*1 500 A.2d 1143 CORPORATION, et al. FIBERGLAS
OWENS-CORNING v. GARRETT,
Ralph et al. 117, Term, Sept. No. 1995. Appeals Maryland. Court of
Aug. 1996. Denied Oct.
Reconsideration *5 (John B. Pfeif- Sweeney, Douglas L. Lockwood P. Gregory brief); fer, Hooper on Lawrence L. Stockbridge, Miles & brief); (Scott L.L.P., on Tyding Rosenberg Patrick Burns & (Louis Close, Jr., Padraic McSher- and Warren N. Weaver G. brief), Morton, Whiteford, Preston, L.L.P., Taylor on
ry & Baltimore, appellants. for (Ann Nocholl, Ritter, Ness, Motley, Baltimore
Peter T. Poole, Charleston, SC;
Loadholt, Patrick Richardson & S. DC, brief); on A. Hoffman Guilfoyle, Washington, Shepard (Brian Smith, Parker, Rhoad, Kenneth R. & C. Gebhardt brief) Baltimore, appellees. MURPHY, C.J., ELDRIDGE,
Argued before RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
KARWACKI, Judge. suit in the Court for plaintiffs/appellees brought Circuit City against Baltimore numerous manufacturers and distribu- and strict liabili- products, alleging negligence tors of asbestos dangers products. for failure to warn of the of the asbestos ty from plaintiffs suffering Two of the were men asbestos-related mesothelioma, surviving and another was the wife of a man Their had died of mesothelioma. cases were consolidated
who Today issues raised in for trial.1 we address numerous *6 following from entered the consolidated appeals judgments found trial, in which of the direct defendants were liable three of compensatory damages amounts by varying one of against were assessed those punitive damages all the com- liability defendants. We affirm verdicts and reverse the .damages jury, awarded pensatory lack of clear and damages award for sufficient con- punitive evidence actual malice. vincing of
I.
A. Overview resulting brought damages
These suits were to recover from exposure experienced by Harvey Scruggs, Ralph asbestos Garrett, All and William Hohman. three men worked with or variety of pi’oduets years jobs, asbestos for several in a near in the and later following paragraphs described more detail Scruggs to our opinion analysis. in the when relevant Mr. instituted, Garrett, have still alive when suit was since Mr. mesothelioma, of a rare form of cancer malignant pleural died to be experts exclusively by believed medical caused almost Scruggs, to and inhalation of asbestos dust.2 Lenora exposure Hannon, Jr., plaintiffs grouping The trial also included Norman 1. Saul Holland,' Wojciechowski. and Edward Their cases are before us. surrounding lungs pleura, The membrane is called the viscera up Malignant pleural cells. which is made of mesothelial mesothelio malignant pleura. Although ma is the tumors in the occurrence benign (rarely) can be and can occur in other mem mesotheliomas cells, pericardium linings up branes or made of mesothelial such as stomach, surrounding peritoneum surrounding the heart or the commonly pleural simple malignant term "mesothelioma” denotes a 1995); Dictionary, (26th See Medical ed. tumor. Stedman's Dorland’s (28th 1994); Dictionary, ed. Illustrated Medical The American Medical (Charles M.D., ed., Encyclopedia Clayman, Association Medicine B. 1989). theorizing what after decades of and research on causes mesothelioma, epidemiological study published in the seminal Journal essentially the American Medical Association confirmed asbestos estate,3 and Louis Scruggs’ of Mr. personal representative as estate, Bittner, representative of Mr. Garrett’s personal as in this appellees as at trial and are plaintiffs were substituted and his wife in 1986 of mesothelioma case. Mr. Hohman died his representative personal instituted suit both Jeanette behalf; trial and during on her she too died estate and own estate, daughter, her her Victo- personal representative mother’s plaintiff as a her Croghan, ria was substituted personal represen- and as the successor wrongful death action the third tative of the estate of William Hohman. She is convenience, however, refer in this For we will appellee case. mesothelioma, than their to the who died of rather three men discussing present- when the issues personal representatives, appeal.4 ed this defendants/appellants
The three before us are Owens-Corn- *7 (hereinafter “OCF”), Hay- Porter ing Fiberglas Corporation (hereinafter “PH”) Owens-Illinois, and Inc. den Company (hereinafter “OI”). PH was an insulation distributor and and installer in industrial facilities around Baltimore. OCF containing asbes- products 01 manufactured and distributed tos, From notably pipe and boiler the late 1940’s insulation. study primary is a that, cause. The of asbestos insulation workers showed twenty years beginning study after more than from of the asbestos, participants’ exposure grossly these workers “sustained cancer, mesothelioma, mortality lung gastrointesti and excessive from Castleman, Legal Barry Asbestos: nal cancer....” I. Medical Selikoff, al., (1990),
Aspects, citing Exposure et “Asbestos IJ. (1964). Neoplasia,” 188 JAMA 22-26 An extensive overview of Dr. Court, ACandS, study appears opinion Selikoff’s in a recent of this Inc. 116, Godwin, 334, 363-64, (1995). v. 340 Md. 667 A.2d Africa, elsewhere, Italy, Asbestos is a fibrous mineral mined in qualities. significant useful for its heat resistance Workers inhale fibers, effectively lungs' asbestos which cannot be filtered natural protective they Exactly mechanisms because are too small. how the malignancy fibers cause in the mesothelial cells is not known. joined Scruggs also her husband in a claim for loss of Lenora had 3. original complaint. consortium in the III, E, part infra, specific legal In section we discuss issues concern- ing Croghan’s Victoria substitution for the late Jeanette Hohman in wrongful Jeanette Hohman’s death suit. an insulation 1953, Kaylo, and distributed manufactured OI 1958, OI although From 1953 containing asbestos. material distributed Kaylo, OCF the manufacturer was still facili manufacturing 1958, Kaylo bought in OCF product; manufacture and distribute continued to from OI and ty introduced. Kaylo was 1972, asbestos-free until when in consolidated this cross-claim defendants direct and other cross- liability of although this appeal, parties case are not III, in part addressed issue and will be is an claim defendants B, section infra. Harvey Scruggs
B. mechan- an Scruggs equipment Mr. From 1968 to Bay Coast Guard at the Curtis journeyman apprentice ic Navy. employee as a civilian in Baltimore Shipyard time, was also Scruggs Mr. period two-month for a those four During a pipecoverer. worked as trained to be and mostly testimony, he worked according to his own years, cutters, exposed rooms Coast Guard engine the boiler and products: daily to asbestos and boiler engine in the working were
“Q. you When prod- the dust from the asbestos rooms, Scruggs, did Mr. your hair? get ucts Yes,
A. sir. your it nose?
Q. get Did
A. Yes. mouth? get your Did it
Q.
A. of it did. Some *8 any like at the end of clothes look your did
Q. What day? particular dusty, my dusty, my glasses were Dusty. My face
A. dusty.” hair was in dust came at trial that the asbestos testified Scruggs
Mr. an Kaylo, sawing cutting of OCF daily from the part form, in pipecovering in available block insulation thus Kaylo was described in which he worked. boiler rooms produced by OCF: marketing in a 1956 brochure white, calcium Insulation, hydrous rigid a Block “Kaylo® Ow- manufactured developed and silicate heat insulation nationally by and distributed Company Glass ens-Illinois effectively insulates Owens-Corning Fiberglas Corporation, ° Kaylo F. to 1200 equipment up heated indoor and outdoor insulation, high heat offers excellent Block Insulation high temp- variety resistance to a strength and moisture material, it con- A chemically-reacted erature installations. for reinforcement.”
tains asbestos fibers Helser, Jerry 15% asbestos. approximately contains Berlin, in New Kaylo plant at the supervisor control quality fibers were critical 1960’s,testified that asbestos in the Jersey as a reinforce- Asbestos served Kaylo. production to the block form ment, together to hold solid bonding agent, or a which, combined and heated of minerals when variety reacted to form the autoclaving process, in an pressure under or by cutting The dust created calcium silicate. hydrous could inhaled. asbestos fibers which be sawing Kaylo contained co-worker, Kaiser, also testified and a Donald Scruggs Mr. mate- shipyard delivering PH trucks at the asbestos seeing of the
rials, products and the of a number including Kaylo cross-claim defendants. pipecover- where asbestos ships
After 1972 the areas all those who except was used were off-limits to workers ing continued Scruggs Mr. actually pipecovering. installed jobs in a series of office until December working Navy for the diagnosed months after he had been with three trial, during testifying died after a mesothelioma. He the courtroom. videotaped deposition Ralph
C. Garrett In worked full-time for Ralph approximately Garrett Maryland Shipbuilding Drydock, as a year pipecoverer block, and cement using variety pipecovering, of asbestos in the his video- products ships yard. insulation Mr. described the taped deposition jury, shown Garrett dust the block insulation: using created *9 Garrett, type recall what was —what you Mr. do
“Q. you pipecovering with this asbestos work was done to? How was it used? have referred kind, Well, joints any and such put pipes
A. it was big that. And if it were a put be mud around which would the mud put of block on it and joint, they put pieces would you it a form. And would have hold, around it to make a snowman. you and it would make look like stuff, saw this time day long, you white all keep you That would from there until got you left. Garrett, I sawed you, yourself, Mr. do understand
Q. this insulation? Oh, yes.”
A. added.) time, to his testi- according (Emphasis During Moody, he used and that of a co-worker William mony insulation, as well as other asbestos and block pipecovering products. electrician, an and then went to work as
Mr. Garrett one he approximately year, around for testified that near co-workers who job Hospital on a at Crownsville worked creating using products asbestos covering pipes were during on his clothes. He identified got dust which asbestos ones that we used as “some deposition products his referred to his apparently said before.” This statement have Maryland Shipbuilding Dry- materials at testimony about dock; tentatively Kaylo. mention specifically Garrett did but Electric as an electri- 1955 he went work Western cian, thirty years. During for the next his where he worked Electric, regularly Mr. Garrett used tenure at Western with the containing asbestos. His work gasket cut material dust, created a small amount of asbestos but gasket material per at least twice also worked overtime weekends Mr. Garrett Electric; it on these for Western pipecoverer month as pipecov- to asbestos dust from the exposed shifts that he was asbestos) (the used to containing and the “mud” cement ering identified the brand joints pipes. again He seal they pipecovering used for at Western products names of the Maryland had used at products the same he Electric as who testi- His co-workers Drydock in 1942. Shipbuilding *10 used. products as one of the Kaylo trial also identified fied at the insulat- PH as one of tentatively Garrett identified Mr. witness, and around. One he worked with
ing contractors Lantz, PH contractor testified that was an outside John also 1957- during Electric insulation work at Western performing 59, other tasks. installing pipecovering among asbestos 1993, in and died mesothelioma developed
Mr. Garrett before trial.
