Adams v. Owens-Illinois, Inc.

JAMES S. GETTY, Judge (retired), Specially Assigned. This is an appeal from jury verdicts in nine asbestos cases that were consolidated for trial in the Circuit Court for Baltimore City. The trial judge (Pines, J.) also consolidated 159 additional asbestos cases involving eleven corporate defendants. The verdicts at trial, therefore, were binding as to negligence and product liability in all of the consolidated cases. ³⁹⁹ The complexity of the cases is best illustrated by the length of the trial.

The plaintiffs! cases consumed forty-two trial days, and the defendants’ presentation lasted nineteen days. The entire case, from jury selection until the verdicts were rendered, lasted approximately six months, beginning January 17, 1995, and ending July 26, 1995. The jury deliberated for fifteen and one-half hours over a three-day period. The plaintiffs and their alleged asbestos-related diseases were: 1.

Estate of George Best and surviving widow, Almetta Best, laryngeal cancer. 2. Thomas Birchett and Louise Birchett, lung cancer. 3. Estate of Abram Hedges and surviving widow, Marie Hedges, lung cancer. 4. Estate of Hody Ruffin, colon cancer. 5.

Dominic and Dossie D’Amico, asbestosis. 6. Edwin Wild and the Estate of Mary Wild, asbestosis. 7. Claim of Edwin Wild, Estate of Mary Wild and Edwin Wild, surviving husband, mesothelioma — death by household exposure. 8. Estate of Phillip Parsons and Elsie Parsons, surviving widow, mesothelioma. 9.

Estate of Charles Drebing and Mildred Drebing, surviving widow, mesothelioma. The jury returned verdicts for the defendants in the first seven cases set forth above, and plaintiffs’ verdicts in cases numbered eight and nine. The damages awarded in the Parsons case included no damages for wrongful death, and $86,000 in the estate case. In Drebing, the jury allowed compensatory damages in the amount of $112,500 to Mildred Drebing.

In the Personal Representative’s case, no damages were awarded for pain and suffering, or for medical and funeral expenses. Appellants allege that the defendants had agreed to the $2,000 statutory amount of funeral expenses, ⁴⁰⁰ and that $42,981 in medical bills for Drebing’s last illness were proved. 1 The verdicts on liability as to the defendants are as follows: AC & S, Inc. Armstrong Foster Wheeler Negligent, not strictly liable Not negligent, not strictly liable, but whose asbestos products were a substantial factor in causing Parsons’s and Drebing’s mesothelioma. Not liable. GAF Corporation (cross-defendant) Negligent, not strictly liable.

Hopeman Bros. Not liable. Owens-Coming John Crane, Inc. Negligent, strictly liable. Not liable.

Pittsburgh Corning Porter-Hayden Owens-Illinois (cross-defendant) Negligent, not strictly liable. Negligent, not strictly liable. Negligent, strictly liable. Fibreboard Corporation (cross-defendant) Not liable.

Combustion Eng. (cross-defendant) Not liable. Babcock & Wilcox Not liable. Bethlehem Steel Not liable (in the Mary Wild domestic exposure case only).

Appellants allege that they have appealed because of “flagrantly unjust and conflicting verdicts directly attributable to gross errors committed by the trial court in jury selection, which led to the open alienation, disaffection, and hostility of jurors being visited upon the plaintiffs.” Specifically, appellants raise the following issues, which we have rephrased in a more neutral fashion: 1. Whether the trial court abused its discretion in denying appellants’ motion to strike, for cause, potential jurors Nos. 1, 3, 24, and 67. 2. Whether appellants were deprived of allotted peremptory strikes by the court’s denial of appellants’ motion to strike the above-named jurors for cause. ⁴⁰¹ 3. Whether the court erred in denying appellants’ motion for new trial, which was based upon: a.

Errors in jury selection, b. Irreconcilable contradictions and confusion in jury verdicts, c. Failure to grant new trials in the seven cases where no recovery was awarded. 4. Whether the court erred in denying a motion for new trial as to all appellants against Bethlehem Steel, Hope-man Brothers, and Foster Wheeler. 5.

