Eagle-Picher Industries, Inc. v. Balbos

RODOWSKY, Judge. These consolidated tort actions arise out of the deaths of two former shipyard workers. Their deaths were caused by malignant mesothelioma resulting from inhalation of microscopic asbestos fibers. Judgments in favor of the plaintiffs were appealed to the Court of Special Appeals which affirmed the award of compensatory damages and reversed ¹⁸⁷ the award of punitive damages.

Eagle-Picher Indus, v. Balbos, 84 Md.App. 10 , 578 A.2d 228 (1990). Thereafter, we granted cross petitions for certiorari. 322 Md. 737 , 589 A.2d 968 (1991), 325 Md. 248 , 600 A.2d 418 (1992). The instant appeals were argued on the same day as Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 601 A.2d 633 , reh’g denied, 325 Md. 665 , 602 A.2d 1182 (1992). Unlike Zenobia , where the jury verdicts in favor of the plaintiffs rested exclusively on strict liability in tort under the principles of § 402A of the Restatement (Second) of Torts, the plaintiffs’ verdicts in the instant matter were rendered solely on their negligence claims. 1 One of the decedents, Leslie Balbos, died in 1983.

His asbestos exposure occurred during 1942-1944 when he worked as a sheet metal mechanic at the Fairfield Shipyard of Bethlehem Steel Corporation (Bethlehem). The other decedent, Sutton Knuckles (Knuckles), was employed at Bethlehem’s Key Highway Shipyard from 1941 to 1982 as an iron worker-erector. He died in 1984. From among the defendants originally named, we are concerned here only with three asbestos manufacturers and two suppliers/installers of asbestos.

The three manufacturers are Eagle-Picher Industries, Inc. (Eagle), Owens-Illinois, Inc. (Owens), and Pittsburgh Corning Corporation (Pittsburgh). The two installers are ACandS, Inc. (ACandS) and Porter Hayden Company (Porter). In the Knuckles case judgment was entered for $1.8 million in compensatory damages against certain defendants, including petitioners ACandS, Eagle, Owens, Pittsburgh, and Porter. In addition, judgments were entered in favor of the Knuckles plaintiffs for punitive damages of $100,000 against Owens and of $50,000 against Eagle.

In the Balbos case judgment for compensatory damages totaling $2 million was entered on jury verdicts against certain ¹⁸⁸ defendants, including petitioners Eagle and Porter. No punitive damages were assessed against any defendant in Balbos . Each petitioning defendant was allegedly a supplier of chattels, i.e., asbestos products. Each decedent was allegedly a member of a class whom the supplier should have expected to have been endangered by the product.

The only theory of liability with which we are concerned is a negligent failure to warn. It is conceded that no defendant warned users of the dangers of asbestos prior to the mid-1960s. No defendant contends that it was physically impossible or economically prohibitive for it to have affixed a warning to its product at an earlier time. No defendant contends that either decedent was guilty of contributory negligence.

Rather, the defendants’ principal arguments address the sufficiency of any nexus between their conduct and the allegedly wrongful deaths. Although the careful and comprehensive opinion by Judge Alpert for the Court of Special Appeals in its Balbos addressed twenty issues, 84 Md.App. 10 , 578 A.2d 228 , the issues that the petitioners present on this certiorari review can be consolidated into ten issues. These involve: (I) the number of defense peremptory strikes; Eagle’s (II) and Porter’s (III) duties to warn; Eagle’s (IV) and Porter’s (V) products as substantial factors in causation; Bethlehem as a sophisticated user (VI) and its conduct as a superseding cause (VII); the possible efficacy of any warning (VIII), particularly in mesothelioma cases (IX); and (X) a bundle of punitive damages arguments. Additional facts necessary for a consideration of each question will be presented with the discussion of that issue.

I Peremptory Challenges The petitioning defendants submit that the circuit court erred by denying them their right to participate in the ¹⁸⁹ exercise of six peremptory challenges. Maryland Rule 2-512(h) governs. It reads: “Each party is permitted four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impanelled. For purposes of this section, several plaintiffs or several defendants shall be considered as a single party unless the court determines that adverse or hostile interests between plaintiffs or between defendants justify allowing to each of them separate peremptory challenges not exceeding the number available to a single party.

The parties shall simultaneously exercise their peremptory challenges by striking from the list.” The problem here arose near the end of a day devoted to voir dire. The working premise of the circuit judge had been to consider manufacturer defendants and installer defendants as adverse or hostile interests, to each of which the court would allow separate peremptory challenges equal to the number available to a single party. This approach had been used in other asbestos disease cases in Maryland trial courts. Inasmuch as the circuit judge had determined to seat four alternate jurors, that approach would allow a total of eighteen peremptory strikes and require, at a minimum, a venire of thirty-four persons (12 + 4 + 18).

