Wallace & Gale Asbestos Settlement Trust v. Busch
194 A.3d 401
Md. Ct. Spec. App.2018Background
- Plaintiff William E. Busch, Jr., a retired steamfitter, worked in the boiler room of Loch Raven High School (LRHS) for ~3–4 months in 1972 and later developed mesothelioma after breathing dust from cutting magnesia block insulation and asbestos-containing cement used on the boilers.
- Wallace & Gale (W&G), whose successor trust WGAST appealed, was a local insulator that performed substantial insulation work at LRHS in 1972 (time sheets show ~4,500 man-hours on Job #5679 and partial billings referencing boiler-room work), but documentary records also show some non‑asbestos materials (fiberglass, foamglass) supplied.
- Busch did not directly identify W&G as the installer of the magnesia block; in interrogatories he named McCormick as an installer, and witnesses testified McCormick installed boiler insulation; McCormick was dismissed one month before trial.
- At trial Busch relied on circumstantial evidence (work volume, partial billings, presence in the boiler room, and that magnesia block/cement at LRHS contained asbestos) to prove W&G likely installed the asbestos insulation that exposed him.
- Jury returned verdicts for Busch against WGAST and Georgia‑Pacific; WGAST moved for JNOV/new trial and lost, and appealed, raising sufficiency of causation evidence and evidentiary/instructional challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of causation/product identification | Circumstantial proof (large amount of W&G man‑hours, partial billings including boiler room work) permits inference W&G installed asbestos-containing magnesia block that exposed Busch | No direct evidence tying W&G to asbestos-containing magnesia block; documentary records show W&G supplied non‑asbestos materials; verdict speculative | Evidence sufficient for jury: reasonable inference W&G was primary insulator and likely installed asbestos magnesia block; denial of judgment affirmed |
| Admission re: McCormick dismissal (opening the door) | Admission of stipulation of dismissal necessary to avoid juror confusion after defendant introduced complaints naming McCormick | Admission irrelevant/prejudicial; dismissal details should be excluded | Trial court did not abuse discretion: WGAST opened the issue by putting complaints in evidence; limited notice of dismissal admissible to prevent confusion |
| Admission of W&G work outside Busch’s employment dates | Evidence of W&G work outside Busch’s months at LRHS was irrelevant and prejudicial | Extent/timing of W&G work was probative to show W&G was primary contractor on site and likely handled boilers | Trial court did not abuse discretion: broader time-period documents were relevant to product‑identification inference |
| Requested jury instruction on fiber‑drift theory | N/A (defense sought instruction rejecting fiber‑drift) | Fiber‑drift instruction should be given to clarify law and prevent jury from relying on drift theory | Denial affirmed: fiber‑drift instruction not generated by evidence because plaintiff alleged exposure confined to boiler room, not ambient drift |
| Instructions on interrogatories and complaint statements | N/A (defendant asked to treat prior interrogatory answers/complaint statements as substantive admissions) | Such responses/statements are admissions and substantive evidence | Court properly modified wording to say they "can be considered evidence"; no abuse of discretion—the instruction accurately conveyed law without confusing jurors |
Key Cases Cited
- Owens‑Corning Fiberglas Corp. v. Garrett, 343 Md. 500 (1996) (defines bystander exposure framework)
- Eagle‑Picher Indus. v. Balbos, 326 Md. 179 (1992) (frequency, proximity, regularity test; rejects fiber‑drift causation)
- Reiter v. Pneumo Abex, LLC, 417 Md. 57 (2010) (insufficient causation where only general presence of asbestos in very large facility shown)
- Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496 (2011) (circumstantial evidence can suffice to show asbestos exposure)
- Little v. Schneider, 434 Md. 150 (2013) (explains opening‑the‑door doctrine and relevance expansion)