Whether the court erred in admitting testimony and exhibits concerning communication and knowledge of labor unions as to the dangers of asbestos. Jury Selection Jury selection began on January 17,1995, and continued for three days. The array consisted of 88 potential jurors. From that number, six jurors were selected to hear the case and eight alternates were chosen.

Each side was allotted seven strikes. Of the fourteen jurors originally chosen to hear the case, five were excused after they were seated. Juror No. 1, an athletic coach at McDonough School, was excused after five months service, and a Johns Hopkins nurse, juror no. 12, was also excused in the fifth month. One day before jury deliberation was to begin, a kindergarten teacher was excused.

Juror no. 11 was excused after two months, and juror no. 14 was excused the day after jury selection. All five had previously requested to be dismissed. Appellants used four of their peremptory strikes, after unsuccessfully requesting that they be struck for cause, to strike jurors no. 1, 3, 24, and 67. Before discussing the four named jurors struck by appellants, it is important to discuss the method of selection followed by the court in this case.

Each juror completed a sixteen-page questionnaire and a separate hardship questionnaire for those who asserted a basis for being excused, followed by three days of individual voir dire by counsel and the court. After each individual juror was ⁴⁰² examined and then excused from the courtroom, counsel argued challenges for cause and hardship claims. On January 30, before final selection, the court permitted a number of panelists to express their concerns about serving, followed by further questioning by counsel and argument to the court. After the court considered the status of all potential jurors, the clerk identified the first twenty-eight and the peremptory challenges were then submitted to the clerk.

The first six remaining became the primary jurors and the eight remaining were alternates. Under this procedure, the court excused approximately twenty-five of the original panel for hardship or cause. Over the six-month period, the court excused one primary juror and five alternates: three for medical reasons, one to attend a funeral, one as a matter of the court’s discretion, and one for hardship (new job) reasons. None of the four about whom appellants now complain served as a primary or alternate juror.

Appellants did not object to using their peremptory strikes to eliminate these four jurors on January 30, when they made their strikes; neither did they seek to explain how they would have exercised their strikes but for the court’s refusal to dismiss them for cause. The trial court’s ruling on jury composition is reviewable on appeal only for an abuse of discretion. State v. Cook, 338 Md. 598 , 659 A.2d 1313 (1995). We defer to the trial judge’s unique opportunity to observe the demeanor and suitability of potential jurors.

Gorman v. State, 67 Md.App. 398, 409 , 507 A.2d 1160 (1986). None of the four challenged jurors stated that he or she would be unable to judge the case fairly and impartially based upon the evidence. Under Maryland law, a juror must be discharged for cause only when that juror cannot be impartial. King v. State, 287 Md. 530, 535 , 414 A.2d 909 (1980).

In McCree v. State, 33 Md.App. 82, 98 , 363 A.2d 647 (1976), we stated that a juror may be struck for cause only “where he or she displays a predisposition against innocence or guilt because of bias extrinsic to the evidence to be presented.” Although the cases cited are criminal, the same logic ⁴⁰³ applies to civil cases; the linchpin in either is lack of bias and a resolve to be fair and impartial. Appellants argue that the four jurors they struck should have been struck for cause based upon hardship. Under section 8-210(a) of the Md.Code Courts & Judicial Proceedings Article, a juror may be excused by the court where “undue hardship, extreme inconvenience, or public necessity require his excuse____” Significantly, the trial judge, through his personal observation, is able to assess the credibility, demeanor, and fitness of each prospective juror. Judge Pines granted some hardship requests and denied others on an individual basis.

The record does not support the suggestion that he abused his discretion in selecting a jury. Appellants, furthermore, raised no objection to the jurors who actually heard the case. In St. Luke Evangelical Lutheran Church v. Smith, 318 Md. 337, 344 , 568 A.2d 35 (1990), a case involving a procedural irregularity in the distribution of peremptory challenges, the Court said, “In civil cases this court will not reverse for an error below unless the error was both manifestly wrong and substantially injurious.” A claim that the jury was not impartial, furthermore, must focus on the jurors who served. Grandison v. State, 341 Md. 175 , 670 A.2d 398 (1995).

