ACandS, Inc. v. Godwin

RODOWSKY, Judge. In this opinion we address the appeals and cross appeals in the consolidated actions known to the Maryland asbestos litigation industry as Abate I. With one exception we shall affirm the judgments for compensatory damages and, for insufficient evidence, reverse the judgments for punitive damages. Abate I is the first trial after the consolidation in the Circuit Court for Baltimore City of 8,555 actions involving claims for personal injuries or wrongful death allegedly resulting from exposure to asbestos. In that trial, held from February 18 to August 10, 1992 before Judge Marshall A. Levin, certain ³⁴² common issues relating to liability were decided, as well as all issues between six illustrative plaintiffs and certain nonsettling, trial defendants.

The issues that we address in this opinion are tabulated, infra. In September 1987, when there were approximately 1,000 asbestos case filings in the Circuit Court for Baltimore City, Judge Levin was administratively designated as the “judge in charge” of asbestos litigation in that court. By April 1990 the number of such cases in Baltimore City had increased to more than 4,900. It was anticipated that asbestos cases would continue to be filed at the rate of up to fifty cases per week.

Judge Levin had been applying alternative dispute resolution techniques, but with only limited success. The case management plan in April 1990 called for trying on all issues batches of ten plaintiffs’ actions per consolidated trial. This represented an increase from five plaintiffs’ actions per consolidated trial caused by a reduction to two judges from the four judges previously available to try asbestos cases. If these cases were heard eleven months of the year, and if a new consolidation were set for trial in each of those eleven months before each of the two available judges, a maximum of 220 Baltimore City asbestos cases could be disposed of by trial or, with the incentive of a fixed trial date, by settlement.

But the queue of undisposed of cases would lengthen into the Twenty-first Century, because annual new filings were approximately ten times greater than the number of cases that could be tried in the same period. Against that background Judge Levin determined to consolidate the common issues of all of the Baltimore City asbestos cases into one trial. The initial mass consolidation order of April 1990 applied to all asbestos personal injury and wrongful death cases in the Circuit Court for Baltimore City filed as of April 1, 1990 in ³⁴³ which process was served by June 1, 1990. 1 The principal common issues to be decided in the consolidated phases of the trial were “state of the art” and punitive damages. Also pending as of April 1990 were more than 3,000 asbestos cases, in total, in the circuit courts for Baltimore, Prince George’s, Allegany, and Washington Counties.

These cases were transferred to the Circuit Court for Baltimore City pursuant to Maryland Rule 2-327(d) for pretrial and for trial of common issues as part of the same consolidation. 2 Judge Levin, in molding the consolidation, determined that the claims of six plaintiffs should proceed to complete disposition on all issues. Three plaintiffs were selected by agreement of counsel for the consolidated plaintiffs, and three plaintiffs were selected by agreement of counsel for the consolidation trial defendants. The purpose of trying these six illustrative claims in full was to give the jury a better understanding of the issues involved in an asbestos case. Over one hundred different defendants had been sued, cumulatively, in the 8,555 actions that were consolidated.

Prior to trial, however, the plaintiffs voluntarily dismissed their claims against all but fifteen of the defendants originally named. The trial court then severed from the consolidated trial the cross-claims brought by the fifteen remaining defendants against the defendants whom the plaintiffs had dismissed. Those cross-claims would be tried at a later time in a consolidated cross-claim trial (Abate II). Cross-claims between the fifteen remaining defendants would be tried in Abate I as mini-trial issues applicable only to a particular illustrative plaintiff.

If, however, any of the fifteen consolidated trial defendants should settle with the consolidated plain ³⁴⁴ tiffs, the cross-claim liability of that defendant then would be resolved, ordinarily, in Abate II. The exception to the latter procedure was that an Abate I defendant that settled with the consolidated plaintiffs could elect, at its sole option, to have certain issues relating to its cross-claim liability tried in Abate I as a common issue binding all cross-claimants in the consolidation. Prior to jury selection one of the fifteen defendants settled. During jury selection two more defendants settled.

During the trial six other defendants settled. Thus the jury ultimately considered the issues between the illustrative plaintiffs and only six defendants. In addition two of the settling defendants elected to have their cross-claim liability decided as a common issue in Abate I. Judge Levin divided the issues to be decided into four phases, and the court took jury verdicts on special interrogatories for each phase. Phase I decided, as to specific products of each remaining defendant and of the two cross-claim defendants, whether that defendant was negligent and/or strictly liable and, if so, the year in which that liability arose and the year in which it may have ended.

Phase I was submitted to the jury on July 10, 1992, and the verdict was rendered on July 13. Each of the six defendants and one of the cross-claim defendants were found negligent and strictly liable as to all products submitted. These issues were common to the consolidation, and the findings applied to the cases of the other 8,549 plaintiffs. Phase II resolved individual issues as to the six illustrative plaintiffs.

These issues included: (1) whether the plaintiff was a foreseeable user and/or bystander; (2) whether the plaintiff had contracted an asbestos-related disease and, in the wrongful death cases, whether that disease had caused the death; (3) the years, if any, during which the plaintiff was exposed to the products of specific defendants named in the special ³⁴⁵ verdict form; 3 and (4) for those defendants for which years of exposure were found under issue three, whether that exposure was a substantially contributing factor in causing the asbestos related disease and/or death. The remaining issues in phase II dealt with cross-claims and the amount of compensatory damages. 4 The phase II issues were submitted to the jury on July 21, and the jury returned its verdict on July 23. The three plaintiffs selected by plaintiffs’ counsel obtained verdicts. Each of the three illustrative plaintiffs selected by defendants’ counsel was found not to have developed an asbestos-related disease, so that judgments in favor of the six trial defendants were entered as to those plaintiff's.

The successful plaintiffs were Leggette McNiel (McNiel) and the survivors of Ira Russell (Russell) and of Lawrence Leaf (Leaf). McNiel was diagnosed with asbestosis in 1985, and he requires supplemental oxygen from a portable tank. Russell died of asbestosis in January 1992. Leafs exposure to asbestos resulted in mesothelioma, from which he died in September 1986.

Of the defendants against whom a verdict for compensatory damages was returned, those who are appellants in the instant matter are ACandS, Inc. (ACandS), Pittsburgh Corning Corporation (PCC) and Porter Hayden Company (PH). Phases III and IV addressed punitive damages. The punitive damages issues were common issues under the consolidation order. The court granted a motion for judgment as to punitive damages in favor of ACandS and in favor of one other defendant.

That latter defendant settled after the appeal was noted in this case. In the Phase III verdict, rendered on July 30, the jury found each of the four remaining defendants liable for punitive damages. One of these four defendants subse ³⁴⁶ quently settled. Another, who filed a voluntary petition for relief under the Bankruptcy Code after the trial, was dismissed from the case.

The two defendants found liable for punitive damages who are appellants are PCC and PH. The jury found each liable for punitive damages to users of, and bystanders to users of, their products from 1965 to the date of the verdict, July 30, 1992. Phase IV undertook to quantify punitive damages. The jury finding would be binding in other cases in which verdicts for compensatory damages for exposures after 1965 might be entered against PCC or PH.

In order to be able to apply the determination of the jury in the consolidated trial to the claims of any other successful consolidation plaintiffs, the trial court instructed the jury to determine the “amount of punitive damages for each $1 of each defendant’s share of compensatory (actual) damages.” On August 10,1992 the jury returned a multiplier of 1.5 as to PCC and of .35 as to PH. 5 The defendants filed post trial motions which, after briefing and argument, were denied for the reasons stated in a 225 page opinion by Judge Levin of June 1993. When Judge Levin undertook to direct the entry of final judgment in favor of the plaintiffs, one of the then defendants sought a writ of mandamus or prohibition in this Court. Keene Corp. v. Levin, 330 Md. 287 , 623 A.2d 662 (1993). Following the filing of the opinion in Keene, where we denied issuance of the writ, the parties to this appeal entered into an agreement by which, inter alia, the defendants-appellants, PCC, PH, and ACandS, renounced their rights to any further reduction of their liability to Leaf, Russell, and McNiel that otherwise might result from adjudication of cross-claims asserted by them that would ³⁴⁷ be tried in Abate II.

Thereupon, by order of November 12, 1993 Judge Levin directed the entry of final judgment in specific dollar amounts that reflect the credits resulting from the releases of trial defendants who had settled up to that date. Appeals were noted by defendants and plaintiffs. We then issued the writ of certiorari prior to consideration of the matter by the Court of Special Appeals. When one of the judgment debtor defendants settled during the pendency of this appeal, PCC, PH, and the McNiel and Russell plaintiffs stipulated in May 1994 to a reduction in compensatory damages.