Excuses and challenges for cause had reduced the venire to twenty-eight persons. The court explored alternatives with counsel. The plaintiffs were willing to waive two challenges and to exercise only four, thereby making a total of eight challenges available for all defendants (12 + 4 + 4 + 8 = 28). For present purposes there were two separate interests on the defendants’ side of the case, the petitioning defendants and MCIC, Inc., an installer which had separate counsel.

MCIC insisted on independently exercising six peremptories. 2 Petitioners insisted that they be allowed to exercise six per ¹⁹⁰ emptory challenges, separately from MCIC. 3 The circuit court ruled that there would be eight peremptory challenges exercised on the defendants’ side, four by petitioners and four by MCIC, separately from each other. As a result of this ruling, the petitioning defendants did not participate in exercising six peremptory strikes. Further, by treating MCIC as a separate interest, the court necessarily concluded that MCIC and the petitioning defendants had adverse or hostile interests. The trial judge need not expressly have articulated that finding.

See Kloetzli v. Kalmbacher, 65 Md.App. 595, 599 , 501 A.2d 499, 501 (1985), cert, denied, 305 Md. 621 , 505 A.2d 1342 (1986). Petitioners, who had urged in the circuit court that they be treated as an interest adverse to MCIC, do not question the underlying finding of adversity. 4 Petitioners’ argument is that, upon the finding of adverse interest, Rule 2-512(h) “requires that ... adverse co-parties are entitled to participate in the exercise of the same number of peremptories as the co-parties would otherwise collectively share in the absence of adversity.” Brief of ACandS, et al., at 38. In terms of a jury of twelve persons with four alternates, petitioners’ submission is that they were entitled to participate in six strikes, so that MCIC would have been entitled to exercise six strikes as well. This argument ignores a previous interpretation of Rule 2-512(h) in St. Luke Evangelical Lutheran Church v. Smith, 318 Md. 337 , 568 A.2d 35 (1990), where we stated: ¹⁹¹ “When there is a single party on one side and multiple parties on the other, the single party will be entitled to four peremptory challenges while the coparties will ordinarily share four strikes.

A single party, then, will have twice as many strikes as each opposing coparty. If, however, the court rules that the coparties have adverse or hostile interests, those parties may be allowed up to four peremptory strikes each.” Id. at 342-43 , 568 A.2d at 37 (emphasis added). Although this language clearly conveys that the trial judge has discretion to limit each adverse coparty’s interest to less than a full allotment of strikes, the quoted language was not essential to the outcome of the case. Here, after considering the history and purpose of Rule 2-512(h), we confirm the interpretation in St. Luke Church and in the instant case by the Court of Special Appeals.

The Court of Special Appeals interpreted Rule 2-512(h) to provide that, upon finding hostility with a coparty, the trial court, in its discretion, could divide among the separate interests the strikes to which, absent hostility, all plaintiffs or all defendants were entitled, to be exercised separately, or the court could grant additional strikes and allocate the peremptories, so increased, among the separate interests, to be exercised separately by each interest. Balbos, 84 Md.App. at 85 , 578 A.2d at 265 . The Court of Special Appeals further held that “[t]he only limit placed on the discretion of the trial judge is that the number of challenges to be exercised separately by an adverse [interest] may not exceed the number available to a single party.” Id. As Kloetzli pointed out, after making a finding of adverse or hostile interest, the court, “must determine whether that interest would justify allowing the added challenges.” 65 Md.App. at 599 , 501 A.2d at 501 .

Kloetzli did “not hold, however, that every case involving an adverse or hostile interest mandates additional peremptory challenges.” Id. at 603 , 501 A.2d at 503 . The text of Rule 2-512(h) is fully satisfied if the court concludes that the adverse interests do ¹⁹² not justify any additional peremptories, and the court simply divides the basic allotment of peremptories between the adverse interests, to be exercised separately. It is also clear that the reference in Rule 2-512(h) to “the number [of challenges] available to a single party” is a limit on the increase in the number of peremptory challenges which the court, after finding an adverse interest, may allow to one or the other side of the action. The provision does not mandate that the maximum number of challenges permitted to an interest actually be awarded to each adverse interest, or that each adverse interest participate in exercising the maximum number of challenges permitted, as petitioners in essence contend.