D. William Hohman Company Hohman worked for Continental Oil
William “Conoco”) (hereinafter in 1986. from 1952 until his retirement helper, helper, loader variety jobs included mechanic His man, loader, fire engineers, equipment braker for the gauger, of mesothelioma inspector. As Mr. Hohman died safety and testify frequency in had to at trial his co-workers products of Mr. to asbestos exposure and Hohman’s proximity Biden, who worked as a steamfitter and asbestos dust. Otto Conoco, in Mr. Hohman’s the “boiler house” at described constant, Hohman, that “Bill exposure essentially testifying every job was on that was even done at William Hohman there house, in where asbestos was Continental Oil” the boiler constant use. Hohman, knew Mr. not all at trial
Because the witnesses exposure be on from which his could plaintiffs put evidence exactly asbestos Eyewitnesses identified which inferred. present plant were at the Conoco
products suppliers and Documentary plant evidence of during Mr. Hohman’s tenure. products, purchase also confirmed the of certain
operations in Mr. including Kaylo. the factual evidence We review III, C of the depth part opinion, Hohman’s case in section stated that note that some of the witnesses preliminarily but period. during use at Conoco relevant time History E. Trial complaints original plaintiffs named dozens
defendants, who were all automatically deemed to be cross- well5; claim only defendants as defendants/appel- three lants us today before were found liable. Presentation evidence in the consolidated trial on began April later, 22, 1994, Almost four months July jury returned In its Harvey verdicts. case of found Scruggs, jury jointly OCF and PH severally negligence liable liability strict for compensatory damages in the amount of $3.5 case, million. In the Garrett OCF and PH were found jointly severally damages liable for compensatory million. $1 case, the Hohman found all appellants three before us, OCF, PH, andOI liable for jointly severally compensa- tory No damages million. cross-claim defendants $1.5 were *11 for found liable contribution. Finally, jury the assessed puni- 5. All direct are automatically named defendants deemed have cross- against indemnity. claimed each other for contribution or See Joint Order, City Wrong Injury Master Pre-trial In re: Baltimore Personal and Cases, case, Death Asbestos File No. 89236704. In the instant ful directly only dozens of were initially, defendants sued but a handful jury remained as direct defendants when the was considering its verdicts. The remainder of the defendants the settled claims or were during pre-trial period dismissed other pen reasons the and the Some, all, dency bankruptcy. trial. Some the entered but not only. the case remained in as cross-claim defendants case, OI, OCF, PH, Packing the Hohman and as well as Anchor ACandS, and Garlock were direct defendants at the the end of trial. Industries, Wilcox, Armstrong World Engineer- Babcock & Combustion Fibreboard, ing, Corporation, Pittsburgh Corning GAF and were cross- liable, Packing claim defendants. Anchor and were Garlock found not they appeal. and are not involved in this case, OCF, Scruggs Packing In the PH and Crane were direct ACandS, Packing, defendants at end of the trial. Anchor National Industries, Fibreboard, Wheeler, Gypsum, Armstrong World Foster Garlock, Corporation, Corning Pittsburgh GAF and were cross-claim Packing Crane defendants. was found not liable is not in involved appeal. this case, OCF, Packing In the Garrett PH and Crane were direct defen- ACandS, Industries, Packing, Armstrong dants. Anchor World Fibre- board, Wheeler, Garlock, Electric, Corporation, Foster GAF General Owens-Illinois, Pittsburgh Coming Westinghouse were cross-claim Packing Crane defendants. was found not liable and is not in involved appeal.
this Scruggs in the against only damages of million OCF tive $1.5 notwithstanding judgment moved for OCF and 01 case. trial; a alternative, PH moved for and, in a new
verdict judge trial only. The proceedings new trial the cross-claims respec- noted their motions. Defendants all post-trial denied a writ we issued Special Appeals; tive to the Court appeals were briefed the cases on our own motion before of certiorari court. appellate intermediate II. to all three us are common
Certain of the issues before poses questions also appellant but each defendants/appellants, in the order present questions here unique itself. We them: shall address groupings which we failing his A. Did abuse discretion judge the trial events which potentially prejudicial declare mistrial based during plaintiffs’ during improper occurred trial and remarks arguments? closing all defen-
B. verdicts in favor of cross-claim Were evidence, special were the weight against dants unfairly to the direct defendants? prejudicial verdict sheets to sustain legally C. Was there sufficient evidence contributing jury’s that 01 substantial finding in Mr. Hohman’s mesothelioma? factor compensatory damages jury’s
D. Should the verdicts by the defendants/appellants be reduced against the three *12 other defen- plaintiffs of between amount the settlements dants? of Mr. wrongful Did Hohman’s claim for the death
E. Mrs. upon
Hohman Mrs. Hohman’s death? abate evidence, using clear and sufficient a legally F. Was there standard, part of malice on the convincing evidentiary actual jury’s to sustain the assessment Scruggs OCF case damages against OCF? punitive punitive instructions on judge’s jury
G. Were trial Moreover, judge did the trial violate OCF’s damages proper? process rights
due he to post-verdict when failed conduct a liability review OCF’s for punitive damages? Finally, was the evidence sufficient legally punish- twin goals ment and deterrence were furthered the jury’s assessment against of punitive damages OCF?
III.
A. Motions Mistrial in this case
Defendants/appellants complain judge trial abused his discretion in to a failing declare mistrial prejudicial based events during on which occurred trial and improper during remarks plaintiffs’ closing arguments. Al we do not though plaintiffs’ condone the conduct of attorneys, under the circumstances we find an do not abuse of discretion. parties’ We shall summarize the set arguments, then forth the law applicable analysis. and our
OCF, 01, and, PH, by adoption, they first contend were irreparably prejudiced by the highly improper closing argu- plaintiffs’ who, ments of attorneys, defendants, in the words of “repeatedly hurled criminal accusations and invectives” at Although them. the trial judge objections, sustained several counsel, plaintiffs’ warned the and issued two curative instruc- tions, defendants further complain judge’s that the trial efforts a halt put plaintiffs’ conduct “pathetically were inadequate.” example,
For Mr. counsel Hohman’s case stated in closing argument: is a
“This case of enormous proportions. The conduct of the defendant, defendants, of all of these is of great seriousness. case,
If it were criminal some them would be trial for murder.” judge
The trial the objections sustained phrasing, counsel’s stated, “Let’s any activity,” not mention criminal but did issue curative instruction the jury time. immediately Hohman’s counsel went on to describe his dece- dent’s death: *13 descrip- beyond injuries here almost enormity
“The wasting, suffocating, painful The horrors of slow and tion. here happened of what features
starving death. worst Hohman, Mr. Hannon, Mr. Garrett and Mr. way Mr. are the It’s worse than dying. toway tortured on the Scruggs were suf- shot, They to death. being beaten being worse than to two years.” six months from between unmercifully fered instructions, the same later, court’s the trial despite Minutes of the defen- criminality once to the again counsel alluded dants: TLV they what call the lawyers] use defendants’
“[The value.[6] know, if You someone defense, limit the threshold go day, if someone were go every were to work died, you until the boss every day poison the boss work compa But if the asbestos they know would call that. what it they call a every day, bit poisons a worker a little ny limit value.” threshold “deliberate, cold-blooded
He then accused the defendants for life.” disregard
Moreover, the defendants to analogized counsel plaintiffs’ recordkeep- “villains,” compared the defendants’ and further during the Holocaust. ing recordkeeping to the the Nazis dramatically, of mesothelioma They described the disease victims, its them claiming “hostage” that it “stalked” took one counsel stated that the Finally, “robbed” them of life. plaintiffs.
defendants “stole” the lives of the objections these most made to judge The trial overruled a motion counsel. He denied for by plaintiffs’ comments use after one counsel’s plaintiffs mistrial made several hours “murder,” stating that there was the term mistrial. The Court necessity granting “no manifest And I as it made. objection as soon was sustained for a request was no might state that there parenthetically would have the Court jury, comment which curative additionally, even if there had been made. And made one III, part limit value.” F of "threshold 6. See section for discussion time a manifest necessity, counsel have waived *14 that by letting pass it until now.”
One the defendants’ counsel requested then an immediate instruction, curative a request which was joined by some but all of the other attorney defense counsel. The who did not join in request expressed the concern that giving the curative instruction so after long the remark would improper “make worse,” matters a concern which judge the trial apparently heeded only as he made a veiled to improper reference the remark: jury,
“Members of an objection during the there was Mr. Hoffman’s I opening argument, objec- and sustained that tion. Disregard the comments that were made Mr. at Hoffman time. We advise you you should disregard those comments.”
Finally, closing just after arguments jury and before the began deliberations, its trial judge the reiterated his curative instruction, to the saying jury, “Comments made analogizing this case to criminal cases are must improper totally be disregarded by you your deliberations.”
OCF argues prejudice also the to its case from the improper of opposing remarks counsel compounded by was trial, other which circumstances occurred during the rendering fair trial impossible. Hohman, Mrs. decedent William Hohman’s wife who was pursuing trial, his claims and her own the died of a heart (not courtroom). during attack the trial in the The trial judge jury determined that right members had a know her them; death and transcript informed “gasps” reflects from All jury. time, defendants moved for mistrial at that which was denied.
Mr. Scruggs, who had appeared testify only court earlier, weeks during objected also died the trial. Defendants judge’s to the trial decision to inform the jury his death as highly prejudicial, but trial judge determined that jurors needed to know of Mr. Scruggs’ death informed them. The transcript again reflected “sighs” “gasps” again a mistrial was motion for jurors. Defendants’ from denied. occurring during plaintiffs of two
In addition the deaths weeks while the trial, for three proceedings were halted witnesses, ill; plaintiffs’ William one judge trial left the testifying, while pains chest Whitley, experienced from the courthouse and had to be removed abruptly, stand ambulance; counsel had to withdraw finally, OCF’s lead family the trial for rea- halfway through representation from moved for a After each of these instances defendants sons.
mistrial, judge explained time. The which was denied each Whitley’s Mr. the circumstances behind length to the illness on the stand. sudden OCF, incidents, “contaminated the according
All of these *15 remarks of and, prejudicial in combination with the trial” ef- any curative “transcended complain, which all defendants cautionary instructions.” of the trial court’s fect suffered, point defendants prejudice they
As evidence any defendant to find cross-claim jury to the failure liable, to the vitriolic attributing findings part the jury’s at the direct defen- only counsel by plaintiffs’ attacks directed plaintiffs’ maintain that evidence dants. Defendants far was to the of certain cross-defendants exposure products defendants, and than the direct greater against the evidence verdict for the cross-defendants and jury’s therefore that the as the interpreted defendants “must be against direct by plaintiffs’ attacks prejudicial improper result of the counsel.” of a judge’s
In trial denial mistrial reviewing the motion, ruling showing disturb the absent clear we will not Soc’y Liab. Ins. v. of discretion. Medical Mut. abuse 103, Evans, (1993); 1, 19, 112 State v. 330 Md. 622 A.2d Hawkins, 270, 277, (1992); 489, White v. 326 604 A.2d 493 Md. (1984);
State, 201, 719, 737, 210 v. Md. 481 A.2d Jacobson 300 (1967). 108, 116 Julian, 561, trial 549, 246 When Md. 229 A.2d discretion, alternative solu they judges “balanc[e] exercise one to in order advance the apply, tions and which deeid[e] 518 State, 360, justice.” 367,
interests of v. McCloud 317 Md. 564 72, (1989); State, 426-31, 75 423, A.2d Colter v. Md. 297 466 (1983). 1286, A.2d 1288-90 question
Our
determining
first
abuse of discretion
if
denying mistrial motion
is
to what extent
movant
Evans,
19-20,
prejudiced
denial. See
Godwin,
Evans,
atMd.
plaintiffs’ flourishes, as counsel oratorical melodramatic but prejudicial Using defendants. alarming terms such “stole,” “robbed,” “hostage” “stalked,” although not approved, likely are not to influence a reasonable unfair- ly. plaintiffs’
We admonish
counsel for their repeated refer
*16
ences to murder and
to
analogies
“Nazis” and the “Holocaust.”