As modified by the May 1994 stipulation the judgments that were directed to be entered by the order of November 1993 are as follows: As to McNiel, judgment jointly and severally against PCC and PH for $1,193,082.30 in compensatory damages, $624,-882.30 against PCC in punitive damages, and $145,805.87 against PH in punitive damages. As to Russell, judgment jointly and severally against PCC and PH for $1,490,872.40 in compensatory damages, $1,118,-154.30 against PCC in punitive damages, and $260,902.67 against PH in punitive damages. As to Leaf, judgment jointly and severally against ACandS, PCC, and PH for $2,520,000 in compensatory damages on survival, consortium, and wrongful death claims, $1,110,000 against PCC in punitive damages, and $259,000 against PH in punitive damages. Although many issues have been raised by the parties in their briefs, it is necessary that we decide only the following; I. Sufficiency of the Evidence of Liability for Compensatory Damages.

A. Liability of PCC to McNiel; B. Liability of PCC to Russell; C. Liability of PCC to Leaf; D. Liability of PH to McNiel.

II

Liability for Punitive Damages of: A. PCC, ³⁴⁸ B. PH, and C. ACandS.

III

Legality of the Consolidation.

IV

Reformation of the Verdict against ACandS. V. Mistrial Motions and Objections Concerning: A. Interim Arguments—Use and Alleged Abuses; B. References to Settlements; C. Attacks on Defendants and Defense Witnesses; D. • Attacks on Credibility of Opposing Counsel; E. References to Matters Not in Evidence.

VI

Admission in Evidence of Unadjudicated Suits against PCC by Former Employees.

VII

Constitutionality of the Pressure to Settle.

VIII

The Appeal by Owens-Illinois, Inc. IX. Allocation of Costs. I PCC and PH challenge the legal sufficiency of the evidence to support a jury finding that their respective asbestos products were a substantial cause of injury. PCC challenges the sufficiency as to all three plaintiffs while PH challenges only as to McNiel.

PCC was a manufacturer of asbestos block and pipe covering, which it sold under the trade name Unibestos. It was stipulated that PCC manufactured Unibestos only in the period between July 1962 and February 1972, and that sales continued thereafter, although the length of the period was disputed. PH was both a supplier and installer of asbestos products, principally those manufactured by Johns-Manville (JM). Plaintiffs undertook to demonstrate their exposures to products identified to these defendants only by proof directed to exposure at the steelmaking facilities of Bethlehem Steel Corporation (Bethlehem) at Sparrows Point (the Point).

Steelmaking requires great heat, and Bethlehem, in order to conserve heat, liberally used asbestos products in new con ³⁴⁹ struction, rebuilding, and repair throughout the Point. Prior to the rise of foreign competition, the Point, in terms of production and number of employees, was one of the largest steelmaking facilities in the world. The instant appeals are concerned principally with open hearth furnaces, soaking pits, and blast furnaces. These facilities are located in an area comprising approximately two square miles out of the total area of the Point.

McNiel, Russell, and Leaf were bystanders, in the sense that they did not work directly with asbestos products. In Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179 , 604 A.2d 445 (1992), we adopted the following test to determine the legal sufficiency of the evidence of substantial-factor causation in asbestos cases. “Whether the exposure of any given bystander to any particular supplier’s product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystánder plaintiff.

Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product. ‘In addition, trial courts must consider the evidence presented as to medical causation of the plaintiffs particular disease.’ ” Id. at 210-11 , 604 A.2d at 460 (citations and attributions omitted). This so-called “frequency, regularity, and proximity” test is the majority rule. Jackson v. Anchor Packing Co., 994 F.2d 1295,1301 (8th Cir.1993); see also Tragarz v. Keene Corp., 980 F.2d 411, 420-21 (7th Cir.1992); Slaughter v. Southern Talc Co., 949 F.2d 167,171 (5th Cir.1991); Lohrmann v. Pittsburgh ³⁵⁰ Corning Corp., 782 F.2d 1156 , 1162-68 (4th Cir.1986); Zenson v. Owens Corning Fiberglas Corp., 836 F.Supp. 302, 304 (E.D.Pa.1993). In Parts I.A, I.B, and I.C we apply this test to each plaintiff in relation to PCC and in Part I.D we consider PH’s argument.

The plaintiffs’ product identification evidence directed at PCC rests on the testimony of two witnesses, one of whom was Thomas Webb (Webb). Webb worked in the employ of Bethlehem at the Point as a pipe coverer from 1956 to 1968. Webb identified Unibestos as one of the brands of pipe covering, sometimes called “half-rounds,” with which the Bethlehem pipe coverers worked. Webb was one of a crew of twenty persons employed by Bethlehem in its pipe covering department at the Point.

He worked wherever there were steam lines. These areas included the open hearth furnaces, the soaking pits, and the blast furnaces. Webb and his fellow, Bethlehem-employee, pipe coverers worked on new construction, maintenance, and furnace tear-downs. A furnace tear-down, or outage, involves the complete removal of all of the existing insulation from a furnace and from its interior and exterior piping, replacement of the piping, and replacement of all the insulation.

While Bethlehem-employee pipe coverers were working with insulation, members of other crafts would be working in the vicinity. These could include Bethlehem production employees and the employees of outside contractors. Webb testified, in essence, that wherever he worked throughout the Point, Unibestos pipe covering was used interchangeably with that of JM, Armstrong, Calcilite, Caltemp, and Kaylo. The other product identification witness was John Lagaz (Lagaz) who was employed by Bethlehem at the Point in 1953 and, after two years of military service, from 1956 to 1965 as a pipe coverer.

Thereafter he worked for Bethlehem as a steam leak welder until his retirement in 1991. Between 1966 and the mid-1970s seventy percent of his time was spent with the blast furnaces. Lagaz identified Unibestos block and pipe covering as asbestos products with which he worked on each ³⁵¹ of the ten blast furnaces at the Point. He testified that Unibestos, Kaylo, JM, and Armstrong were used interchangeably in blast furnace outages until the mid-1970s when Bethlehem started using “quite a bit more” fiberglass.

A. McNiel McNiel was a career Bethlehem employee who was hired in 1956 and retired in 1988. From 1960 to his retirement McNiel was an ingot checker at the No. 4 Open Hearth Shop. The jury could find that McNiel’s exposure to asbestos, including Unibestos, resulted from tear-downs of the open hearth furnaces in the No. 4 Open Hearth Shop and from tear-downs at the No. 5 Soaking Pit, another type of furnace to the north of No. 4 Open Hearth. Number 4 Open Hearth is a huge metal shed, approximately eight stories in height with the sides open at the ground story, that is more than 500 yards in length.

It contains seven open hearth furnaces. Immediately adjacent to, but not abutting, No. 4 Open Hearth on the east is another large metal shed building approximately one-half as tall as No. 4 Open Hearth and about one-half as long. This is the No. 4 Open Hearth Stripper Building. Its north and south ends are open and it is open for approximately two-thirds of its height.

The southern end of this stripper building is approximately on line with the southern end of No. 4 Open Hearth. North of this stripper building, and parallel with the east side of the balance of No. 4 Open Hearth, is an open area, the No. 4 Mold Yard. As an ingot checker, McNiel worked principally in the mold yard. Where McNiel principally worked placed him within seventy-five to one hundred yards of one of the furnaces in No. 4 Open Hearth.

The product of one production cycle of an open hearth furnace is called a “heat.” That product, molten steel and slag, is tapped into a ladle capable of holding 880,000 pounds. The molten steel is poured from the ladle into very large molds that are standing in open, shallow-bed, railroad cars. These beds are filled with a sand-like material, not identified in the record, that is capable of forming a base for the pour of ³⁵² molten metal into the mold. One heat might fill thirty to fifty molds.

A train of molds, comprising a heat, was then moved to the stripper building, where the molds would be removed by a pinchers and ram, operated from a crane. McNiel’s principal duty was to time the removal of the molds appropriately so that the molded steel, called an ingot, would neither ooze from ingot shape nor cling to the mold. Ingots, stripped of the molds, would then be moved on the same railroad cars to a soaking pit, for further processing, hereinafter described. Ingot checking ordinarily required McNiel to enter No. 4 Open Hearth five or six times a shift.

This estimate assumed that two furnaces were in tear-down or repair and that five of the seven open hearth furnaces were in production. McNiel went into the furnace budding in order to get information sheets which told him when a particular heat had been tapped. He obtained these information sheets at the pit office in No. 4 Open Hearth, by walking past four of the furnaces. Out of the seven blast furnaces in the building, there was always at least one furnace that was not operating because of a tear-down.

Several different departments of Bethlehem employees at the Point would be involved in the tear-down and repairing of the furnaces, including the workers who “had to reline pipes and cover pipes.” Pipes were all over the place in the No. 4 Open Hearth. These workers used semi-rounds. McNiel walked close to these pipe coverers and breathed the dust. Approximately 600 feet from the northern end of No. 4 Open Hearth was one side of No. 5 Soaking Pit which extended northeasterly for approximately 800 feet.

A soaking pit is a series of side by side furnaces, set below ground level. Its purpose is to reheat the ingots to 2,500 degrees so that they can be processed in a nearby mill. Each furnace chamber of No. 5 Soaking Pit was approximately 20 feet by 12 feet by 12 feet, with a steel lined wall that was insulated with asbestos block which in turn was covered by brick. The chambers in a soaking pit were continually rebuilt and relined, since the life of a chamber was approximately twelve to fifteen months. ³⁵³ Bethlehem-employee pipe coverers worked in the soaking pits, as well as Bethlehem-employee brick layers who were removing and applying asbestos block.

