamy v. State, 119 Md. App. 296, 304 (1998) (“[A] trial judge has great
discretion in controlling the conduct of a trial.”).
Nor do we agree with Corman’s contention that the court “took sides on a credibility
contest” between experts. Specifically, Corman takes issue with the court’s observation,
made outside the hearing of the jury, that McGeady “has no ability to stop when a question
32
is posed to him[,]” and was “largely unable to respond directly to questions that are asked.”
Corman attempts to analogize this statement to a trial court’s reversible error in Frankel v.
Deane, 480 Md. 682 (2022), but the comparison is unavailing. The error in Frankel arose
in the context of a Rule 5-702 admissibility hearing and involved a court impermissibly
making a credibility determination when a doctor’s medical records directly contradicted
the testimony of a patient. Id. at 701–04. By contrast, here, the court merely placed its own
direct observations of McGeady’s behavior at trial on the record and did not make a factual
finding as to his diagnosis or level of disability.
Additionally, it does not appear from the record that there was a meaningful
difference of opinion between the parties’ experts as to the nature of McGeady’s mental
health condition as it relates narrowly to this issue. At no point did Corman’s expert
disagree with Appellees’ experts that McGeady was suffering from mental dysfunction;
rather, Corman’s expert merely challenged the cause of such a condition. 9 The court’s
comment explained the ruling in part by acknowledging in-court behavior which was clear
from the record and consistent with expert testimony from both parties. This was well
within the permissible exercise of its discretion.
For the reasons articulated above, the court did not abuse its discretion in controlling
either the presentation of testimony, or the course and conduct of trial. See Ludemann, 148
Md. App. at 289; see also Md. Rule 5-611(a). However, because we determine that
9
As Corman notes, the degree to which McGeady was prevented from working by his
condition was at issue in the case, but both parties acknowledged, and it is clear from the
record, that McGeady exhibited serious behavioral challenges at trial.
33
Appellees failed to adduce evidence allowing a reasonable inference that McGeady’s injury
was attributable to vessel negligence, we nevertheless reverse the judgment of the trial
court.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY REVERSED.
COSTS TO BE PAID BY APPELLEES.
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