Such terms
unduly
moreover,
are
inflammatory;
they raise
certain images
specters
which
extremely
could be
upset
ting
unfairly
jurors
influential to
may
personal
who
have
experience
persons
with the
and events behind the terms so
carelessly tossed about in the courtroom. As the Court of
Special Appeals
Alexander,
in
stated Alexander &
Inc. v. B.
Assoc., Inc.,
672,
Dixon Evander
Md.App.
&
88
519 trial, a is function of truth, principal the supposedly which than heat.” much more light assisted Hall, v. Corp. A.2d 702-03. See also Keene
Id. at 596 at (1993). 644, 666-67, 997, 1009 A.2d Md.App. plaintiffs’ in nature of certain remarks Despite improper the find that defendants were arguments, we do not overall closing his discre- judge that the trial abused unfairly prejudiced such First, judge trial in to a mistrial. the failing grant tion separate remedy problem to the with two actively sought moreover, instructions; noting correct in he is curative request did not a curative instruction defendants’ counsel have, request a mistrial they should nor did defense counsel the proper during the time trial.
Second, testimony of trial jury through the sat four months documents, exhibits, and heard through reams of sifted arguments. not believe the utterance closing hours of We do unquestionably improper phrases, of a few words and while jury, attempt passions conscious to inflame truth jury’s among to cancel out the search for enough to manifest voluminous To hold otherwise would be evidence. ability separate unfair and its
an mistrust of rhetoric from fact. although discourage exactly wish
Finally, heartily we case, in we type argument plaintiffs’ counsel made this trial a four-month case justify remanding cannot new pages thousands of eighteen with boxes record and extremely case was well-tried. transcript when overall the in any counsel future imply way We do mean judge performance cases should assess the the trial indulge improper then it is safe to determine whether remarks; contrary, unwilling we to find although are here, unfairly prejudi- undue another case which prejudice opposite cial rears its head result argument ugly might outcome. mean that the trial did not abuse simply judge We his discretion when he evaluated the conduct of entire trial, against four-month remarks weighed improper *17 backdrop, determined that mistrial granting a would not just. be complaint prejudicial during
OCF’s about other events trial barely Scruggs obviously worth comment. Mr. dying was cancer, aware; fact of jury which the his fully death prejudicial trial was during hardly certainly and most had death, jury. be communicated to the Mrs. Hohman’s while discern, was not we can unexpected, prejudicial any way gives merely OCF us no assistance. OCF states fashion trial conclusory that the was “contaminated” but does explain how or nor does OCF how why, explain the other unforeseen events trial unfair during prejudice. caused it it extraordinary We find that OCF one complains breath judge that the trial was ill for three weeks asserts his mistrial, illness as a foundation for and in next breath asks for a mistrial based on its personal own counsel’s reasons for (the son). withdrawing from premature the case birth his argument OCF’s that the numerous unfortunate events which during occurred trial unfairly prejudicial were lacks merit entirely.
Nor we remotely persuaded jury are that the verdicts in favor of the cross-defendants are proof prejudice. of unfair section, As we presented discuss the next from the facts trial, a during jury reasonable could easily have believed that the direct defendants liable were and the cross-defendants Moreover, earlier, were said argument not. as we this implic- itly denigrates jury by assuming that few inflammato- ry made remarks about direct so defendants would cloud its judgment jurors render would verdicts against weight presented. suspicion facts We have no such that the jury swayed would be so easily by emotion that it would duty, forsake its sworn especially after four months’ invest- ment of time and energy.
B. Cross-Defendants’Liability PH
OCF and ask us find that verdicts in Garrett, Scruggs, and Hohman cases in of all favor cross- *18 They of evidence.” weight the the were “against defendants made counsel closing plaintiffs’ during arguments contend that liability of admissions” evidence sufficient “binding addition, introduced. had been against cross-defendants OCF, that the by argument, adopted PH makes an extensive cross- so to favor the unfairly written sheets were verdict defendants, asks us to the direct prejudice defendants and find not granting his discretion judge trial abused the cross-claims. Their new trial on the PH’s motion a are not arguments persuasive. longstanding reiterate first order of business
Our
court
appellate
of an
province
law that it is not the
Maryland
of
evidence
weight
the
the
opinion regarding
an
express
Fowler v.
verdict. See
reviewing
jury
a
judgment
when
(1967)
Benton,
545,
556,
(judging
540,
A.2d
560
245 Md.
226
alone); Gray v.
jury
province
the
of the
weight
evidence is
879,
Inst.,
84, 224
80,
A.2d
881
Patuxent
245 Md.
Director of
419,
Prod.,
420,
231
(1966);
v.
Md.
Benkoe Plastic Assembled
(“When
(1963)
reserved,
pass
we
638,
properly
639
190 A.2d
jury,
case to the
but
the
of evidence to take a
upon
sufficiency
has
after it
been
weight
do
review the
of the evidence
we
not
State,
Cas. Sur. Co. v.
162
jury”); Aetna
&
passed upon
49,
45,
(1932);
Alford, 114
56,
A.
48
v.
Md.
Md.
158
Stouffer
Weitzman,
(1910);
110, 116,
387,
v.
93
78 A.
389
Fraidin
denied,
1046,
(1992),
168, 193-94, 611 A.2d
1059
cert.
Md.App.
(1993).
109,
jury
if a
verdict is
Md.
329 findings of fact cannot sense that certain “inconsistent” other, normally will with each we logically be reconciled in a or criminal case. jury’s reverse a verdict either civil 1344, State, 583, 594, (1984); v. 479 A.2d 1349 Mack 300 Md. Balbos, 35-36, Indus., 10, Md.App. Inc. v. 84 578
Eagle-Picher 662, State, 647, 228, (1990); Md.App. 82 573 Steffey 240 v. A.2d (1990). A.2d 77 law, reject
Thus, we almost as a matter hornbook of the evidence. argument regarding weight defendants’ territory and invade the We refuse to re-evaluate evidence suffi- cross-defendants was jury. against evidence cient to be jury, submitted to the and in any obviously case defendants/appellants would not wish to argument make an that, insufficiency. Beyond and the jury only has the power to assess weight evidence, power which passes to the trial judge’s discretion upon motion for a new trial. Weissman Hokamp, v. 197, 201, 188 171 Md. A.
(1937).
Lest we are suspected merely misinterpreting defen- dants/appellants’ apparent argument we to re- ought weigh presented evidence jury, to the we note that we (each thoroughly combed both sets of briefs defendant/appel- adopted lant argument) the other’s and our transcript of oral argument to ensure that our reading was correct. Perhaps, *19 for example, phrase “against weight of the evidence” was being used as a less than precise way of saying the trial judge abused his discretion in not a granting motion for a new (as trial on the cross-claims PH actually argues) rather than as a simply legal term of art. quote We the subheading from the OCF brief:
“THE JURY’S FAILURE TO FIND EVEN ONE CROSS- DEFENDANT LIABLE FOR CONTRIBUTION WAS AGAINST THE WEIGHT OF THE EVIDENCE.” (but detail) OCF went on to summarize in some the evidence against case, cross-defendants in each in argued conclusion that jury’s failure to find even one cross- defendant liable “plainly was against the of weight the evi- dence, and requires entry judgment in favor of Owens- Corning against defendants, these cross claim or alternatively, a remand for a new trial.” PH OCF and “plainly” misunder- stand basic appellate review of judgments on jury verdicts.
We also note that mystified we are by OCF’s insistence that plaintiffs made “binding” admissions as to the liability during argument. cross-defendants plaintiffs’ counsels could not “bind” the jury, parties nor they whom did represent, to liability simply because they to the argued jury had they introduced sufficient evidence to hold certain cross-defendants liable. OCF’s position is illogical; assess- plaintiffs’ with the clearly capable disagreeing case, in the and apparently of the evidence weight ment of did so. verdict sheets. allege
OCF and PH two defects First, was treated liability of direct and cross-defendants case; for each separately plaintiffs the verdict sheets defendants, party all argued regardless defendants status, single questions.7 should included a set of Other- be provides example Mr. case an of the 7. The verdict sheet in Hohman’s questions treating separate direct defendants and cross-claim defen- dants: proven preponderance Has of the evidence that 4. Plaintiff any parties predecessors negligent were of the listed or their manufacture, supply, any installation distribution of and/or asbestos-containing products? (Negligence.) a) Packing Anchor Yes No X b) No X Garlock Yes c) Owens-Coming Fiberglas Yes X No d) Yes X No Owens-Illinois - e) Porter-Hayden Yes X No cross-plaintiffs, regard do to the cross-claims asserted you they proven by preponderance have find any negligent were evidence that the cross-defendants installing manufacturing, supplying, distributing asbes- and/or *20 products exposed tos-containing to which Hohman Mr. substantially contributed to Mr. Hohman’s mesothe- which (Negligence.) lioma? ACandS,
a) Yes No X Inc.
b) ArmstrongWorld Industries, Yes No X Inc.