From time to time, when problems arose, McNiel was also required to go to No. 5 Soaking Pit. This would occur, for example, if an ingot had fallen off of a railroad car in the stripping process. The foregoing evidence sufficiently supports a finding that exposure to Unibestos was a substantial cause of McNiel’s asbestosis. Bethlehem employees continually removed and reapplied insulation to the furnaces in No. 4 Open Hearth.

For more than twenty years McNiel worked outside the partially open-sided No. 4 Open Hearth building and was required to enter it five to six times a day. He was also required from time to time for more than two decades to go to No. 5 Soaking Pit. Based on the evidence that Bethlehem employees regularly used Unibestos half-rounds and block, McNiel has satisfied the Balbos test as to PCC. B. Russell Russell’s testimony was presented via his deposition taken in July 1989.

Russell was not a Bethlehem employee. He had begun his work career in the 1940s as a welder, and he became a pipefitter in the 1950s. From the 1950s until his retirement in the early 1980s he worked for a number of different contractors who at various times performed work at the Point. Clearly Russell was exposed to asbestos.

When new pipe was installed it was industry practice for pipe coverers to follow behind the pipefitters. The pipe coverers would cut and fit the half-rounds and mix “mud,” ie., cement containing asbestos. There was also evidence that, in performing some repair and rebuild jobs, pipefitters would remove the asbestos covering from the old pipes that were to be replaced. The question here is whether, and to what extent, Russell was exposed to Unibestos.

Russell was unable to identify any asbestos product with which he came in contact at the Point, other than to recall ³⁵⁴ work trailers bearing the name Reid Hayden. He worked for Lloyd E. Mitchell, Inc., for Heat and Power for seven or eight years, for Riggs-Distler, and for Poole and Kent. For Poole and Kent, Russell worked at almost every mill at the Point— “all over the place.” With Heat and Power he was “in and out” of the Point and “all over different places.” With RiggsDistler, Russell worked the plate mill, the soaking pits, the open hearth, and the rolling mill. He worked at No. 4 Open Hearth where he did both new construction and repair work with other trades, including pipe coverers.

In preparation for his deposition Russell apparently had made notes recording his best recollection of the dates when he worked at the Point for Riggs-Distler. He testified that these dates were “close.” Within the decade during which PCC produced asbestos products, Russell’s notes reflect that he was at the Point for Riggs-Distler a total of twelve months on three occasions, in December 1963, from September 1969 through March 1970, and from November 1970 through February 1971. He was also at the Point in March and April 1972, the months next following PCC’s cessation of manufacturing Unibestos. The jury could infer that Unibestos previously purchased by Bethlehem was still in its inventory during those two months.

Russell was also asked whether he could recall seeing any trades other than pipe coverers actually working with products that he believed contained asbestos, an inquiry that developed the following testimony: “ ‘Answer: No. No other trades. They also had company pipe coverers there, too. They were working with that stuff. > “ ‘Question: From Bethlehem Steel? “‘Answer: Yes. “ ‘Question: How do you know they were from Bethlehem Steel? “ ‘Answer: They always kept a bunch around. We knew the difference from who was who. “‘Question: Could you tell from the hats? ³⁵⁵ “ ‘Answer: You could tell because they have a badge.’ ” (Emphasis added).

Thus, the evidence places Russell at the Point doing pipe covering work for twelve to fourteen months while Unibestos was available to Bethlehem pipe coverers. Further, pipe coverers employed by Bethlehem were “always” around when Russell was working for a contractor. The jury could conclude from Webb’s testimony that Bethlehem pipe coverers regularly used Unibestos interchangeably with the products of other manufacturers. Pipe coverers work in proximity to pipefitters.

There was sufficient evidence of substantial causation to take the case to the jury on behalf of Russell against PCC. C. Leaf The evidence of Leafs exposure to asbestos is the testimony of his brother, Matthew. The Leaf brothers worked together as pipefitters employed by contractors. PCC submits, and we agree, that the sufficiency of the substantial cause evidence as to PCC turns on Leafs work in 1965 on No. 5 Blast Furnace at the Point.

In 1965 there was a row of ten, identical, blast furnaces at the Point extending along the south side of East Furnace Road for approximately one mile. Number 5 Blast Furnace was just west of No. 6 Blast Furnace which was directly across Furnace Road from, and approximately 500 feet south of the southern end of No. 4 Open Hearth. These blast furnaces were complexes consisting of the furnace proper and its stoves. The furnace itself is a structure approximately 200 feet high by 125 feet in circumference.

Each blast furnace is heated by four stoves, connected to the furnace by piping. Each stove is 175 feet high. Lagaz described each complex as involving “miles” of covered pipe. The piping, its asbestos covering, and the block insulation in the furnace and stoves were periodically replaced.

Lagaz estimates there was an outage of one or two blast furnaces per year. The process of stripping, repiping, and reinsulating a ³⁵⁶ blast furnace took approximately three months per complex to complete. Thus, during three to six months of every year, a blast furnace was being refitted at the Point from 1953 through 1970 according to Lagaz’s testimony. Up to 1,000 persons would be engaged over a twenty-four hour period in working on a blast furnace outage.

Lagaz compares the asbestos dust to shaking a bag of flour, and the dust was present all day. He testified, in effect, that JM, Unibestos, Kaylo, and Armstrong half-rounds and block were used at all ten blast furnaces between 1953 and the mid-1970s. The jury could reconcile this recollection-based testimony with the stipulated period of Unibestos manufacture by concluding that Unibestos was used interchangeably from 1962 to 1972. The Leaf brothers worked on the removal of the old asbestos covering from the pipes at No. 5 Blast Furnace and on the installation of new pipe.

Installation of new pipe was followed by pipe covering which Lagaz performed. Referring to outages, as opposed to maintenance work, Lagaz testified that he used Unibestos pipe covering and block interchangeably with three other asbestos manufacturers’ products in each of the ten blast furnaces. The jury properly could infer that Unibestos was used as pipe covering and block in the massive reinsulation of No. 5 Blast Furnace in 1965. The Leaf brothers worked on the No. 5 Blast Furnace outage for a shift of twelve hours in a twenty-four hour period, seven days each week, for six consecutive weeks.

Thus, there was sufficient evidence that the plaintiff Leaf was regularly and proximately exposed to Unibestos, which was frequently used. D. PH and McNiel PH describes itself as, at all relevant times, an insulation contractor and supplier of thermal insulation products in Maryland and three other states. PH asserts, and McNiel does not dispute, that there is no evidence placing McNiel in proximity to PH insulators. McNiel instead relies on the ³⁵⁷ evidence of Webb and Lagaz identifying JM asbestos products in use throughout the Point.

To connect PH to JM, McNiel asserts that PH was the exclusive distributor for JM in Maryland from 1950 to 1969. To prove that contention McNiel cites excerpts from a deposition of Charles Holterman (Holterman) taken on July 29, 1981 in connection with litigation then pending in New Jersey. As PH points out, the Holterman deposition testimony is not substantially different from the Holterman testimony that we considered in Balbos, 326 Md. at 214-15 , 604 A.2d at 462 . The 1981 Holterman deposition reflects that, from the standpoint of PH as a seller of asbestos products, it thought of itself as an exclusive distributor for JM.

From the standpoint of JM as a seller, however, the Holterman testimony reflects that some of the product lines that PH was selling as a JM distributor were also available and sold through JM distributors of refractory products. Further, JM also sold directly to certain accounts, whom JM called “original equipment manufacturers.” The quoted expression was not explained in the evidence. In Balbos we held that a substantially similar description of the relationship between PH and JM did not permit the jury reasonably to infer that JM products at the worksite were PH products. Balbos, 326 Md. at 214 , 604 A.2d at 462 .

That holding applies to McNiel’s claim against PH as well. At oral argument McNiel cited to two portions of the voluminous original record to demonstrate that the proof here for liability exceeded that in Balbos . In the case before us PH stipulated with the plaintiffs that products sold by PH to Bethlehem were used at the Point by Bethlehem employees and by other contractors. Also, an official of another insulation contractor, MCIC, Inc., stated that he did not know of any JM distributor, other than PH, in this area, that distributed on a regular basis.

This additional testimony is consistent with Holterman’s testimony and does not alter the result from that in Balbos . ³⁵⁸ Accordingly, the judgment in favor of McNiel against PH is reversed. II Punitive Damages In this part we consider the contentions of PCC and PH that the trial court erred in denying their motions for judgment on the issue of punitive damages, and we consider the plaintiffs’ contention that the motion for judgment was erroneously granted in favor of ACandS on punitive damages. In Phase III the jury found that punitive damages should be assessed against both PCC and PH as to users and bystanders from 1965 to the date of verdict. “User” had been defined for the jury “as an individual who comes in contact with asbestos fibers by directly handling an asbestos-containing product.” “Bystander” had been defined for the jury “as an individual who did not directly handle an asbestos-containing product, but was near enough to an asbestos-containing product’s fibers to come in contact with those fibers.” The Maryland Rule The test for the imposition of punitive damages in a non-intentional tort action was articulated in Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 601 A.2d 633 , reh’g denied, 325 Md. 665 , 602 A.2d 1182 (1992). In Zenobia , this Court made it clear that a plaintiff must prove actual malice, not merely implied malice, to recover punitive damages in a non-intentional tort action.

