Wallace & Gale Asbestos Settlement Trust v. Carter
65 A.3d 749
Md. Ct. Spec. App.2013Background
- Appellant Wallace & Gale (W&G) filed for Chapter 11 bankruptcy in 1985; liability for asbestos claims was transferred to appellant via a 2001 reorganization plan.
- Four asbestos-related wrongful death/survival cases—James, Lawrence, Carter, Hewitt—were consolidated for trial in Baltimore City in 2011.
- “Use plaintiffs” were named to represent nonjoined statutory beneficiaries; they were not formal party plaintiffs.
- Jury awarded combined damages to plaintiffs and use plaintiffs; post-trial motions challenged use-plaintiff status, apportionment, and jury instructions.
- Court held use plaintiffs were not proper party plaintiffs due to Rule 15-1001 and Wrongful Death Act timing; statute of limitations barred use plaintiffs from wrongful death claims; Hewitt retrial ordered for apportionment issues.
- Court also reversed and remanded Hewitt for new trial on apportionment and affirmed other judgments, with limited remittitur for certain items.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use plaintiffs must join the action to recover damages | Muti requires timely joinder of use plaintiffs; failure to join bars recovery | Use plaintiffs are not formal parties; joinder not required | Yes; use plaintiffs must join; time-barred; judgments reversed for use-plaintiffs |
| Whether damages in Hewitt may be apportioned between smoking and asbestos exposure | Restatement 433A allows apportionment if a reasonable basis exists | Lung cancer injury indivisible; not allowed in Maryland | Apportionment permitted; remand for new trial on apportionment; Kerby testimony excluded previously was error |
| Whether jury instruction on duty to inspect/test (state of the art) was proper for supplier/installers | Instruction properly distinguished manufacturer vs. supplier-installer duties; state-of-the-art concept applicable | Instruction improperly equated supplier-installer with manufacturer; misleading | Instruction, overall, proper; no reversible error; no prejudicial impact |
Key Cases Cited
- Walker v. Essex, 318 Md. 516 (1990) (wrongful death judgment must include all known beneficiaries)
- Muti, 426 Md. 358 (2012) (use-plaintiff duty to identify and timely intervene; relation back not available for three-year bar)
- Williams v. Work, 192 Md.App. 438 (2010) (all statutory beneficiaries must be either party plaintiffs or use plaintiffs)
- Ace Am. Ins. Co. v. Williams, 418 Md. 400 (2011) (adopted Williams rule; use-plaintiffs must be identified; harm limited to shares)
- Grand-Pierre v. Montgomery Cnty., 97 Md.App. 170 (1993) (relation back considerations for amendments involving new parties)
- Balbos v. Eagle-Picher Indus., 326 Md. 179 (1992) (nonmanufacturing suppliers may have higher duty when they install/handle products)
- ACandS, Inc. v. Abate, 121 Md.App. 590 (1998) (nonmanufacturers' duties to warn/discover in product liability)
- Dafler v. Raymark Indus., Inc., 259 N.J. Super. 17 (1992) (apportionment of damages between smoking and asbestos exposure under Restatement 433A)
- Gress v. ACandS, 150 Md.App. 369 (2003) (apportionment considerations in asbestos cases)
- Mayer v. N. Arundel Hosp. Ass’n Inc., 145 Md.App. 235 (2002) (restatement-based apportionment doctrine in Maryland)
- CSX Transp., Inc. v. Bickerstaff, 187 Md.App. 187 (2009) (FELA context—apportionment when evidence supports it)