c) Yes No X Babcock & Wilcox d) Combustion Engineering No X Yes e) Yes No X Fibreboard f) Corporation Yes No GAF X
wise, may according theory, presentation to defendants’ “the status jury.” party have confused the As evidence distinctions on the verdict sheets did confuse verdicts, PH a points result out that as cross- “illogical” 1) (see in the Hannon case footnote OCF was claim defendant but was liable as a direct defendant liable, not found Garrett, and Hohman cases. Scruggs,
Second, defendants/appellants argue both the trial court also combined the issues of “substantial improperly “negligence” factor causation” and into one cross-defendant asking separately while the same two issues two question, .8 PH contends the combination of questions direct defendant g) Pittsburgh Coming - Corporation X Yes No Compare questions question the two direct defendant below with involving only in footnote 7 cross-defendants. you by preponderance 3. Do find of the evidence that William E. manufactured, products supplied, exposure Hohman’s install by any parties prede ed distributed of the listed or their and/or development cessors were a substantial factor in the of his mesothelioma? - a) Yes No X - b) Garlock Yes No X c) Owens-Coming Fiberglas Yes X No d) Owens-Illinois Yes X No e) Porter-Hayden Yes X No proven by preponderance 4. Has Plaintiff of the evidence that any parties predecessors negligent or their listed were manufacture, supply, any installation distribution of and/or asbestos-containing products? (Negligence.) - a) Packing Anchor Yes No X - b) Garlock Yes No X c) Owens-Coming Fiberglas X Yes No d) X Owens-Illinois Yes No e) Porter-Hayden Yes X No
525 “ef question in one cross-defendant negligence causation answering with jury fectively possibility eliminated that direct impression ... created any specificity [and] differently.” may be treated and cross-defendants Mary found in “special The law verdicts” governing 2-522(c), provides: Rule which land to return require jury may court Verdict. —The
“Special upon specific findings in the form of written verdict special method of may any court use purpose, For that issues. findings as it written requiring the issues and
submitting ques- of written including the submission appropriate, deems forms of the answers or of written susceptible tions brief under be made findings might properly special several jury instruct the and evidence. The court shall pleadings upon findings it to make its may necessary be to enable each issue.” authority design 2-522 the trial court gives
Rule jury’s findings. as format the submissions to the as well that special have observed before Maryland appellate courts or multiple parties are often useful cases with verdicts Holz, 434, 446, See, 290 v. 265 Md. e.g., issues. Kruszewski Walston, 534, (1972); Md.App. 15 Cab Co. v. A.2d 541 Sun 559, (1972), 298 113, 161, 804, 267 Md. aff'd, 289 A.2d 829-830 Lascola, Stores, (1973); v. 31 Md. Fair Inc. A.2d 391 Food (1976). 161-65, A.2d 762-64 defen App. allegations nothing beyond conclusory presented
dants have certainly which is prejudicial, the verdict sheets were in this case judge to find that the trial sufficient for us accept cannot authority design. in their We overstepped his direct defen against that the verdicts argument the circular prejudice. were We “proof’ dants and for cross-defendants were found to be illogical do not find it that certain defendants cross- in one case and not liable as directly plaintiffs liable utterly The scenario is plaintiffs in another case. defendants Moreover, combining how simply grasp we do not plausible. *22 an ultimate factor causation and
the issues of substantial jury or “confusing” prevented of was to the finding negligence “specificity.” with answering them from the jury from the verdicts appears quite plain
It as to direct persuasion carried their burden of plaintiffs carry defendants, cross-plaintiffs as did not but the defendants Defen- to cross-defendants. persuasion burden of their deliberations, but like the outcome of the may dants The trial judge’s prejudice. have not demonstrated they was not an a new trial on the cross-claims grant refusal to abuse of discretion. Liability in the Sufficiency Evidence OI’s Legal
C. of of Hohman Case of legal sufficiency the of the question
We now turn to contributing a substantial Kaylo evidence that OI the in mesothelioma. factor Mr. Hohman’s In the late helpful.
A of the facts will be brief review 1953, 1940’s, OI Kaylo. manufacture of Sometime began OI for the line responsibilities turned over the distribution 1958, manufac stopped of OI subsidiary April to its OCF. Kaylo product and sold its altogether asbestos turing products line to OCF. Hohman, facility who worked at the Conoco
William of until his retirement City April Baltimore from in that did not “bystander,” termed a he was what we have but was in the products with the asbestos directly work In order for products where such were used. vicinity of of action legally against to have a sufficient cause Hohman causative products he must that 01 were a substantial prove stated what has in his illness and ultimate death. We factor “frequency, regularity, proximity” as the come to be known Indus., in Eagle-Picher for substantial factor causation test v. Inc. Balbos: any any given bystander the of exposure
“Whether sufficient to supplier’s product legally will be particular fact specif- a of substantial-factor causation is permit finding interrelationship involves the finding ic to each case. workplace at product a defendant’s the the use of
between This workplace. of the the plaintiff and the activities characteristics of understanding physical of the requires an activities relationship between the workplace bystander plain- and the product of direct users of context, include the factors to be evaluated tiff. Within use, its product, frequency the nature time, of use and in to the plaintiff distance proximity, of that regularity exposure plain- product, addition, Tn courts product. use trial tiff to the as to medical causa- presented must consider the evidence ” *23 plaintiffs particular tion disease.’ (citations omitted).
Balbos, 210-11, at 604 A.2d 460 326 Md. at on evidence put competent no plaintiffs OI contends that Hoh- that, from when period April, during relevant Conoco, April, until when OI sold the man work at began line, Kaylo to an extent exposed Mr. Hohman was to Kaylo test of causation. meet our substantial factor would Thus, by allowing court that the trial erred argues OI judgment not for OI. granting issue go OI, court’s based on trial denial its alleging error Upon must a standard. a judgment, high motion for meet all judgment, motion “the court shall consider evidence party against in the most favorable to the light inferences 519(b). made.” Rule whom the motion is Md. 2— mesothelioma, in 1986 of his he Because Mr. Hohman died Instead, Kaylo pro- his evidence that testify. was unable factor in his meso- developing duced OI was a substantial his on of several of co-workers at testimony thelioma rests documentary Kaylo was plant; the Conoco evidence period; facility during used the Conoco the relevant time at testimony Roggli. Dr. Victor and on the medical plasterer. during union He testified that Lloyd Urps was a sixties, during the fifties and he worked as numerous summers “practically every summer” between pipecoverer, facility Mr. 1958 did so at the Conoco where he Hohman Urps worked. further testified that he used a vari- ety of products asbestos facility, the Conoco including round pipecovering asbestos He product. identified this prod- uct Johns-Manville, as manufactured by but also stated that Kaylo pipecovering was used. Finally, Urps testified that he used asbestos block at the Conoco facility. was Urps acquainted with Hohman and could not testify Hoh- exposure. man’s E. Whitley
William was an asbestos worker beginning 1940’sand continuing until his retirement in 1982. During his career, Mr. Whitley began as an apprentice, and became a mechanic, foreman, superintendent, and Mr. manager. Whit- ley testified that he worked at the Conoco facility sporadically (1952-1958). during the relevant time period He identified products asbestos in use at that time as “[pjipecovering products Johns-Manville, were 85 percent mag. Pipecovering and block. We used some Owens- Corning, Kaylo, pipecovering and block.”9 Whitley, like Urps, did not know Mr. Hohman during the relevant period, time and therefore could not testify regarding Hohman’s exposure Kaylo. to OI
Hohman’s best evidence provided was by Otto Biden. In a twist irony, Biden subpoenaed to testify by OI.
Biden’s own asbestos-related suit he had only testified that the *24 product asbestos that he remembered being used at the Conoco facility produced was trial, Armstrong. At this however, Biden also was able to recall another prod asbestos uct, but could only remember a “K” large on the box. More importantly, Biden also placed Hohman in close proximity to asbestos dust during the relevant period:
“Q: you And in were and out of Continental Oil 20 times or
more over years? the points Whitley's OI out that Mr. testimony regarding precise the dates Kaylo clear, that he used at the facility Conoco was unclear. It is however, jury that Kaylo a could infer during was used the relevant period. time was, sir. yes,
IA: probably at in boiler house 1950s, Now, you in did work Q: all Continental? at
A: Yes. at in boiler house 1950s, you worked In the when
Q: around, he? wasn’t Continental, Hohman was Bill A: Yes. unit on the 1960s, worked outside you in the when
Q: And around, were, Hohman was all Mr. pipes where wasn’t he? job Hohman, every on was there Bill Hohman
A: William Oil. was even done Continental to there? job of his be part that was Q: Because go to work. piece a give you paper had to A: He ’50s, in room the Now, the boiler you when worked Q: generated was Bill when the dust Hohman around was the pipecovering? from boiler room.” every job
A: had to be He proximity Hohman close way, Biden places In this in con- Whitley, testimony Urps work. asbestos Kaylo indicating purchase junction with invoices jury which the from facility,10are further evidence Conoco Kaylo frequently was that OI reasonably could infer period. time during Conoco the relevant used at regularly disease, on asbestos-related expert an Finally, Roggli, Dr. that, caused Mr. exposure in his asbestos opinion,
testified him.11 Mr. that killed the mesothelioma develop Hohman to 27, 1954, clearly January these invoices October 10. Dated plant. OI While Kaylo purchased for Conoco that OI was indicate “small,” well purchased could amount characterizes the representative merely invoices. were infer that these long portion Roggli’s day testimo- excerpted a from Dr. 11. OI has small Roggli not believe that OI’s ny that Dr. did futile effort show injuries. contributing in Mr. Hohman's factor substantial *25 530 proof
Hohman’s substantial factor similar to causation is Godwin, that offered Ira approved Russell 340 Md. 353-55, that, 667 A.2d at We under 125-26. hold Balbos test, “frequency, regularity proximity” a legally sufficient case was out in the against 01 made Hohman case.12 Among Contribution Tort-Feasors Act D. Uniform urges reject OI that this Court its long-standing interpreta tion of the Among Uniform Contribution Tort-Feasors13 Act [“UCATA”], (1957, Repl.Vol.), §§ Md.Code Art. 16- new adopt joint a definition of tort-feasor. We decline to do so the reasons set forth below. original complaint filed the Hohman case named (24) trial,
twenty-four
Prior to
defendants.14
settlements were
contrary,
Roggli’s
To
testimony
Dr.
entire
he
indicated that
believed
(direct
every
exposure
significant
exposures lasting
to asbestos
several
months) is a
contributing
example,
weeks or
substantial
factor. For
brought
Roggli’s
when was
may
it
Dr.
attention that Hohman
have
significant
exposure during
had a
asbestos
his service in
United
Navy,
Roggli agreed
exposure
States
Dr.
that that
would
have
also
been
contributing
a
injuries.
substantial
factor in Mr. Hohman's
drift,”
12. OI
solely
has characterized Hohman’s case as
"fiber
based
Balbos,
theory
rejected
we
causation that
too attenuated
216-17,
supra,
(1992).