Zenobia, 325 Md. at 460, 601 A.2d at 652 . Zenobia announced that a plaintiff could prove actual malice by establishing that the “defendant’s conduct was characterized by evil motive, intent to injure, ill will, or fraud.” Id. (footnotes omitted). See Montgomery Ward v. Wilson, 339 Md. 701 , 664 A.2d 916 (1995); Ellerin v. Fairfax Savings, F.S.B., 337 Md. 216 , 652 A.2d 1117 (1995); Komornik v. Sparks, 331 Md. 720, 725 , 629 A.2d 721, 723 (1993); Adams v. ³⁵⁹ Coates, 331 Md. 1, 13 , 626 A.2d 36, 42 (1993); Davis v. Gordon, 183 Md. 129, 133 , 36 A.2d 699, 701 (1944).

We recognized that the term “actual malice” “has meant different things in the law, that its popular connotation may not always be the same as its legal meaning, and that its use has been criticized. Nevertheless, we simply use the term in this opinion as a shorthand method of referring to conduct characterized by evil motive, intent to injure, ill will, or fraud.” Zenobia, 325 Md. at 460 n. 20, 601 A.2d at 652 n. 20 (citations omitted). This Court referred to an earlier case in which the “actual malice” standard was described as follows: “[T]o entitle one to [punitive] damages there must be an element of fraud, or malice, or evil intent ... entering into and forming part of the wrongful act. It is in such cases as these that exemplary or punitive damages are awarded as a punishment for the evil motive or intent with which the act is done, and as an example or warning to others.” Id. at 455 , 601 A.2d at 650 (quoting Philadelphia, W. & B.R. Co. v. Hoeflich, 62 Md. 300, 307 (1884)).

Zenobia recognized the inherent difficulty in translating the aforementioned definition of “actual malice” to products liability cases. Id. at 460-63 , 601 A.2d at 653-54 . We noted that “it is not likely that a manufacturer or supplier of a defective product would specifically intend to harm a particular consumer.” Id. at 461 , 601 A.2d at 653 . Consequently, “in products liability cases the equivalent of the ‘evil motive,’ ‘intent to defraud,’ or ‘intent to injure,’ which generally characterizes ‘actual malice,’ is [1] actual knowledge of the defect and [2] deliberate disregard of the consequences.” Id. at 462 , 601 A.2d at 653 .

This two-part standard looks to the state of mind of the defendant. Additionally, we required in Zenobia that “in any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages.” Id. at 469 , 601 A.2d at 657 . We reasoned: ³⁶⁰ “Use of a clear and convincing standard of proof will help to insure that punitive damages are properly awarded. We hold that this heightened standard is appropriate in the assessment of punitive damages because of their penal nature and potential for debilitating harm.” Id.

This Court was careful to note that the relevant inquiry is as to the defendant’s knowledge of the defect and danger associated with the product, “at the time the product left the defendant’s possession or control.” Id. at 462 , 601 A.2d at 658-54 . In United States Gypsum Co. v. Mayor of Baltimore, 386 Md. 145 , 647 A.2d 405 (1994), we further elaborated: “[0]ur punitive damages test has a temporal element. While we acknowledge that there may be cases where particular post-sale evidence may tend to show actual knowledge and conscious disregard at the time of sale, evidence which merely demonstrates an awareness acquired after sale does not indicate actual malice at the time of sale.” 336 Md. at 190 n. 22, 647 A.2d at 427 n. 22 (citations omitted). In defining the knowledge component, the Zenobia opinion clearly stated that “constructive knowledge,” “substantial knowledge,” or “should have known,” would not constitute the actual knowledge required to support an award of punitive damages. 325 Md. at 462, 601 A.2d at 653 .

Nevertheless, a willful refusal to know does constitute actual knowledge. Id. at 462 n. 23, 601 A.2d at 654 n. 23. “ ‘ “[KJnowledge” exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth.’ ” Id. (quoting State v. McCollum, 321 Md. 451, 458-61 , 583 A.2d 250, 253-55 (1991) (Chasanow, J., concurring)). Additionally, a products liability plaintiff must show that the defendant, having such actual knowledge, exhibited a conscious or deliberate disregard of the potential harm to consumers.

Zenobia, 325 Md. at 463, 601 A.2d at 654 . Under ³⁶¹ Zenobia it is clear that “negligence alone, no matter how gross, wanton, or outrageous, will not satisfy this standard. Instead the test requires a bad faith decision by the defendant to market a product, knowing of the defect and danger, in conscious or deliberate disregard of the threat to the safety of the consumer.” Id. Further, “the evidence necessary to support a punitive damages award goes far beyond that required to support a compensatory damages award based on the underlying strict liability claim.” Id. at 465 , 601 A.2d at 655 .

Similarly, “the evidence of actual malice that will support a punitive damages award in a products liability action based on negligence requires the plaintiff to prove much more than negligence.” Id. As explained in Komornik , even in cases of egregious negligence, punitive damages will not lie in the absence of evil motive, intent to injure, ill will or fraud. 331 Md. at 724-31, 629 A.2d at 723-26 . In Komomik, as in this case, the claim for punitive damages was based upon non-intentional tortious conduct. Id. at 721 , 629 A.2d at 721 .

The plaintiff argued that, because the defendant had repeatedly decided to drive a motor vehicle while intoxicated, his conduct was sufficiently egregious to warrant the imposition of punitive damages. Id. at 727 , 629 A.2d at 724 . Negligence that qualifies for a pejorative adjective does not satisfy the Maryland test for punitive damages. 6 Historically, the purposes of punitive damages are punishment and deterrence. Zenobia, 325 Md. at 454, 601 A.2d at 649 -50 (citing Schaefer v. Miller, 322 Md. at 321, 587 A.2d at 503; Embrey v. Holly, 293 Md. 128, 142 , 442 A.2d 966, 973 (1982); First Nat’l Bank v. Fidelity & Deposit Co., 283 ³⁶² Md. 228, 282 , 389 A.2d 359, 361 (1978)).

We pointed out in Zenobia that the inconsistent and unpredictable nature of the preexisting implied malice standard for punitive damages actually undermined the objective of deterrence, because persons had no way of determining which types of behavior would subject them to punitive damages liability. 325 Md. at 455, 601 A.2d at 650 . Consequently, those persons could not conform their conduct to avoid such liability. Id. 7 In the case sub judice deterrence is even less a factor inasmuch as the three defendants involved with the punitive damages issues have not sold asbestos products for more than twenty years. Overview PCC was a manufacturer which did business nationally, ACandS was a distributor-installer which did business nationally, and PH was a distributor-installer which did business in the Middle Atlantic area.

PH, and its predecessors, had been in the asbestos business since the 1920s. ACandS was incorporated in 1957 as a contracting subsidiary of Armstrong Cork Company (Cork), and began operating in January 1958. PCC entered asbestos product manufacturing in 1962 through the acquisition of a company that had been in that business. None of these defendants argues that there was insufficient evidence that it should have known of the hazards of asbestos.

Each of these defendants, however, asserts that there was insufficient evidence for the jury to find, under the clear and convincing evidence standard, that the respective defendant had made “a bad faith decision ... to market a product, knowing of the defect and danger, in conscious or deliberate ³⁶³ disregard of the threat to the safety of the consumer.” Zenobia, 325 Md. at 463, 601 A.2d at 654 . As we shall explain below, we agree. For a number of reasons our review of the evidence will concentrate on the period from the late 1950s to the early 1970s. Prior to that period, whenever medical literature that was relatively widely distributed in this country had directed attention to asbestos, the focus, generally speaking, had been on the health risks of persons exposed to raw asbestos in mining and manufacturing, particularly in textile manufacturing. 8 In the late 1950s no producer of asbestos products placed any health warnings on its products.

During the mid-1960s some manufacturers began to affix health warnings. The jury found that PH and PCC were not liable for punitive damages for exposures prior to 1965. Published in December 1965 was an important public health study of the effects of exposure to asbestos on those who installed asbestos products. See I.J. Selikoff, et al., The Occurrence of Asbestosis Among Insulation Workers in the ³⁶⁴ United States, 135 Annals N.Y.Acad. of Sci. 139 (1965) (the Selikoff Study).

