Bobbitt v. Allied-Signal, Inc.

RAKER, Judge. Levon Anne Bobbitt (Bobbitt) filed a claim with the Maryland Workers’ Compensation Commission against her employer, Allied-Signal, Inc. (Allied), and its insurer, Travelers Indemnity Insurance Company of Illinois (Travelers). After the Commission denied her claim, Bobbitt appealed to the Circuit Court for Baltimore City and requested a jury trial. Following two and one-half days of trial, the jury returned a verdict in favor of Bobbitt.

Allied and Travelers appealed to the Court of Special Appeals arguing, inter alia, that they were entitled to a new trial because the trial court had erroneously ³⁵⁰ excluded Allied’s designated representative from the courtroom during a significant portion of Bobbitt’s direct examination. The Court of Special Appeals found that error had been committed; reversed the judgment and remanded the case for a new trial. Allied-Signal, Inc. v. Bobbitt, 96 Md.App. 157 , 623 A.2d 1311 (1993). We granted Bobbitt’s petition for writ of certiorari to determine whether the error committed by the trial court in temporarily excluding Allied’s designated representative from the courtroom requires a new trial. 1 L Bobbitt had worked for Allied as an electronic assembler and repair person for approximately seven years when she reported difficulties with her left arm and shoulder.

On December 21, 1990, Bobbitt filed a claim with the Maryland Workers’ Compensation Commission alleging that she had developed an occupational disease (left shoulder impingement syndrome) during the course of her employment with Allied. After a full evidentiary hearing on July 18, 1991, the Commission found that Bobbitt did not sustain an occupational disease and, therefore, disallowed her claim. Bobbitt appealed to the Circuit Court and prayed a jury trial. The case was heard on February 11 through February 13, 1992.

On February 11, the court conducted jury selection and the parties made their opening statements. On the morning of February 12, before the jury was brought into the courtroom, counsel for Allied moved to sequester the witnesses. The trial court granted Allied’s motion. Counsel for Bobbitt then asked the court to sequester Mr. James Sweeney, the designated representative for Allied and Bobbitt’s supervisor, because Mr. Sweeney was to be a witness at the trial.

Counsel for Allied objected and contended that under Safeway Stores, Inc. v. Watson, 317 Md. 178 , 562 A.2d 1242 (1989), Mr. Sweeney, as the designated corporate representative, should ³⁵¹ be permitted to remain in the courtroom. After a brief hearing, the trial court excluded Mr. Sweeney. The jury was then brought into the courtroom and Bobbitt, the first witness in the ease, began to testify. Before the conclusion of Bobbitt’s direct examination, the trial court called counsel to the bench.

The following discussion ensued: THE COURT: Counsel, I interrupted and asked you to approach the bench because I had my law clerk get Safeway Stores Incorporated vs. Watson. Sometimes my last nerve is plucked and I apologize for making a ruling and I haven’t checked the case first, but I wanted to have the case right there. Mr. Sturman [counsel for Bobbitt], you raised an issue. There is such a privilege one being Safeway vs. Watson.

In that case, Judge McAuliffe said, we need not decide here whether Safeway could have gone to central casting for the selection of its representative. In that case, the representative was the claims adjuster for a self-insured employer, but at any rate, it is very clear from the ruling in the case that they could have him here. [COUNSEL FOR BOBBITT]: The only reason I objected, this claims adjuster was not a witness in the case. THE COURT: It doesn’t make any difference, the rule is clear, you can have a designee, and the designee can be a witness. He can go out and get the designee. [COUNSEL FOR ALLIED]: Unfortunately she’s half-way finished with her testimony.

THE COURT: Well, you are going to cross examine. [COUNSEL FOR ALLIED]: Thank you. Shall I go out and get him now. THE COURT: Yes. The trial judge, recognizing error in excluding Mr. Sweeney, permitted him to return to the courtroom and take his place at ³⁵² counsel table. 2 The trial reconvened, absent any request for further relief by counsel for Allied.