Not all of the defendants were Co., Garlock, Packing with Anchor proceeded and the case review, Inc., OCF, To the OI and PH as direct defendants.16 defendants, turn, cross-complaints brought direct remaining defendants, none of the cross- but against settling certain nor successful; Packing neither Anchor Gar- claims was and OCF, 01 jury, leaving only and lock was found liable the PH as liable defendants. defendants, of would have as one the three liable OI, against the previously negotiated offset the settlements
us in the Hohman case. The compensatory damages awarded deceptively simple. theory underlying proposal this million. If at family’s injuries the Hohman jury valued $1.5 the were both keep the of the Hohmans allowed $1.5 estates (OCF, jointly severally million from the liable defendants PH), from OI, and the obtained payments settlement cross-defendants, recovery jury’s exceed the valua would opinion, such a scenario is unfair injuries. tion of the In OI’s Inc.; Inc.; Co., Corning Corp.; Raymark Quigley Industries Southern Corp.; Gypsum Corp.; U.S. and U.S. Co. Textile Mineral Products Wilcox, Armstrong Engineering, World In- 15. Babcock & Combustion dustries, ACandS, Inc., Inc., Pittsburgh Corporation, Corning GAF Corp., Corp. and Fibreboard remaining plaintiff the Hohman case nor the direct 16. Neither original proceeded against certain other defendants for a defendants reasons, variety bankruptcy A including and lack evidence. list remaining in Hohman the final case direct cross-defendants the end trial is in footnote found defendants, to the liable perceived unfairness could be if easily only rectified we would broaden our definition of a “joint tort-feasor” to include those or sued threatened with suit. OI could then offset the settlement amounts as contribu- cross-defendants, tion by settling and the Hohmans’ es- only tates would recover the amount of money awarded jury-
To accept argument OI’s would us to require ignore plain of our meaning long UCATA statute and our it, standing interpretation which we refuse to do. The (1957, relevant “joint term tortfeasor” is defined in Md.Code *27 50, Repl.Vol.), § 1994 Art. 16: purposes “For of this ‘[¡joint subtitle ... persons tort-feasors’ means two or more jointly or severally injury liable in tort for the same to person or whether or property, judgment not has been recovered added). all against Moreover, or some of them.” (Emphasis right joint tortfeasors,” “[t]he of exists among contribution (1957, 50, 17, Repl.Vol.), § Md.Code 1994 Art. only among Co., joint tortfeasors. See Montgomery Mfg. v. Valk 317 Md. 185, 191, (1989). 1246, 562 A.2d 1249 case,
In the instant the cross-defendants were ulti mately by determined the trier of fact not be “liable tort.” Defendants judicially determined not to be liable are not joint definition, then, tort-feasors. By statutory the cross- joint defendants were not expressly tort-feasors and thus OI has no of right against contribution them.17
We have often that a recognized judicial determination of liability or non-liability question settles the of contribution.
See, Levin, e.g., 287, 293-94, Keene v. Corp. 330 Md. 623 A.2d (1993) (final 662, 665 judgment may not be until entered cross- determined, claim liability because if a cross-defendant holding settling OI contends that cross-defendants liable for 885(3) § contribution is consistent with and Comment thereto of the f Torts, (Second) permits Restatement which contribution non-tort- against enacting feasors to reduce the claim tort-feasors. our statute, Assembly UCATA explicitly rejected the General has the com- mon law rule set forth in the Restatement.
533 tort-feasor, of contribution right is a joint as a there liable Owens-Illinois judgment); amount of may reduce the which (1992) 47, 107, 124-28, A.2d 55-57 604 Armstrong, 326 Md. v. gives liability right admitting release
(joint tort-feasor’s damages); not punitive compensatory, but contribution Zenobia, 420, 473-75, Owens-Illinois, 601 A.2d 325 Md. Inc. v. (1992) (insufficient adduced at trial
633, evidence 659-60 tort-feasor); joint as a bankrupt cross-defendant liable hold (no tort- Valk, “joint one of contribution when supra right law); Allgood liability as a matter is shielded from feasor” (1986) Mueller, 355, 915, 350, (settling 513 918 307 Md. A.2d v. found not to be remained and were
co-defendants who
case
to their
payments
were volunteers as
liable
non-settling
who was found liable
defendant
plaintiffs,
it);
against
awarded
damages
entitled to reduction
not
(1984) (determi-
91,
197
Lopez,
v.
300 Md.
476 A.2d
Martinez
shares);
Der Ahe
Chilcote v. Von
Van
pro-rata
nation
(1984)
Lines,
106,
(computation
pro-
300 Md.
E. a Death of Hohman of Hohman’s
Mr. died June 1986. When Mr. Hohman, 1987, widow, did Jeanette instituted her suit she estate, representative so both as Hohman’s personal capacity During in her his widow. individual presents possible in which 18. The instant case thus easiest scenario tort-feasor, joint if where there is a to determine a defendant judicial regarding liability. more cases are determination difficult Welle, 613, 619, 428, 133 Swigert v. Md. A.2d 431 those described in 213 (1957), "[tjhe liability. specify Clearly, act some- does not the test of suffice; equally thing judgment of an we think it clear short actual will liability will not.” that a denial trial, course of the Jeanette Hohman died.19 Ms. Victoria Croghan was substituted as personal representative Hohman, estate of William her and as stepfather, personal mother, representative the estate of her Jeanette Hohman. substitution, objection there was no While the former latter sparked present has issue.
PH has asserted that wrongful Jeanette Hohman’s death action' cannot survive her death unless the substitute plaintiff is also capable instituting wrongful death action 3-904(a) (1974, individually. § Md.Code Repl.Vol.), the Courts & Judicial Proceedings primary Article limits wrongful death actions to those “for brought the benefit of the wife, husband, parent, and child of person.” the deceased 3-904(b) secondary Section limits beneficiaries to actions “for any the benefit of related to the person person by deceased blood or marriage wholly dependant upon who was the de ceased.” Because Hohman Croghan’s William was Victoria father, step-father, not her natural “wholly and she was not him, PH dependant” upon argues Croghan cannot serve that, therefore, as the substitute plaintiff the suit must abate.
At
partially,
argument
least
PH’s
is based upon language
Co.,
v.
Harvey Baltimore & Ohio R.R.
from our case of
70 Md.
(1888).
319,
law been in effect at the time of Mr. Harvey’s opposite result would have obtained. The new law provided that: action,
“No brought inju- hereafter to recover damages default, ries to the person by negligence or shall abate reason of the death of plaintiff, personal but the repre- sentatives of the may deceased be substituted as plaintiff and prosecute the suit final judgment [to] and satisfaction.” Chapter 262 of the acts of 1888. This new survival statute law, supplemented previously existing permitted which variety actions to survive the plaintiff. death of the Md. (1860), 2, § (“ejectment, waste, dower,
Code Art. partition, action, replevin, any personal or including appeals from judg- ”). by justices ments rendered peace ...
The subsequent history of ch. 262 is easy trace. It was 75, 33A, § originally codified at Art. immediately but recodi- (1888), 75, fied at § Md.Code Art. 25. It continued as Md. (1904), 75, 26, (1911), §
Code Art. 75, 26, § Md.Code Art. (1924), 75, 30, §
Md.Code (1939), 75, 30, Art. § Md.Code Art. (1951), 75, § and Md.Code Art. comprehensive code revision of 1957 apparently failed to continue the provision and it was “lost” until six years 1963, later. a corrective bill returned the provision to the statute (1957, books as Md.Code 1963 Cum.Supp.), § Art. 15B.20In part of the overall code revision process, this section was recodified as (1974), § Md.Code 6-401 of the Courts & Judicial Proceedings Article:
“Sec. 6-401. Survival of Actions.
(A) law, At law.—A real, cause of action at whether person- al, mixed, or slander, except survives the death of either party.
20. The new predecessor only enactment varied from its slightly in that commas, "hereafter,” it deleted two extraneous deleted the word concerning added sentence application provi- the retroactive sion.
536
(B) in the equity of action survives equity. right —A grant if the court can effective relief party death either spite the death.” 6-401(a) § is intended
The note makes clear that revisor’s to to code sections but not merely previous combine two the of a the of actions to survive death change types permitted Sp. § 2 of the acts of 1st Sess. party. chapter See case, un- the this the statute remains purposes Por changed.21 § a wrong of 6-401 indicates that language plain law, action, a at the personal may as action survive
ful death of either A similar result would obtain under party. death immediately acts 1888 as after chapter applicable of the decision, Harvey wrongful a death action is one the because by negligence.” recover to the damages person “to it controlling, of the statute is Although plain language the to a look the understanding useful confirm that with PH statutory public policy scheme the animates it. survival of a cause of action instituted argues permitting the secondary would benefi- by primary beneficiary displace Instead, analysis applying ciaries. This is incorrect. statute, if a
wrongful statutorily death we must ask defined primary beneficiary survived decedent and could file suit. suit, then beneficiary If that survives to file primary successor, If beneficiary, beneficiary’s or the can recover. suit, are to file living primary there no beneficiaries then secondary beneficiary secondary file suit. The beneficia- may secondary beneficiary’s death after ry, or the event institution, conclusion, suit, to prior but successor may continue the secondary beneficiary, judgment. suit secondary are nor primary living If there neither beneficiaries suit, file one for the may wrongful no recover decedent’s Croghan beneficiary’s primary death. Victoria was the suc- (b) Chapter making of the acts of 1988 added a new 21. subsection plaintiff. clear that actions in slander do not survive the death of (b) (c). The former subsection was renumbered as subsection cessor and as such can recover on behalf of Mrs. Hohman’s estate. we must purpose
The result reach is also consistent with the underlying wrongful deprived death statute. PH’s acts Mrs. Hohman of her and emotional sup- husband’s economic port eight years deprivation for the last of her life.22 This was her may not abated death. Her estate be smaller now than it would have been had her husband survived. Therefore it perfectly for the trial appropriate judge substitute Croghan personal representative Victoria of the estate mother, Hohman, of her wrongful Jeanette her death suit *31 PH.23 against
F. Punitive Damages Against Award OCF defendants, OCF,
Only one of the was found liable for in jury punitive damages, the case of Mr. Scruggs to exposure Kaylo during years his OCF 1968-1972. OCF argues strenuously that to plaintiffs failed meet their burden malice, proof punitive for of actual damages required by as
Owens-Illinois, Zenobia, 420, Inc. v. 325 Md. 601 supra, A.2d 633, products liability involving a strict action asbestos expo agree. sure. applicable apply We We review the law and it presented jury the evidence to the the instant case. The purpose punitive damages only is not to punish the defendant for egregiously plaintiff, bad conduct toward the but also to deter the defendant and others contemplating clearly agreed, awarding Croghan, 22. personal Victoria as estate, $250,000 representative of her mother's for loss of consortium $250,000 wrongful for death. Hayden’s opinion
23. Porter
reliance on our
in Stewart v. United Elec.