Dr. Selikoff examined 1,117 men who were, or had been, members of the Newark, New Jersey and New York City locals of the International Association of Heat & Frost Insulators & Asbestos Workers (the Union). Id. at 141. “[EJvidence of pulmonary asbestosis was present in almost half the men examined.” Id. at 146. “[RJadiologically evident pulmonary asbestosis varied directly with the duration of exposure. Insulation workers with relatively short periods of exposure have a significantly lower incidence____” Id. “Of 379 men whose exposure had begun from 10 to 19 years before examination, more than half still had normal X-rays. Some abnormality was seen on X-ray in 167 of these cases but in only nine was the asbestosis greater than minimal.” Id. at 147. “On the other hand, among the 392 men with more than 20 years elapsed from onset of exposure, the very large majority had X-ray evidence of pulmonary asbestosis.” Id. “In 10 men, lung cancer was found, and in one, pleural mesothelioma.” Id. at 149.

Dr. Selikoff concluded “that asbestosis and its complications are significant hazards among insulation workers in the United States at this time.” Id. at 152. Dr. Selikoff was also able to obtain for examination, principally from autopsies, lung tissue from forty-five former asbestos insulation workers. He compared these specimens with lung tissue from eleven men working in a factory making asbestos insulation material. Id. at 148-49. “Although the data are limited and conclusions perhaps unwarranted, analysis of the findings suggests that the pulmonary fibrosis among [the asbestos factory workers] was significantly greater than among the Building Trades Union Insulation Workers.” Id. at 149.

The era with which we are concerned ends about 1972 when PCC, ACandS, and PH discontinued manufacturing or using products containing asbestos. These changes, which appear to have been part of an industry-wide movement to use substitutes for asbestos in insulation, roughly coincide with the adoption of safety standards under the federal Occupational ³⁶⁵ Safety & Health Act of 1970, 29 U.S.C. §§ 651 through 678 (OSHA). During the era under consideration, a respectable body of opinion considered that asbestos-caused diseases, principally asbestosis, could generally be avoided if dust in the work environment could be kept below a certain limit, the threshold limit value (TLV). One of the groups holding that view was the American Conference of Governmental Industrial Hygienists (ACGIH).

It was not a governmental body, but was composed primarily of local, state and federal health officials. ACGIH had begun to issue TLVs in 1946. B. Castleman, Asbestos: Medical & Legal Aspects, at 257 (3d ed. 1990) (Castleman). Drawing in part on what some states had been using as a maximum allowable concentration, ACGIH chose a TLV for asbestos of five million particles of dust per cubic foot (MPPCF).

Id. This is a measurement of dust of all kinds. “Though it may sound like a high concentration, 5 MPPCF of dust in air is not even visibly dusty.” Castleman at 250. For comparison purposes, Castleman refers to the reported analysis of air samplings taken in the courtrooms of a courthouse in Rochester, New York in 1935 where the dust levels were measured at 30-43 MPPCF. Id. & n. 54 .

In 1968 and in 1970 ACGIH published notices of an intended change, under which the safety standard for asbestos would measure exposure to asbestos fibers, but ACGIH’s TLV was not officially changed until after an OSHA standard was in effect. Id. at 271 . The Walsh-Healey Public Contracts Act had adopted a 12-fiber standard in 1969. 34 Fed.Reg. 7946, 7953. The first permanent health standard under OSHA for exposure to asbestos dust became effective July 7, 1972. 37 Fed.Reg. 11318 (1972).

This health standard was expressed as an 8-hour, time-weighted average of airborne concentrations of asbestos fibers, longer than five micrometers or microns, determined by a more technically advanced method, the membrane filter method. 29 C.F.R. § 1910 .93a(b)(l) and (e) (1973). So measured, the standard was five fibers (5ficc), with an absolute ceiling at any given time of ten fibers. Id. & § 1910.93a(b)(3). Further, this OSHA regulation, for the first ³⁶⁶ time at the federal level, required a health warning on asbestos products. 9 The original promulgation also provided for the standard to drop to 2ffcc effective July 1, 1976. § 1910.9Sa(b)(2).

The intent was to set a standard that would reasonably assure that no asbestos induced disease would develop in a worker exposed to asbestos every workday, throughout the workday, over a working career of forty years. 10 Of significance to the punitive damages issue before this Court is the Secretary of Labor’s recognition in 1972 that, with proper precautions, asbestos would not be a health hazard. The Secretary’s promulgation of the first non-emergency asbestos dust standard in part stated: “No one has disputed that exposure to asbestos of high enough intensity and long enough duration is causally related to asbestosis and cancers. The dispute is as to the determination of a specific level below which exposure is safe. Various studies attempting to establish quantitative relations between specific levels of exposure to asbestos fibers and the appearance of adverse biological manifestations, such as asbestosis, lung cancers, and mesothelioma, have given rise to controversy as to the validity of the measuring techniques used and the reliability of the relations attempted to be established.

Because of the long lapse of time between onset of exposure and biological manifestations, we have now evidence of the consequences ³⁶⁷ of exposure, but we do not have, in general, accurate measures of the levels of exposure occurring 20 or 30 years ago, which have given rise to these consequences. There are also controversies concerning the relative toxicity of the various kinds of asbestos, and varying hazards in different workplaces.” 37 Fed.Reg. at 11318. In the instant matter the plaintiffs’ approach to proving liability for punitive damages was to rely in large measure upon the proof directed toward liability for compensatory damages. In written and oral argument before this Court the plaintiffs have emphasized, from their state of the art proof on negligence and strict liability, evidence demonstrating direct, and not imputed, knowledge on the part of the defendant corporations that serious health hazards were associated with exposure to asbestos.

Much of the evidence deals with the health risks to a respective defendant’s own employees. Against the foregoing background, we review the evidence on which plaintiffs rely. A. Pittsburgh Coming Corporation 1 PCC manufactured asbestos pipe covering and block under the name, Unibestos. PCC entered the business in 1962 when it acquired the assets of UNARCO, including an existing asbestos production plant in Tyler, Texas.

PCC also constructed a factory for asbestos products that occupied approximately ten percent of the area of PCC’s facilities at Port Allegany, Pennsylvania. The Port Allegany asbestos plant opened in February 1964 and included a built-in dust collection system. PCC’s supplier of raw asbestos was Cape Asbestos, whose mines were in South Africa. Cape Asbestos also manufactured asbestos products in the United Kingdom.

The executive director and chief chemist of Cape Asbestos, Richard Gaze, met with PCC officials prior to PCC’s entry into the business. Their discussions included the potential dangers of ³⁶⁸ asbestos, which Gaze considered to be a useful product when handled with precautions. In his testimony Gaze pointed out that, in the 1960s, the industry was dealing with a situation created by working conditions that had existed fifteen or more years before, and that one did not know whether precautionary steps then being taken would be effective. One of Gaze’s recommendations was that PCC hire a medical director.

PCC hired as a consultant Dr. L.B. Grant, the medical director of one of the corporate owners of PCC. In the spring of 1962 PCC gathered a number of articles from medical and scientific literature in order to learn more about the health consequences of asbestos exposure. Most of these articles dealt with the mining of asbestos or its use in the textile industry. A Norfolk, Virginia insulator had inquired of PCC’s technical services department whether there were hazardous chemicals in the dust of Unibestos when subjected to bandsaw cutting.

The reply of January 1963 was that, “[w]ith UNIBESTOS there are no hazardous chemicals in the dust from cutting.” It was pointed out that the air could become laden with asbestos fibers, causing a feeling of “discomfort” so that PCC’s own workmen used respirators. The reply identified the respirator brand and PCC’s source. Also in 1963 a PCC production supervisor went through issues of the publication, Industrial Hygiene Report, and made longhand notes of the articles on asbestosis, including the connection with cancer. That same year PCC engaged the Industrial Hygiene Foundation of America to review the potential health hazards of handling asbestos in the manufacture of pipe insulation at the Tyler plant.

Air samples taken were analyzed by the Kettering Laboratory. All samplings were well within the TLV, except at the site of a dust collector when it was being cleaned. The report noted that there was “some evidence that the most active particles are those fibers between twenty and fifty microns in length.” Included in the report were tables presenting the findings in terms of particle length, but the ³⁶⁹ report presented no standard against which to measure those findings. The vice president of manufacturing for PCC, Byrl Stout (Stout), met with Dr. Grant in October 1964.

Stout had read an article in the New York Times stating that a rare form of cancer, mesothelioma, was caused by exposure to asbestos. The two recognized that employees at the Tyler plant who had worked for the prior owner had a longer exposure and a greater potential for future disability than employees at Port Allegany. Stout “suggested” that Dr. Grant initiate periodic environmental surveys, possibly every two years, and that they begin sometime after January 1, 1965. A process control engineer from Port Allegany, Ronald Francis (Francis), was sent in October 1965 to study operations at the Cape Asbestos plant in England.

There he saw a newspaper article about a form of cancer, mesothelioma, that was described as so rare that its existence had been disputed until recent years. It had been identified in asbestos factory workers, in their spouses, and in those living near the factories. Francis also met with Gaze who said that PCC’s dust levels were too high. Francis saw that equipment at the English plant was shrouded.