Appellants opposed every effort by appellees to obtain a mistrial for juror bias. Clearly, appellants have shown no prejudice in the composition of the jury that did not include the four jurors struck for cause by appellants. Even if it were error not to strike the four jurors for cause, there is no basis for reversal absent a showing of prejudice. We perceive no prejudice in the jury selection process.

New Trial Appellants have maintained throughout the issues they have raised that the jury dissatisfaction with the length of the trial resulted from the court’s refusal to advise the jury at the outset of the trial that the case might last five months. On January 26, 1995, prior to the jury being sworn, appellants’ counsel filed a Motion to Inform Jurors of Trial Length and Hiatuses. The motion set forth the scheduled dates, begin ⁴⁰⁴ ning with February 13, with the likelihood that only four trial days would be utilized through February 27, followed by a no-court period for two weeks. Thereafter, trial days from March 13 to April 13 would continue on the four day per week ■schedule.

Another no-court period was set in from April 13 to April 24. Appellants requested “full and fair disclosure ... at the outset ... so as to lessen the probability of an unjust verdict rendered by an alienated jury.” The court denied the motion and informed the jurors that they weré there “for what we call a protracted case,” which is a consolidation of a number of cases, and that the trial “may very well last several months.” In June, the court clerk was directed to inquire whether the jury would be amenable to a one-month continuation of the trial from July 1 to August 1. According to appellants, the jury was not told that the request was by the court. The response was a series of letters protesting strongly any further delay in the conduct of the trial, and requesting that the court set a July 31 deadline to complete the trial.

The case ended July 27. Interestingly, appellees made a motion for mistrial after receiving what they perceived to be “those very disturbing 7 letters that we received from the jurors.” Appellees all joined in the motion, alleging that “the letters on their face impel the court to grant a mistrial because of the jury’s anti-trial, if not anti-defense bias.” Of primary concern to appellees were the criticisms leveled at defense counsel for initiating two postponements for personal reasons. Appellants, however, argued against granting a mistrial and opposed all requests to voir dire the jury. After the proverbial shoe has fallen, however, the roles are now reversed.

Appellants argue that the jury was hostile toward them, and appellees contend that appellants cannot now reverse their field. If the current posture of the case proves anything, it would seem to us to establish that Judge Pines was right on each occasion he ruled on the mistrial. We have reviewed the seven letters and, in our view, they are not as threatening as counsel for the parties perceive them ⁴⁰⁵ to be. Juror No. 2, who eventually became the foreperson, requested a deadline for counsel to conclude their arguments and added, “It does not benefit their cases to have hostile jurors hearing them.” We do not interpret her comments as an admission that the jurors were currently hostile.

Read in conjunction with the preceding sentence requesting a deadline, her later statement may be interpreted to mean that, unless a date of finality is set, a hostile jury might result. Juror No. 2, moreover, included all counsel in her comments, without any indication of bias or prejudice toward either appellants or appellees. Juror No. 6 was understandably concerned over another delay costing her a job she had just started after a three-year effort to find one. She stated that “the lawyers or whomever should suffer as we have been suffering for almost four months.

They do not need another vacation since we cannot have one____ Please consider talking to the lawyers or who it concerns and encourage or demand them to end this trial by July 27th____” Again, the juror directed her criticism to counsel for both parties. The letter, presumably written early in June, reasonably suggested termination within six or seven weeks, i.e., the end of July. The remainder of the letters expressed a feeling that the jurors were being treated unfairly by the delays, and that their own lives were being disrupted unnecessarily. We agree with the jurors.

Their comments, however, in the court’s opinion did not warrant granting a mistrial, which would have meant a waste of four months for all concerned. Instead, the court heeded the message from the jurors and instructed them not to consider the length of the trial in their deliberations. Presumably, they followed the court’s instructions. Appellants’ next attack on their denial of a motion for new trial relates to the seven plaintiffs who were denied recovery by the jury.

We shall address each claim within the precept of Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 59 , 612 A.2d 1294 (1992), which provides that the discretion of a trial