Power,
332,
(1906),
Light
misplaced.
&
104 Md.
538
of these twin
Our most recent reiteration
similar behavior.
ACandS,
case was in
liability
in an asbestos
purposes
products
361-62,
Godwin,
667
at 129
supra,
Inc. v.
As
in both Zenobia and
we discussed
conduct
monetary liability
egregious
of serious
imposition
if
standard
can
work as deterrent
future conduct
only
clear,
judged
predictable and
by which conduct will be
can thus conform their
persons
consistent and
behavior
Godwin,
362,
at
539 ” ” defraud, injure, generally or “intent to which “intent malice,” knowledge actual characterizes “actual is [1] defect [2] deliberate disregard consequences.’ to the state of mind of the two-part This standard looks defendant.” added)
Godwin,
359,
(emphasis
340
at
(citations knowledge requirement
To meet the
the Zeno
malice,
must show more than
plaintiff
bia test for actual
a
knowledge:
plaintiff
constructive
must show
“[t]he
actually
danger
defendant
knew of the defect and of the
of the
product
possession
at the time the
left the defendant’s
product
Zenobia,
462,
or control.”
Under Zenobia and who plaintiff suc defendant, cessfully knowledge shows actual of the thereby test, passing one of the Zenobia must then part demonstrate the defendant’s bad faith order to meet the second require ment:
“Additionally,
products liability plaintiff must show that
defendant,
having
knowledge,
such actual
exhibited a
or
disregard
potential
conscious
deliberate
harm to
Zenobia,
consumers.
Under Zenobia it is clear that no ‘negligence matter wanton, gross, outrageous, satisfy how or will not this Instead the requires standard. test a bad decision *33 faith the to market a product, knowing the defendant of defect
540 disregard in or the danger, conscious deliberate of to the the consumer.’ Id.” safety
threat
of
added).
Godwin,
360-61,
(emphasis
A.2d
128
Zenobia,
469,
(emphasis
325 Md.
We in manufacturing test to actions and market Zenobia OCF’s during exposed. time Mr. ing Kaylo Scruggs their determining plaintiffs failed to meet burden whether we punitive damages, considering are proof as that is weight presented plaintiffs, evidence rather, pass sufficiency we solely jury question; upon a case to the at all. See Benkoe v. jury the evidence take Prod., Inc., 419, 420, 638, 231 190 A.2d Plastic Assembled Md. (1963); Warnick, 77, 88, v. 227 Md. 175 A.2d 419 May Fisher, 278, 281, (1961); v. 225 Md. 170 A.2d Boob (1961). Therefore, we to find in this case shall have that the was insufficient as a matter of law for a reasonable evidence convincing to have found a clear and standard that Kaylo, actual and that knowledge dangers had OCF *34 despite to market its Kaylo OCF made a bad faith decision of the threat to the consumer. knowledge state of length general discussed at in Godwin the
As we
and its
concerning
to 1972
asbestos
knowledge up
the art
effects,
363-67,
129-32,
bestos Hazards and effect, why in theories as to it did argues, separate OCF two knowledge Kaylo’s not have the actual hazards. requisite First, was ex- Scruggs OCF contends that at the time Mr. or defec-
posed, Kaylo dangerous OCF did not believe was a product hoped” Kaylo’s tive because it “believed or health of the unique manufacturing process eliminated the risk Internal OCF documents from component Kaylo. asbestos mid-1960’s, in in case contained the voluminous record this presented jury, support and to the add to OCF’s contentions. of the dan- company potential
While officials were aware mishandled, if not convinced that gers they of asbestos were Kaylo, only which contained 15% asbestos and which was a heat-intensive chemical alteration produced through process, carried the same risks. One writer of a 1964 OCF memoran- study, supra, noting dum commented on Dr. Selikoffs n. chemically physically “during
that asbestos was altered autoclaving process presence lime” then stating possesses or not this altered asbestos “[w]hether inducing original same cancer tendencies as the asbestos later, years remains to be demonstrated.” Almost three very same individual his in an internal repeated questions reviewing confirming memorandum the latest studies asbestos carcinogenicity, asking, any, any, or could ‘‘[D]oes organic carcinogenic oils24 remain the asbestos fraction of theory prevalent during 24. Certain internal OCF memoranda advance a the 1960's that it was not the asbestos fibers themselves but certain up organic oils which made found asbestos and the other materials conditions to the severe subjected having after been Kaylo in the alteration be chemical there the autoclave? Would again questioned writer also lime?” The presence earlier to years three study done of the Selikoff applicability insulations, concluded: calcium silicate and other only by inference is indicted Kaylo insulation “Thus only The common evidence. association, and not direct of thermal component is a is that asbestos denominator carcinogenic that the possibility general. insulation eliminated may of asbestos be or contaminant property *35 or ignored should not be processing calcium silicate during from consideration.” dismissed widely prevail- on the of attack is based second line
OCF’s 1972 that of 1968 to period time during the relevant ing view until it health to a worker’s was not hazardous asbestos dust limit concentration, a “threshold called certain reached a limit The “threshold air. value,” in the work environment concentration average to describe the a term used value” was asbestos) (of kinds, cubic merely per not all dust particles of where in environment individual a work air to which an foot of could, least in the consideration created at dust was asbestos OCF day, “safely” exposed.25 the be experts of of the health company exposure, Scruggs’ at the time of Mr.. argues dangerous properties if that even asbestos’ officials believed manufacturing in Kaylo eliminated diminished or were not workers; theory carcinogenic trade to asbestos Kaylo which were officials, hypothesized in these who to OCF of course welcome destroy would pressurized heat of the autoclave documents that organic Kaylo. anything in five at that time to be was determined “value” for asbestos 25. The Confer- per foot of air the American particles of dust cubic million (ACGIH), Hygienists a loose network Governmental Industrial ence of case, any country; in from around the governmental health officials mandatory safety promulgated stan- government the federal after rather asbestos fibers average number of airborne based on an dards time, producing By OCF was value. than on the threshold limit historical Kaylo. complete discussion of the A more asbestos-free Godwin, supra, safety for asbestos is found in development of standards 365-67, 130-31. not Kaylo in would of asbestos small amount process, exceeding the thresh- dust particles concentration create for asbestos. limit value old noted the Selikoff studies commenting on same writer in 1964 that the memorandum in another tentatively
rather could “be Kaylo in used areas where workers content dust value,” limit the threshold normally be below expected working conditions efficient housekeeping and “good because sanding saws and collectors over the use dust dictate ” any in case.... machines early 1960’son it had done also cites to studies OCF insula- and other thermal dangers fabricating Kaylo who conducted the tions, hygienist the industrial which studies, Peele, Kaylo fabrication of found that “the Robert a hazard to saws does constitute with band insulation later, Mr. follow-up months Peele study In a several health.” separate intervals of investigators three performed and his the Construction analysis, dust evaluation sampling, to resolve “unan- Shop plant at a Union Insulation Carbide Peele did not include problems.” swered health Mr. because first sampling third of the three intervals ventilation, disclosed
investigation, any supplementary without limit threshold value and *36 exposure exceeding one the only “therefore, any might it could be assumed that ventilation controlling the adequate be could be more than added hazard.” case, belief, of concern in this during period the time
OCF’s
consistent with
entirely
level of asbestos dust was
a “safe”
that “asbestos-
among
hygienists
industrial
prevailing
the
view
asbestosis,
diseases,
be generally
could
principally
caused
could be
below a
kept
if dust in the work environment
avoided
” Godwin,
Md. at
“Well, face, hazard you this is a and a people hope hazard I we are to be able to going clear There is no up. reason none, under the this sun that can’t be it up, cleared because depends dust, upon how much in large part, are —there reactions, individual not everybody reacts to the dust same are way; idiosyncrasies, but, there individual basical- ly, it is much you due to how dust fellows if breathe in. And we safer, can’t trade crazy. make the we are If we can’t air, keep dust out of the we don’t deserve to call ourselves the proud United States of America.”