He reported all of this information to PCC’s president and others. The president would not authorize an estimated $180,000 for shrouding, because the Port Allegany plant was not profitable. Francis testified that he was considered “an alarmist” because the State of Pennsylvania had inspected the plant and found that the TLVs had been met. He further testified that the workers at all of the plants comprising PCC’s Port Allegany facility, including the Unibestos plant, had respirators to wear.

At Stout’s request Dr. Grant visited the Texas plant in November 1965. Operations had not changed from those studied in the Industrial Hygiene Foundation survey. In a memorandum to the plant manager following his visit, Dr. Grant noted that “no significant findings relating to asbestos exposure have been encountered” in the annual chest x-rays given to employees. He instructed the plant manager to ³⁷⁰ continue the x-ray program and to have operations resurveyed “at least every two years to have evidence of the fact that control measures remain adequate.” In December 1965 Dr. Grant learned that a person who had been exposed at the Tyler plant for five years under the prior ownership had obtained a compensation award in 1961.

The State of Pennsylvania again inspected the Port Allegany plant in January 1966 and found that the dust exposures were below the TLV. The director of the Division of Industrial Hygiene concurred in the advisability of PCC’s planned installation of pneumatic conveyers at the feeding machines. The Industrial Hygiene Foundation surveyed selected operations at the entire Port Allegany facility of PCC in April 1966, including the Unibestos plant. Using the five MPPCF TLV and the midget impinger technique, which was “still standard practice in the United States,” the survey found that the standard was exceeded only in the area of the raw asbestos feeder.

A number of recommendations were made. Dr. Selikoffs study was discussed at an April 1966 meeting of representatives of companies who sponsored the Industrial Hygiene Foundation, according to a memorandum by Dr. Grant describing the meeting. Relying on Dr. Lewis J. Cralley of the United States Public Health Service (USPHS) ■ as his source, Dr. Grant stated in his memorandum as follows: “The Division of Occupational Health of [USPHS] ... feels that Dr. Selikoffs claims are not scientifically based. In fact, the work of Dr. Cralley on the environmental aspects refutes the work done by Dr. Selikoff.

However, Dr. Cralley’s work has not received the publicity that Dr. Selikoffs work has. The Division of Occupational Health has not tried to interfere with Dr. Selikoffs research grant. They are, however, calling to the attention of the USPHS Contract Monitor the statements that Dr. Selikoff has made in the past which are considered unscientifically based. They will continue to do this in the future.” The memorandum went on to describe how the asbestos industry had not accomplished or published in-house environ ³⁷¹ mental studies and research laboratory investigations.

It then stated: “It was felt the most serious effect of Dr. Selikoffs claims have been on the customer and general public relations. The public will hesitate to use a product that is purported to be associated with serious health implications.” Plaintiffs point to the above-quoted statement as evidence of bad faith on the part of PCC. In the context of the full memorandum, however, it is a statement of a public relations fact of life, namely, the difficulty of conveying to the public the scientific opinion on which PCC, and perhaps others in the industry, were predicating continued production and marketing. In a letter of April 22, 1966 to the president of PCC, Dr. Grant advised concerning the debate in the scientific community over Dr. Selikoffs findings.

The letter also requested PCC’s participation in funding further research. Plaintiffs point to an August 15, 1966 letter by Dr. Grant to the superintendent of the shipyard in Bath, Maine as evidence of PCC’s bad faith. In his letter Dr. Grant stated that “preemployment and annual periodic chest X-ray[s] of all employees in the UNIBESTOS manufacture have failed to reveal any evidence of a dust related pulmonary disease.” As proof that this was not Dr. Grant’s true state of mind, plaintiffs rely on Dr. Grant’s December 1965 memorandum concerning the compensation award made in 1961 to a former UNARCO employee who would never have been examined by PCC. The letter to the Bath shipyards also stated that amosite asbestos “has thus far not been incriminated as a producer of asbestosis.” Plaintiffs claim that statement was not true, but they cite no evidence demonstrating that Dr. Grant knew at the time that it was not true.

Indeed, the very phraseology of the statement by Dr. Grant shows his recognition that scientific knowledge on the subject field was evolving. On December 23, 1966 suit was filed in federal court in eastern Texas against a number of asbestos manufacturers, including PCC, by an asbestos worker, Claude J. Tomplait ³⁷² (Tomplait), who had been employed by a number of insulation contractors. Plaintiffs also introduced minutes of the August 1967 meeting of the Occupational Health and Safety Committee of the National Insulation Manufacturers Association (NIMA). In attendance were Dr. W.C. Cooper of the University of California, Dr. L.J. Cralley of USPHS, Dr. Grant, and representatives of Certainteed Products Corporation and Owens-Coming Fiberglas Corporation (OCF).

The minutes evidence notice of the health hazards of asbestos as well as the efforts then underway to address the problem. Dr. Cooper reported on his studies of insulation contractors on the West Coast which had been in progress for the preceding two years. He intended eventually to study 1,000 to 1,500 insulation workers. He found “evidence of lower lung fibrosis, calcified pleural plaques and/or plevural thickening which he interprets as evidence of asbestosis in about twenty-five percent of those thus far examined.” The time weighted exposure to asbestos by these workers was below the TLV.

He noted that asbestos dust exposure was significantly less in construction workers generally than in ship builders. Fiber counts were low. A California State Health Department study had found in insulation workers two or three cases of mesothelioma and an increase of bronchiogenic carcinoma of about three times over that expected. It was Dr. Cooper’s opinion that these findings raised doubt as to the validity of the TLV.

Dr. Cooper was of the view that control measures could significantly reduce the seriousness of the dust exposure. He recommended wetting down, exhaust ventilation in prefabrication, mixing asbestos cement in a plastic bag, improved housekeeping, and respiratory protection against peak dust concentrations. Dr. Cooper also reported that, to his observation, only twenty percent of the insulators were using respirators. The minutes also reflect the following: ³⁷³ • The United States Department of Labor had nearly completed a study of workers’ compensation problems associated with asbestos; • USPHS was about to begin a one year study of records of the Bureau of Survivors’ Insurance on employees in the mineral fiber industry.

If the records study revealed significant trends in health effects, there would be a follow-up medical and environmental study; and • Kettering Laboratory had completed a duct erosion study for NIMA. Also in August 1967, Dr. Grant distributed to the NIMA Committee a copy of an article that appeared in the then current issue of the Journal of the American Medical Association. It reported on seventeen eases of mesothelioma in one hospital within a three year period. The only environmental exposure of two of the patients was living in a community adjacent to an asbestos mill.

In June 1968 a house counsel for PCC wrote to the attorney in Texas who was defending the Tomplait suit. The letter reported Dr. Grant’s view that the absence of evidence of pulmonary damage among PCC factory workers was of little value in defending the case because the plaintiff, as an applicator, would be exposed to much higher concentrations of dust than factory workers. The letter also sought counsel’s views as to the effect on the litigation of a warning legend that PCC wanted to begin placing at once on cartons of Unibestos. A consultant engaged by PCC resurveyed the airborne dust concentrations at the asbestos plant in Port Allegany and reported in August 1968.

The consultant used both the traditional (midget impinger) instrument underlying the five MPPCF TLV and a new assessment technique (membrane filter) that measured asbestos fibers. Under both approaches the concentrations were high, and the consultant recommended a major redesign of the existing ventilation system. In November 1968 PCC began affixing a warning notice on the shipping cartons of Unibestos block and pipe covering. It read: ³⁷⁴ “THIS PRODUCT CONTAINS ASBESTOS FIBER IF DUST IS CREATED WHEN THIS PRODUCT IS HANDLED, AVOID BREATHING THE DUST.

IF ADEQUATE VENTILATION CONTROL IS NOT POSSIBLE, WEAR RESPIRATOR APPROVED BY U.S. BUREAU OF MINES.” 11 ³⁷⁵ Also in 1968 NIMA published a fifteen page pamphlet entitled “Recommended Health Safety Practices for Handling and Applying Thermal Insulation Products Containing Asbestos. ” The recommended practices were “[biased on the fact that all materials can be handled safely....” The subjects covered were housekeeping, pipe and block insulation, cements, spraying, stripping, and respiratory equipment. The pamphlet was made available in quantity to member companies, and PCC apportioned its allotment among its distributors. A January 9, 1969 memorandum, apparently prepared by Dr. Grant for briefing PCC management, makes the following points: • The current TLV of five MPPCF does not protect and will be lowered. • USPHS and other studies at Port Allegany and Tyler show exposure to hazardous amounts of asbestos dust. • Recent studies by the University of California at Berkeley of insulation workers showed quite “significant” asbestosis and an increase in lung cancer, despite the fact that time weighted exposures rarely exceed five MPPCF or the British upper limit of ten fibers per cubic centimeter. • No study had ever been done specifically on Unibestos installation and tear-out. • The most effective control would be substitution of a less hazardous material for asbestos. • If substitution was not possible, in-plant exposure could be adequately controlled by engineering and medical controls, but “[environmental hazards are much more difficult to control during most installation and tear out.” ³⁷⁶ • Insulation contractors had been educated on health problems and controls by NIMA for the preceding two years at regional meetings of the contractors’ association. • The insulation industry has recently begun using warning labels. In 1970 the United States Navy notified PCC of its intention to cease purchasing Unibestos due to its high asbestos content. 12 PCC presented theoretical reasons why dust from its product should settle faster and therefore present less risk than other products.