II

In Safeway Stores, Inc. v. Watson, 317 Md. 178 , 562 A.2d 1242 (1989), this Court had the opportunity to consider the proper interpretation of Maryland Rule 2-513, 3 Exclusion of Witnesses. In Watson , the trial court excluded Safeway’s designated representative from the entire trial on the basis that he was a claims adjuster for a company employed by Safeway to adjust worker’s compensation claims and was not a direct employee of Safeway. Id. at 180 , 562 A.2d 1242 . We stated that “a party that is not a natural person has very broad latitude in the selection of a representative when witnesses are excluded, and the exercise of this right is not subject to the discretion of the trial judge.” Id. at 183 , 562 A.2d 1242 (footnote omitted).

Safeway, acknowledging the ³⁵³ general rule that a party must show prejudice as well as error in order to prevail, argued that: under the circumstances of this case, where Safeway was denied an important right that was very likely prejudicial to it but where actual prejudice is difficult to prove, the burden should be on the “party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of the litigation.” Id. at 184 , 562 A.2d 1242 (quoting Harris v. Harris, 310 Md. 310, 320 , 529 A.2d 356 (1987)). Although this Court concluded that “it is appropriate to presume prejudice from the wrongful exclusion of a party, or its representative, from a trial,” id., 317 Md. at 184 , 562 A.2d 1242 , we went on to state: Whether we consider these facts as mounting up to the necessary proof of prejudice by Safeway, or simply consider them in determining that a presumption of prejudice is appropriate in this case, the result is the same. The claimant has not overcome the proof or presumption, and the result must be a new trial. Id. at 184 , 562 A.2d 1242 .

Thus, we held that Safeway properly designated the claims adjuster as its representative pursuant to Rule 2-513, that the trial judge committed reversible error in excluding him from trial, and that a new trial was mandated. Id. In light of our decision in Watson , there is no question that the trial judge in the case sub judice erred in excluding Mr. Sweeney from the courtroom. Allied argues that the presumption of prejudice enunciated in Watson arising from the wrongful exclusion of its designated representative has not been overcome and that it is entitled to a new trial.

III

As a threshold question, we must first decide whether the issue of prejudice has been properly preserved for our review. We find it has not. ³⁵⁴ Allied argues that counsel objected and apprised the trial judge of the Watson case prior to Mr. Sweeney’s exclusion. Allied further argues that after the trial court decided to allow Mr. Sweeney to return to the courtroom, counsel again noted an objection by stating “[u]nfortunately she’s half-way finished with her testimony.” Allied contends that the response of the trial judge, “[w]ell, you are going to cross examine,” is evidence that the trial judge was impatient, that she would not entertain any further argument on the issue, and that any further objection would have been futile. We do not agree that the comments of the trial judge indicate an unwillingness to consider further relief.

Although the trial judge recognized that she may have been somewhat impatient when the issue was first raised, the record does not support Allied’s contention that when Mr. Sweeney was allowed to return to the courtroom the trial judge prevented counsel from making a proper record. If the trial judge was unduly impatient or oppressive after she took the corrective action, it was incumbent upon counsel for Allied to elucidate the record. See State v. Larmond, 244 N.W.2d 238, 237 (Iowa 1976) (“making an appropriate objection and record relating to prejudicial conduct of the presiding court takes a special brand of courage”); see also Garrett v. State, 59 Md.App. 97, 105 , 474 A.2d 931 , cert. denied, 300 Md. 483 , 479 A.2d 372 (1984). The record, as it stands, is devoid of support for Allied’s claim that a further objection would have been futile.

Bobbitt maintains that after the trial judge took corrective action, if Allied was dissatisfied and wanted additional relief such as a mistrial, it was incumbent upon Allied to request further relief from the trial court. After Mr. Sweeney was permitted to take his place at counsel table, there was no request for a mistrial or any additional corrective action, such as a recess to confer with Mr. Sweeney or to review a transcript of the proceedings or a curative instruction to the jury to explain the absence of Mr. Sweeney. In short, Bobbitt argues that only after the jury returned an unfavorable verdict did Allied cry prejudice and request a new trial based on Mr. Sweeney’s absence. ³⁵⁵ We agree with Bobbitt and Judge Alpert, Allied Signal, Inc. v. Bobbitt, 96 Md.App. 157, 169 , 623 A.2d 1311