The in the plaintiffs/appellees instant case contend very same upon documents the record relied by OCF to show lack of knowledge clearly knowledge indicate OCF’s full of the available state of the art research concerning asbestos and asbestos products potentially their harmful effects. Dr. study published Selikoffs and OCF was it aware of years three Mr. Scruggs before work began Kaylo. with record also reflects that OCF officials were aware of and *37 intensely other interested research on the of carcinogenicity being asbestos at Fairleigh conducted Dickinson University world, Mr. Africa, before and around the New Jersey, addition, decades before In for at least two Scruggs’ employ. medical knew of the voluminous officials at OCF senior asbestosis, lung deadly and a severe concerning
evidence It of fibers. seems by inhalation asbestos disease caused personnel and medical key executive incontrovertible showing of numerous studies apprised had or been OCF read risk of mesotheli- had an elevated that asbestos trade workers oma, among other diseases. Cautionary Labels OCF’s Conflicting Interpretations An OCF’s Search Asbestos-Free Kaylo
on Kaylo conflicting inter- with reasonable but presented
We are also Mr. during preceding other OCF actions pretations of example, knowledge For OCF’s some Scruggs’ exposure. all
level could be inferred from its decision label of hazard and advis- Kaylo advising potential users hazards packages record, consisting of inter- ing handling precautions. The safe memoranda, packaging compa- invoices from nal orders nies, boxes, Kaylo that after reflects photographs were marked: December 1966boxes FIBER —If
“THIS CONTAINS ASBESTOS PRODUCT Handled, This Is Avoid Dust Is Created When Product Is The Dust—If Ventilation Control Breathing Adequate Possible, Approved By U.S. Bureau Respirator Not Wear Of Mines.” specific regarding
The 1970 to be more changed label was possibly breathing Kaylo caused dust: harm FI- ASBESTOS CONTAINS “CAUTION —PRODUCT Quantities Over BER—Inhalation Of Dust Excessive May Breathing Of Time Be Harmful. Avoid Long Periods Possible, Respi- If Is Not Wear Adequate Dust. Ventilation For Pneu- U.S. Bureau Of Mines Approved By rators Producing Dust.” moconiosis hand, Kaylo packages
On the labels recom- the other indication that be- handling practices, mended safe an OCF *38 546
lieved could be a Kaylo safely handled. Such belief would have been time consistent with the state of the art Godwin, knowledge, and in that discussed,-supra, asbestos was only dangerous when its threshold limit value was exceed- inadequate ed due to and poor handling practices ventilation. fact, Kaylo at the time in began packages OCF label its 1966, government December of the federal had neither adopted safety any standards nor promulgated labeling regu- products. lations for It was not years asbestos until six later, (OSHA) Occupational Safety that an and Act Health regulation required cautionary a label on products26; asbestos time, by that OCF from away producing was six months also Kaylo. argues asbestos-free OCF its actions in labeling years government required its cartons before the such labels demonstrated protecting its commitment to Kaylo, workers who used therefore as a negates and matter of law any charge bad faith in marketing Kaylo.27 in testimony
The exhibits case showed that OCF embarked on an project extensive research the mid-1960’s replacement Kaylo to discover a for asbestos which would serve the same and bonding purposes, project reinforcement a plaintiffs which claim have may indicated OCF’s awareness any at all an asbestos was soon be no longer acceptable health risk to workers. The a evidence of search for a replacement bonding agent appear could inconsistent with OCF’s that it or hoped” claim “believed Kaylo asbestos not dangerous. asbestos,
The for a replacement bonding agent search however, conceivably while inconsistent with a claim that in Kaylo dangerous, asbestos was not is also inconsistent with 365-66, (1972). Godwin, Fed.Reg. 26. 37 11321 See 340 Md. at in-depth history labeling regulation. for an A.2d at 131 emphatically agree warning 27. We premise any do not with OCF's negates label at all bad warning faith "as matter of law.” A label affirmatively misleading grossly could be or so inadequate inaccurate or gross negligence to cross the line from to "intent defraud.” The existed, question warning any is not whether a label of content but what label content of the was. to manufacture proceeding OCF was claim that plaintiffs’ concerns. disregard safety Kaylo in and market deliberate memoranda, record minutes, contained reports Kaylo asbestos-free the search for an effective which detail pre- hazard “potential” to the health repeatedly refer design to find motive” “urgency and the sented asbestos demonstrates, according clearly This replacement. evidence its consumers OCF, was concerned about company that the to the solutions money sought actively invested *39 Kaylo. health hazards of possible Faith Bad
3. Other Evidence of argument that strengthen to their Plaintiffs/appellees seek and introducing at trial documents faith OCF acted bad fiscal, marketing public and rela- testimony detailing OCF’s example, plaintiffs For Kaylo. tions concerns over asbestos Helser, control Jerry quality of testimony cite the trial costs the excessive Kaylo plant, concerning at the supervisor significantly which would spraying asbestos with sealant dust: reduce Mr. Helser, me a statement
“Q. you Mr. let show ... ask to Gould, you met with attorney you if this you with me. I’m to ask refreshes along going read that there were says Jerry recollection. It does recall your Kaylo. on to reduce surface dust He experiments run very Kaylo when they recalls that were successful However, Jerry’s it is also with sodium silicate. sprayed was not market- type Kaylo product recollection that this Do spraying product. of the involved ed because cost that, sir? you see Yes,
A. sir. recollection, that the sodium silicate was Q. your Is that spraying not used because of the cost involved product? it spray properly.
A. Cost because we couldn’t product? it onto the Q. spray properly You couldn’t right. A. That’s had trying spray We a terrible time that type of material.” this
Apparently and other such evidence was supposed misplaced demonstrate priorities OCF’s and bad faith at a time had dangerous when it actual knowledge properties Kaylo.
Similar claims were against made Godwin more defendant; than one implied we state here as we then that evidence a company negative cost and considering publicity implications problem product does alone in marketing constitute evidence of bad faith product. Normally, corporate hardly such activities would be evidence of “evil motive” or “intent required to defraud” as to show fact, “actual malice.” In one expect marketing would the OCF department to have concerns practical public about relations Kaylo, its concerning accountants and control quality run supervisors analyses cost-benefit potential solutions. Yet, plaintiffs/appellees argue company’s here focus normal, on costs public relations was not rather but demonstrated the company’s attempts affirmative to deceive public consumers and the was evidence “a *40 mentality.” bunker only
The rational toway interpret plaintiffs/appellees’ argu- is recognize premise: ment to its fundamental that OCF acted in bad faith Kaylo because it did remove from the market instantly in completely and the noth- Absolutely mid-1960’s. in ing the record or in state the the of art medical or industrial the knowledge supports of time an in premise. such No one 1968, not even the experts medical who researching were and cancer, believed, discovering the links between asbestos and or belief, any at least voiced that asbestos immedi- needed be ately eliminated in entirely. hindsight Kaylo While off taking the market in the mid-1960’s have may prudent, been no way Kaylo does OCF’s failure to take the immediately off market at that time connote bad faith sufficient to support punitive damages verdict. that very that the fact point also out plaintiffs/appellees case Mr. only in the of damages jury punitive awarded or Mr. Garrett’s case not in either Mr. Hohman’s
Scruggs applied jury evidence that the understood telling is damages. proof required punitive of bad faith stringent have determined OCF’s They argue jury that the must 1970’s, early Kaylo in the 1960’s and to market late decision well-known, more of dangers after the asbestos were long marketing than of worthy punishment OCF’s egregious 1950’s, and Mr. when both Mr. Garrett product exposed. argument clever and has Hohman were While merit, jury us is not whether the before question some hand, the evidence was the task at but whether understood find, a clear and sufficient for a reasonable legally standard, with actual malice convincing that OCF acted marketing Kaylo. Bad Knowledge Actual Evidence Conclusion: Con- to Meet Clear and Legally
Faith Not Sufficient vincing Evidentiary Standard discussing the evidence
As noted in Godwin when we proof Pittsburgh Corning Corporation, defendant against Godwin, A.2d ways.” 340 Md. before us “cuts both art awareness of state at 137. Evidence OCF’s knowledge about asbestos includes evidence OCF’s medical knowledge with the of the art general agreement state exposure be safe. Evi- controlled and limited asbestos could enough was concerned about asbestos hazards dence that OCF OCF Kaylo packages also demonstrates to label its eliminate handling safe of asbestos would health believed hazards, aware of the and that OCF intended make workers Evidence that improperly risks of when handled.28 plaintiffs produced testimony at trial and oral 28. We note that argument Scruggs Mr. and Mr. Garrett never saw such us that *41 warnings warnings, existed at and further that the evidence that such evidence, weigh underwhelming. While not our task to we all was it is that, contrary, point from of the record to the OCF do out our review labeling. persuasive produced voluminous and evidence Photo- to actively working preserve OCF its market share of thermal by designing Kaylo pro- insulation an asbestos-free vides evidence that OCF was worried the health hazards about presented asbestos and affirmatively sought protect its users.
Clear and
bad
convincing
support
evidence of
faith
a punitive damages
“goes
required
award
far
that
beyond
support
compensatory damages
based on
underly
award
the
ing strict
claim ...
in a
liability
products liability action
[and]
on negligence requires
plaintiff
based
the
much
prove
more
Zenobia,
than negligence.”
Plaintiffs ... good PCC did not in [OCF] believe that its faith ventilation, recommendations exhaust ... housekeep- for graphs clearly top facing show that the label was on box (2 opening Although in.), individual the box. small in. 3 and it 1/2 printed capital was bordered and in red and used letters. Invoices boxing companies packaging Kaylo from the demonstrated all labels; photographs contained the other of workers showed discarded Kaylo right marked boxes next to the A workers. co-worker of Mr. Scruggs he testified that knew had asbestos it because of the box, yet word "asbestos” photographs from our review of the packaging only appeared invoices word "asbestos” on the box cautionary within the label.
551 protections reasonable respirators use were ing, and for of users.” added). 378-79,
Godwin,
(emphasis
G. Issues concerning punitive other arguments OCF makes three First, Scruggs. case of Mr. damages against award it punitive the trial instructions judge’s OCF claims that they not consistent with damages improper were because were judge violated OCF’s argues Zenobia. OCF also trial a post-verdict when it failed to conduct process rights due punitive damages. Finally, OCF liability review of OCF’s punishment goals that the evidence that the twin contends damages award punitive were furthered and deterrence legally insufficient. We shall consider against OCF was necessary resolution is not any arguments, these their today. our decision AP- FOR DAMAGES AGAINST
JUDGMENT PUNITIVE FIBERGLAS CORPORA- PELLANT OWENS-CORNING REVERSED; AF- ALL TION OTHER JUDGMENTS (1/5) DIVIDED, BE ONE-FIFTH FIRMED. TO COSTS TO BE PAID BY LENORA SCRUGGS INDIVIDUALLY REPRESENTATIVE OF HARVEY AND AS PERSONAL SCRUGGS; DECEASED, (415) AND FOUR-FIFTHS TO BE PAID BY APPELLANTS. BELL, J.,
Concurring opinion in which dissenting RACKER, JJ., CHASANOW Join.
BELL, Judge, concurring dissenting. quarrel
I no any have with the substantive conclusions of *43 majority III.F., the the one in Part opinion except reached to pertaining punitive damages against the Owens- award (“OCF”).4 Fiberglas Corning Corporation respect to With F., I Part III. am of the firmly ample view that there was evidence to to presented jury justify the its verdict awarding punitive damages OCF in against appellee favor of Accordingly, I from of Scruggs. part opinion dissent that the judgment. case, liability an products punitive damages award of may only be if evidence by plaintiff sustained the adduced the motive,’ “the of equivalent establishes the ‘evil ‘intent to defraud,’ injure,’ or ‘intent to which generally characterizes malice,’ ‘actual knowledge [i.e.] actual of the defect and delib- Owens-Illinois, disregard erate of the consequences.” Inc. v. Zenobia, (1992).1 420, 462, 633, 325 Md. 601 A.2d 653 actual of knowledge component the test is satisfied where is, defendant, part there on the of the a “willful failure to know,” is, that where the defendant “believes that it is proba- fact, something
ble that is a but deliberately shuts his or her eyes or making inquiry avoids reasonable awith conscious McCallum, avoid purpose learning the truth.” State v. 321 (1991) 451, 458, 250, (Chasanow, Md. 583 A.2d J. concur- Thus, in ring). order plaintiff for the on the prevail issue of punitive damages, must plaintiff establish that the defen- dant, having nevertheless, the requisite knowledge, acted in I from this punitive damages, dissented formulation of the test for and, therefore, believing system that was not broke was not in need Owens-Illinois, Zenobia, 420, 478-86, fixing. See v. Inc. 325 Md. 633, (Bell, (1992) 601 A.2d 661-65 concurring dissenting). J. Godwin, 340 v. ACandS distributing its product. faith bad (1995). 358-9, 116, 128 667 A.2d Md. knowledge requisite had the defendant
Whether by of fact to be determined questions faith are acted bad are not fact, case, jury. matters in this Such the trier thus, and, most for the trial court of law reserved matters by appellate matters to be resolved an are not assuredly, Moreover, by direct not be established those facts need court. is within peculiarly state mind party’s
evidence. Because a disclose, not, he or she or power party knowledge chooses, prove party’s cannot party the other Certainly, the except evidence. by or bad faith circumstantial not, cannot, scrutiny and should actions are under party whose be direct evi- proof permitted, requiring be dence, The issue inquiry. determine the outcome appellee the evidence the our determination then whether knowledge of mind and adduced as to OCF’s state Scruggs damages. jury’s punitive sufficient to sustain the award issue, evidence following it the As to that had before 343 Md. See majority opinion. to that set out addition (1996). 500, 541-549, 682 A.2d 1163-1167 *44 time, to whom an insulator for a as Scruggs, The appellee greatest, by-stander from and a exposure was hazard thereafter, By in that exposed first to asbestos 1968. was time, associated with dangers was aware of OCF well known, for than two by It that time more asbestos. had breathed decades, asbestos should be containing that dust it were, a was represented danger if it it real because and that carcinogen. its knowledge, through parent companies, had OCF one year, as In that early dangerous asbestos was Owens-Illinois, informed, by letter parent companies, its “is Laboratory that asbestos from a Doctor from the Saranac also produce lungs [and] cause[s] known to fibrosis of injected quantities.” when in sufficient fibrosis in other tissues Works, before, Corning other Glass year parent, That OCF same to same effect. quoted the Doctor’s work had knowledge direct of the hazardous nature of asbestos was 1941, evident in lawyers when one of the in its Legal and Patent Department, having received a letter from a Saranac. Doctor, expressed belief, his gratification at the Doctor’s referring time, main product OCF’s at the fiberglas, going “we are not to encounter any evidence of an asbestos- like reaction because none of the fiber reaches lungs.” Moreover, that, OCF has admitted year, that same it was aware of a case of asbestosis or cancer in a user of an insulation which product contained asbestos.