The Navy selected a group at the University of California at Berkeley, under the supervision of Dr. Cooper, to test the theory at PCC’s expense. The tests simulated working conditions in a ten cubic foot room. The results showed Unibestos produced significantly more airborne asbestos fibers than any of the other three products tested. The University of California team subsequently published its studies in the scientific community.

In 1971 the Texas Health Department requested a federal inspection of the Tyler plant. The report issued in December 1971 found that concentrations at the vast majority of sampling sites greatly exceeded the existing standard for dust particles and the recommended standard for asbestos fibers. Relatively shortly thereafter PCC discontinued manufacturing insulation products which contained asbestos. The corporate decision was reached sometime prior to September 8-9, 1971.

On those dates Dr. Grant made presentations to the workers at Port Allegany, explaining why they would be required to wear respirators until the change-over to an asbestos-free product could be completed in mid-1972. In further support of punitive damages plaintiffs rely on acts after PCC had affixed warnings. On February 1, 1971 ³⁷⁷ PCC filed answers to interrogatories in a suit brought in federal court in Texas by another installer, Clarence Borel (Borel). Borel asked whether “most of the products manufactured by [PCC] containing asbestos will in most instances have to be cut, sawed, scribed, shaped or mixed by the ultimate user and his employees.” PCC answered “no.” Quoting from a Unibestos catalog, plaintiffs argue that PCC “had stated previously” that “Unibestos ‘is easy to cut and work.’ ” The type of possible contradiction relied on is simply not evidence of bad faith in marketing the product. 13 Plaintiffs also point to another Borel interrogatory.

PCC was asked whether it “had knowledge of any deaths ... among [PCC] employees ... attributed to the inhalation of asbestos dust or fibers.” PCC answered that there were no known cases of death. Plaintiffs contradict the answer with the death certificate of a James W. McMillan who died in Tyler, Texas on November 17, 1970, about three months before the answers were filed. The death certificate states that the immediate cause of death was a malignant mesothelioma due to fine particulate asbestos. Plaintiffs say, without citation to the record, that McMillan was the plant manager.

The death certificate describes him as an “engineer” for PCC. Assuming, arguendo, that the death certificate was admitted to prove the cause of death, but see Benjamin v. Woodring, 268 Md. 593 , 303 A.2d 779 (1973), plaintiffs have not undertaken to demonstrate that whoever furnished the “no” answer to local counsel knowingly furnished false information. Finally, plaintiffs say that PCC advertised in its 1971 catalog that its product would not dust, while knowing of the University of California test results. The catalog to which plaintiffs refer, however, has no date.

It is the same catalog, ³⁷⁸ discussed above, which plaintiffs also argue was published before PCC’s February 1971 answers to interrogatories in Borel. Plaintiffs cite no evidentiary support for a 1971 date of catalog publication. The statement in the catalog is as follows: “These long fibers also give UNIBESTOS its ability to resist rough handling in transit and on the job. It won’t break up and dust as other commonly used materials do, even after continued removal and reapplication.” From the context, the quoted claim for the product is apparently based on the length of amosite fibers, the matting process used in production, and the sodium silicate coating.

In any event, even if the catalog were published for use during 1971, its presence in the field would have coincided with the period when PCC was deciding whether to discontinue asbestos products entirely and thus would not be clear evidence of bad faith. 2 The state of the art proof against PCC cuts both ways. It demonstrates PCC’s actual knowledge of health risks, primarily to its employees, throughout the era, but it also demonstrates PCC’s efforts to protect its employees throughout the era and to warn users after 1968. At all relevant times the widespread belief was that the extent of the health risk depended, in large part, on the length and intensity of exposure. It may be that a jury would believe that the corporate efforts at protecting its employees were inadequate and motivated only by the desire to minimize PCC’s workers’ compensation liability, without concern for consumers.

It may be that a jury would believe that the corporate decision to adopt health warnings came too late and, even then, that it was motivated only by the desire to minimize tort liability. It may also be that a jury would believe that PCC was not only negligent in these respects, but that it was grossly negligent. These possible inferences or conclusions, however, do not demonstrate that PCC made a bad faith decision to market Unibestos in conscious or deliberate disregard of the threat to ³⁷⁹ the safety of the consumer. Plaintiffs have not shown by clear and convincing evidence that, by the time the five MPPCF TLV was in question, PCC did not in good faith believe that its recommendations for exhaust ventilation, wetting, shrouding, containerized mixing, housekeeping, and use of respirators were reasonable protections for users.

At oral argument plaintiffs argue that PCC had actual knowledge (1) of the health risks of asbestos from the dust problems PCC had in its own factories, and (2) that the conditions under which installers worked in the field were worse, environmentally, than in PCC’s factories. Thus, plaintiffs say that PCC had actual knowledge of the risks to installers. To evidence the second element of this argument plaintiffs rely on the June 1968 letter from PCC’s house counsel to its trial counsel in the Tomplait case, advising the latter of Dr. Grant’s opinion that installation was environmentally worse than manufacturing. It should be noted, however, that Dr. Selikoffs study, published in December 1965, contained his opinion, partly informed and partly intuitive, that factory conditions were worse than those to which members of the Union were exposed.

That it may have taken Dr. Grant two and one-half years to depart from Dr. Selikoffs original opinion does not prove bad faith. What is significant under Zenobia is that PCC began placing warnings on its products within months after June 1968. Further, as late as 1971, PCC continued to believe, or hope, that Unibestos was not a health risk because its high concentration of amosite, the long fibered asbestos, would generate less dust and settle more quickly than other products. That notion evidences good faith when one considers that the Navy agreed to defer deleting Unibestos from its procurement list until this theory could be studied.

Moreover, the University of California not only undertook to test the theory, but its scholars also considered the results to be a sufficiently significant contribution to knowledge of the subject as of 1971 to warrant publishing the results. ³⁸⁰ For the foregoing reasons, plaintiffs’ evidence against PCC for punitive damages does not reach the Zenobia standard of proof. B. Porter Hayden The position occupied by PH differs from that of PCC both procedurally in the instant litigation and factually in the asbestos industry. The jury found PH liable for compensatory damages from 1956 to 1979 to both users and bystanders on a negligence theory and from 1956 to the present on a strict liability theory. PH was found liable for punitive damages both to users and bystanders from 1965 to the present.

After briefs were filed in this Court, but before oral argument, PH settled with all consolidated plaintiffs other than Leaf, Russell, and McNiel. The predecessor companies to PH started in the installer-distributor business in the late 1920s. The company maintained offices at one time in Newark, Baltimore, Richmond, and Charlotte and at one time had seventy salaried employees. Essentially PH was an insulation subcontractor which generally furnished both materials and labor.

From as early as 1947 through at least 1969 PH was a distributor of JM products. Its workers were members of the Union who were hired through union hiring halls. Unlike a manufacturer such as PCC, PH was not in a position to require pre-employment physicals. To the extent that the asbestos workers regularly might have undergone physical or x-ray examinations, it was through the Union.

PH’s position vis-a-vis punitive damages is quite simple. It admits that it conducted no field tests, laboratory tests, simulated field condition tests, or other controlled environment tests. It did not conduct any TLV dust counts. It hired no industrial hygienist consultants.

PH acknowledged in discovery responses, read into evidence by the plaintiffs, that “[a]s an installer-distributor, [PH] relied upon the superior knowledge, expertise and resources of the manufacturers of the products it installed and distributed to provide safe and suitable products.” Although that position is not a defense to ³⁸¹ liability for compensatory damages, it is relevant to the punitive damages issue. PH has also admitted in its discovery responses that, during the relevant period, it had not advised persons working with its products to monitor asbestos dust in the work area or to use respirators. The responses put into evidence by the plaintiffs state that PH was not aware that such advice was being given by manufacturers or by anyone else. Plaintiffs’ proof of direct knowledge by PH officials of the hazards of asbestos is based largely on workers’ compensation claims asserted against that defendant by insulation workers whose symptoms became manifest or whose last injurious exposure to asbestos occurred during employment with PH.

The jury’s finding that 1956 marks the beginning of liability for compensatory damages is apparently based on the compensation claim asserted in that year by one LeGrand, who had worked for PH for twenty years in Newark. The claim was settled by the insurer, which informed PH this was “not the first asbestosis case.” PH’s then field superintendent for Newark, Charles Beyer, testified that he was told by a PH sales official, who later became president of PH, to keep quiet about the settlement so that other workers would not be encouraged to file claims (“... I [Beyer] guess they would all be going after it.”). 14 There was also proof that in August 1963 the workers’ compensation carrier for PH sent to a secretarial employee in the Baltimore office a list of workers’ compensation claims asserted against PH over several preceding years. The list included four occupational dust cases, the earliest of which involved a death in March 1959.