Thereafter, developed OCF a “germ major of a strategy.” put together It was to an asbestos file to be held as a “weapon in reserve.” The file would be “an impressive file of photo- asbestos,” stats medical literature on comprise some 500- pages, “two including bibliographies medical covering 1938, literature to citing references to scores of publications which the and skin lung hazards of asbestos are discussed.” The file was to be used should the unions balk at with working or fiberglas they require should to pay premium OCF doing file, so. It compiled although it never had to resort Thus, that, its use. it is clear more than 10 years began before it a product asbestos, market containing OCF had a knowledge wealth of concerning the hazards of asbestos and that the it had knowledge was actual and not constructive.
Despite having knowledge this and being concerned with avoiding having its fiberglas product with the “smear[ed] asbestos,” hazards of began mixing OCF fiberglas and asbes- tos, which it sold as Kaylo, 1953. When OCF was remind- ed, by a Doctor from an opinion whom was solicited concerning favorable past experiments with fiberglas, fairly “asbestos is incriminated as a carcinogen the asbes- damage tos causes fibers,” virtue of the length of its concern it expressed was about the “general tenor” of the letter containing the reminder and the fact that is certain- “[i]t *45 ly nothing that we could show customers or a A union.” similar concern expressed was in response to Dr. Selikoffis 1964 study insulation workers. In a confidential memoran- dum, OCF’s Director of Relations, Industrial & Personnel
555 way of preventing is to find some present “our concern wrote: affecting sales.” creating problems from Dr. Selikoff Indeed, which OCF monitored appears purpose it that the for how keep tabs on experiments studies was the medical the effect perceived product gauge its public the product. on the the profitability and studies experiments the dangerous to was that asbestos was more OCF aware and, it directly that handled worker because worker insulation therefore, than a greater by-stander. was to a extent exposed the generated during the And it knew that it was dust September The process posed danger. insulation Product Devel- by memorandum William Lotz of OCF’s 1963 (as is illustrative. He wrote: “Asbestos Laboratory opment lungs into the causes asbesto- Kaylo) found when breathed All are lung often insulations sis which leads cancer.... is complain except when the dust
dusty and insulators seldom them.” irritating to particularly dust
There was a view between and 1972 asbestos hazardous above certain level concentration. only average particles indicator of concentration of dust The exposed safely foot of which a could be cubic air to worker per a threshold limit value. The evidence was characterized accept OCF gospel before was that did not memorandum, of that In a 1966 Director accuracy value.
of Industrial Personnel Relations wrote: is as a hazard asbesto- recognized causing Asbestos health years more of requires exposure sis. Asbestosis or limit objective cause threshold value set symptoms. particles A.C.G.I.H. 5 million cubic foot. Howev- per is
er, body fiber in only Dr. Selikoff has stated one cause ... can cancer mesotheliomas, into develop
Asbestos bodies sometimes carcinogenic potential. tumor with considerable (if reason), other asbestos Because asbestosis no by adequate from atmosphere fibers should be removed impossible, respirators If suitable ventilation. ventilation *46 At I there by point, should be worn workmen. this believe to the A.C.G.I.H. threshold limit.... question is reason created guess It is the amount dust impossible cutting, sawing, Kaylo---- etc. of prove to and tends to OCF’s
This same evidence is relevant Kaylo. Having assembled extensive marketing bad faith dangers purpose of asbestos for the concerning evidence and, thus, a acquiring, maintaining, competitive edge defects, marketed being acutely aware of its OCF nevertheless asbestos, containing touting a it as safe. This market- product even in the face of evidence that even small ing continued i.e., dangerous, Dr. conclu- amounts of asbestos were Selikoffs cancer, body one fiber in the could cause OCF’s only sion of the threshold limit value rela- questioning accuracy dust, “impos- its despite knowledge tive asbestos by the sibility guess[ing] the amount of dust created of] that it now cutting, sawing, Kaylo.” Notwithstanding etc. of asbestos, product contained after OCF marketed its characteristics” and “non- having “pleasant handling being toxic.” OCF, jury before the also disclosed that evidence a non-asbestos material for use
having developed containing it that the Kaylo, upon determining profit declined to use produced Similarly, it was insufficient. margin Kay- decision not to treat profit-motivated informed OCF’s lo the amount of dust its spray handling with a that reduced Furthermore, generated. appellee Scruggs presented evi- concerning replacing dence OCF’s attitude toward the asbes- content of That attitude is in an Kaylo. exemplified tos internal memorandum: pointed Kaylo Ladd out we have a ten million dollar
D.W. operation. position He wants “us” as a team to be tell what fibers we can use to reinforce management day industry if and when the arrives when the whole products. “forced” to remove asbestos from their He “D” day looking doesn’t want OCF to wait until to start substitute fibers. program “low conducting gear”
I we are told Dale are Most of our efforts substitutes for asbestos. finding directed toward stress corrosion. being if “D” Mr. Ladd that and when
It was also out pointed arrives, won’t be alone. for the removal of asbestos we day be in the same boat with us. The industry The whole would forced, point, accept be at that industry may [sic] *47 the removal of they pay as a must product price softer asbestos. conclusion, that, contrary majority’s to the
It is clear to me evidence, majority that detailed in the foregoing the to entitlement supportive appellee Scruggs’s of opinion did, have, the could as it convinced compensatory damages, appellee evidence that the jury by convincing clear and such, it damages. to As was Scruggs punitive was entitled that the to return the verdict enough permit jury than more sure, evidence, the jury there was which had it did. To be verdict; it, how- supported would have a defendant’s believed evidence, ever, majority recognized as the when evaluat- that of aspect to the ing sufficiency regard compensatory its with of case, require judgment not as to favor the was such OCF as a matter of law. “ in this case ‘cuts both conceding After that the evidence ” (1996) 500, 549, 1143, 1167 (quoting 343 Md. 682 A.2d
ways,’ Godwin, 378, 137), majority Md. at 667 A.2d at the supra, 340 observes: art medical
Evidence of OCF’s awareness of state of the gen- includes evidence of OCF’s knowledge about asbestos that knowledge with the state of the art agreement eral could be safe. exposure controlled and limited asbestos enough Evidence that OCF was concerned about asbestos its demonstrates that Kaylo packages hazards to label also eliminate handling OCF believed safe of asbestos would hazards, that OCF intended to make workers health when handled. Kaylo improperly aware of the risks its actively working preserve Evidence that OCF was by designing of thermal insulation an asbes- market share was worried evidence that OCF provides tos-free and affirma- presented the health hazards asbestos about sought its users. tively protect clear the standard of noting proof Then that
Id. evidence, prove “requires plaintiff which convincing Zenobia, Md. at than negligence,” supra, much more offers its of the state majority view 601 A.2d in this evidence case: widespread relevant belief was
“At all times depended, large part, risk extent health a jury It be that intensity exposure---- may length corporate adopt decision to health would believe that and, then, came even that it was motivat- warnings too late may It liability. to minimize tort also only ed desire not only [OCF] be that would believe PCC grossly but it was respects, negli- these negligent conclusions, however, or do possible These gent. inferences demonstrate that PCC made a bad decision [OCF] faith or deliberate [Kaylo] to market Uniberstos conscious to the the consumer. disregard safety the threat *48 convincing have clear not shown evidence Plaintiffs in good that ... PCC did not believe that its [OCF] faith ventilation, ... exhaust housekeep- recommendations for were protections use reasonable ing,and respirators of for ” users. Godwin, 682 1167 340 Md. 378- (quoting Id. at A.2d at 137). 79, 667 A.2d at the majority only permissi- focuses evidence and the It totally from that evidence favorable to OCF.
ble inferences it is acknowledges to consider which favor- fails the evidence or the that appellee Scruggs able to inferences evidence Thus, majority acknowledge the does not that it produces. an jury for to draw inference unfavorable to possible was the indicating from the that it had it that OCF evidence before containing the of a began product OCF distribution asbestos the dangers after it had tremendous evidence of amassed that, of prior with to the the exposure associated asbestos asbestos, reason both question to OCF had to appellee
559 value, and whether limit accuracy applicable threshold was cutting sawing product its or generated the dust Certainly, jury dangers. expose users to those sufficient to in faith in acted bad find that OCF with that evidence could it study; could further to distribute without continuing OCF, remaining willfully blind that have concluded asbestos, distrib- use of consequences of continued suspected Nor consequences. disregard those uted it in conscious majority that does. the conclusions draw bound event, majority simply fails any it clear is insufficient. conclusion that evidence explain its in record this Moreover, mischaracterizes the majority Godwin, far from a this case is the situation case. Unlike view, the Instead, in evi- my case. negligence or “labeling” knowledge it level of the case is is the dence this such That is so because what dispositive. OCF that is possessed by maximizing with did, profits it the name OCF did little, very any, regard anything if else.
I dissent. RAKER have authorized me Judges CHASANOW and herein. they join expressed the views say A.2d OF MARYLAND ATTORNEY COMMISSION GRIEVANCE v. M. SPIRIDON.
John Term, September
No. Maryland. Appeals
Court
Sept. ORDER Petition for Indefinite having considered the Court Attorney filed Grievance Com- Suspension by Consent