Included on the list was Charles Beyer who had made a claim in 1960. ³⁸² Losses incurred by the insurer totaled $60,000 on the four lung dust cases. As the industry changed, PH changed. When the National Insulation Contractors Association published a health precautions brochure in 1971, PH purchased a supply and distributed the brochure to the workers. When OSHA established health standards, PH complied.

When the manufacturers stopped using asbestos in products, PH stopped working with asbestos products. The jury’s finding that PH’s liability for punitive damages begins in 1965 is apparently based upon Selikoffs study of installers, published in December of that year. Plaintiffs accentuate the Selikoff Study because among its subjects were PH employees. The three illustrative plaintiffs with which we are presently concerned, however, were not installers.

Those plaintiffs nevertheless contend that the evidence shows substantial exposure to asbestos dust on the part of trades other than installers. We, however, have not been directed to any proof that contradicts the evidence that installers were not warning bystanders during the relevant period. There is insufficient evidence of actual knowledge on the part of PH that bystanders were considered so clearly at risk that PH’s failure to warn bystanders can be found to be a conscious or deliberate disregard of the safety of persons in the position of the three successful illustrative plaintiffs. Under Zenobia there was insufficient evidence to take punitive damages to the jury against PH on behalf of Leaf, Russell, and McNiel.

C. ACandS ACandS, formerly named Armstrong Contracting & Supply, began insulation contracting as a wholly owned subsidiary of Armstrong Cork Company (Cork) in January 1958. 15 Its ³⁸³ assets were those of the former contracting division of that manufacturer. Cork spun off ACandS in August 1969. Between 1958 and 1969 Cork, for compensation, performed various services for ACandS, including handling insurance matters. ACandS had fifty to fifty-four branches throughout the United States, Canada, and Puerto Rico.

The average number of installers working for ACandS at any given time was between 2,000 and 2,400. They were members of the Union, hired through the hiring halls. Although ACandS was the nation’s largest insulation contractor, its competitors did more business in Maryland than did ACandS. The majority of the products used by ACandS were manufactured for it by manufacturers other than Cork.

Cork permitted ACandS to place the Armstrong label and logo on the packaging of asbestos products made for ACandS by others. Before reviewing the evidence from which plaintiffs argue for punitive damages against ACandS, we address ACandS’s argument that part of that evidence, the deposition of James W. Liddell (Liddell), was erroneously admitted into evidence. 1 Liddell had been president of ACandS. His deposition had been taken in early 1981 in an action then pending in the federal court in eastern Missouri, Bond v. Atlas Asbestos Co., et al. On the request of all of the parties in Bond the court in March 1980 had entered a protective order. ACandS argues to us that use of the Liddell deposition in these consolidated actions violated that protective order.

Whether there is a violation depends on the construction of the order. ACandS construes an introductory provision to apply to all discovery, including deposition testimony, even if the deposition is not marked “confidential.” Plaintiffs, on the other hand, construe provisions of the order dealing with its implementation by stamping documents “confidential” as limiting the breadth of the provision on which ACandS principally relies. The Liddell deposition is not marked “confidential,” ³⁸⁴ and Judge Levin agreed with the plaintiffs’ construction. We shall assume, arguendo, that Judge Levin erred and that, under a correct construction of the protective order and under principles of comity, the Liddell deposition should not have been admitted.

It is to be noted that ACandS does not contend on this appeal that it would be entitled to judgment based on insufficient evidence of its liability for compensatory damages if the Liddell deposition were out of the case. Rather> ACandS argues that it is entitled to a new trial on all issues because of the alleged error. In order to obtain a new trial based on the erroneous admission of evidence the party seeking the new trial has the burden of showing, not only that the admission of the evidence was erroneous, but also that it was prejudicial. State of Maryland Deposit Ins.

Fund Corp. v. Billman, 321 Md. 3, 16-17 , 580 A.2d 1044, 1050-51 (1990); Beahm v. Shortall, 279 Md. 321, 330 , 368 A.2d 1005, 1011 (1977). ACandS has not briefed how the assumedly erroneous admission of the Liddell deposition was prejudicial. That defendant advises that the deposition was referred to by plaintiffs’ counsel once in opening statement and once in closing argument. Examination of the portions of the record to which we have been referred reveals them to be innocuous.

The objectives on the part of the plaintiffs in Bond for taking the Liddell deposition, based upon the excerpts admitted into evidence in the actions before us, seem to have been twofold. The first objective was to show an identity of interest between Cork and ACandS. Cork is no longer a party in the instant actions, and identity of interest is not an issue involving ACandS on this appeal. The second objective was to show knowledge, by individuals who were or later became officers of ACandS, of workers’ compensation claims by installers against Cork as well as against ACandS.

A written stipulation in the instant case listed twenty-six workers’ compensation asbestosis claims made against ACandS over the years, beginning in 1958. Also in evidence are a ³⁸⁵ number of letters from Cork’s insurance department to ACandS listing workers’ compensation claims, including those made by employees of the contracting division of Cork. ACandS makes no objection that the admissibility of these letters depends on authentication through the Liddell deposition. The Liddell deposition may evidence that employees of Cork knew of some of these claims against Cork at an earlier time than the incorporation of ACandS, but that is immaterial to the issue of prejudice.

This is because the trial court modified the jury’s special verdict as to compensatory damages against ACandS to provide that liability would begin only for exposures after ACandS became a separate legal entity. 16 The assumed error in admitting the Liddell deposition is not prejudicial on the issue of punitive damages because, as we shall see in subparts II.C.2 and C.3, infra, Judge Levin correctly granted ACandS’s motion for judgment on that issue, even with the Liddell deposition considered as part of the evidence. 2 Analysis of ACandS’s liability for punitive damages to bystanders is essentially indistinguishable from that of PH. Plaintiffs rely heavily on the defendant’s knowledge of workers’ compensation claims. Because of the long latency period for asbestosis, insulators who had been exposed during earlier years manifested disability while employed by ACandS and claimed against it. In August 1959 the insurance department at Cork advised of a claim in Nevada.

The writer anticipated an increasing number of claims while expressing doubt that “our type of work could cause asbestosis.” ACandS’s manager in Milwaukee advised the home office in December 1961 of several pending claims brought by asbestos workers there and requested information about other possible cases in other ³⁸⁶ ACandS offices. The reply of January 1962 listed twenty-nine claims since 1953 against Cork and ACandS. A later inquiry from the Milwaukee office generated an update in March 1963 adding seven cases. Cork’s insurance manager called it “a rather imposing list of cases.” He stated, “[0]bviously prevention is the key.” Prior to 1964 ACandS insulators had been required to wear respirators only when spraying Limpet, an asbestos product.

In 1964 Charles Zeller (Zeller), the manager of construction for ACandS, whose responsibilities included job safety, attended a conference in New York at which Dr. Selikoff spoke. 17 At that conference, also attended by representatives of the Union, Zeller first learned of the health hazards to installers of asbestos in other forms as well. Liddell attended the same or a similar conference. He said that he there learned that asbestos had been scientifically proven as a cause of asbestosis and of cancers. Previously, he had thought that the causal link was a question that was being debated.

Either immediately before or after the conference, ACandS installers were instructed generally to use respirators. The installers’ response was an “almost total objection” because the respirators were uncomfortable and they could not smoke while wearing them. One source of product for ACandS was the Eagle-Picher Company (Eagle-Picher). It produced cement for ACandS which the latter sold under the Armstrong label as Armatemp # 10 and Armatemp # 166.

These products contained some asbestos. In June 1964 Eagle-Picher advised ACandS by letter that the former planned to add a note to its products cautioning that asbestos was a product constituent. Enclosed with the letter was a portion of the minutes of a then recent ³⁸⁷ meeting of NIMA reporting that JM was printing a caution on its packaging. The proposed JM notice read as follows: “ ‘Caution: This product contains asbestos fiber. “Inhalation of asbestos in excessive quantities over long periods of time may be harmful. “If dust is created when this product is handled, avoid breathing the dust. “If adequate ventilation control is not possible wear respirators approved by the U.S. Bureau of Mines for pneumoconiosis producing dust.’” ACandS was asked whether it wanted Eagle-Picher to place a similar notice on the bags of Armatemp cement.

The response to Eagle-Picher’s letter is not in the record. It is clear that ACandS did not adopt written warnings at that time. The Eagle-Picher letter is evidence of actual knowledge of the hazard arising, as per the caution, “[i]f dust is created when this product is handled____” The warning runs to the person opening the package and concerns handling the product. The Eagle-Picher letter does not deal with risks to bystanders.

Further, because different inferences, or speculations, could flow from the known facts as to ACandS’s good or bad faith toward users, the Eagle-Picher incident does not furnish clear and convincing evidence of a bad faith decision as to users. 18 Plaintiffs also introduced product data sheets for the entire line of products supplied by ACandS. They argue bad faith marketing by ACandS based on the