Petitioners’ argument does not give full effect to the words “not exceeding,” and would have the maximum ceiling and the minimum floor become one and the same. Were that the intention Rule 2-512(h) would read that the court should allow to each adverse interest “separate peremptory challenges equal to the number available to a single party.” Petitioners point to Kennedy v. Mobay Corp., 84 Md.App. 397, 428-29 , 579 A.2d 1191, 1207 (1990), affd on other grounds, 325 Md. 385 , 601 A.2d 123 (1992); St. Luke Evangelical Lutheran Church v. Smith, 74 Md.App. 353, 361 , 537 A.2d 1196, 1200 (1988), rev’d on other grounds, 318 Md. 337 , 568 A.2d 35 (1990); and to Kloetzli, supra, where the trial courts, upon finding adverse interests, allowed each interest to exercise the number of peremptories allowable to a single party. Those cases, however, do not represent holdings that the actions by the trial courts were required under Rule 2-512(h). Those trial court actions are consistent with the discretion permitted under the rule as we interpret it. 5 ¹⁹³ The history of the provision, as reflected in the archives of the Standing Committing on Rules of Practice and Procedure, also supports the interpretation applied here.

Former Maryland Rule 543 a.4 gave the trial court discretion to permit additional peremptory challenges on a finding of adversity between coparties. See Kloetzli, 65 Md.App. at 598 , 501 A.2d at 501 . In the process of the revision leading to the current rules, which became effective July 1, 1984, the Rules Committee considered peremptory challenges in civil cases at a meeting in 1981. One member observed that “if there are three plaintiffs and one defendant and the court determines that adverse or hostile interests exist between all plaintiffs,” then, under the draft then being considered, “each plaintiff would receive four peremptory challenges.” Minutes, Rules Committee, meeting of April 21, 1981, at 24.

A member of the Rules Committee at that time who, coincidentally, was the trial judge in the matter sub judice, said that then Rule 543 a.4 “alleviates this situation to some extent by giving the court discretion to allow ‘additional’ peremptory challenges.” Id. A motion was carried to embody that concept in the rule’s revision, and that concept carried through to present Rule 2-512(h). Petitioners alternatively argue that the trial court abused its discretion in applying Rule 2-512(h), because, as the record reflects, a substantial motivation underlying the trial judge’s ruling was to avoid sending for more prospective jurors the next day and resuming the voir dire process. As seen above, the circuit court had the power to allocate eight strikes evenly between the two hostile interests on the defendants’ side.

There was no abuse of discretion in not enlarging the number to six strikes per interest. First, the trial judge was not overly impressed by the degree of hostility between the petitioners and MCIC, an installer, given the joint representation by one law firm of both manufacturers and installers in the very case before the ¹⁹⁴ court. Second, the plaintiffs’ surrender of two challenges permitted the court to increase the strikes respectively allowable to petitioners and to MCIC from three each to four each. Thus, although the court had the power simply to divide the required six challenges on the defendants’ side between the two interests, each interest received an additional challenge.

II Eagle's Duty to Warn Eagle submits that it had no duty to warn in Balbos where the decedent’s exposure to asbestos began in 1942 and ended in 1944. The general concept which Eagle invokes is that too little was known about the health hazards of asbestos prior to 1944 so that a court must declare, as a matter of law, that due care could not require warnings. 6 Eagle, however, seeks further to limit that analysis to knowledge of asbestos-induced mesothelioma in persons who did not work directly with asbestos products. Eagle’s position is factually unsupported at the level of the general concept, and it is legally incorrect at the level of specific application. 7 Eagle is a manufacturer. A manufacturer is liable for failure “to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it____” Restatement (Second) of Torts ¹⁹⁵ § 395.

For purposes of applying the “should have known” component of the foregoing standard, a manufacturer of a product is held to the knowledge of an expert in the field. Babylon v. Scruton, 215 Md. 299, 304 , 138 A.2d 375, 378 (1958) (negligence). The manufacturer “ ‘must keep reasonably abreast of scientific knowledge and discoveries touching his product____’” Id. (quoting Harper & James, The Law of Torts § 28.4).

Here Dr. Castleman, the plaintiffs’ principal expert on state of the art, traced the scientific literature beginning in 1898 (with the exception of one reference to the Roman historian, Pliny) through 1941. He brought to court and described in his testimony approximately forty pre-1942 articles dealing with the health risks of asbestos which appeared in scientific, industrial, and governmental publications. He said “there were at least 200 articles that had appeared [up to 1942], probably more like three hundred____ But if you count things like National Safety Council publications that talked about lung diseases and mentioned asbestosis, as well as articles solely devoted to asbestosis and cancer from asbestosis, well, then, you’d be well over 200.” One of the works referred to by Dr. Castleman was an encyclopedia, Occupation and Health, published by the International Labor Office in Geneva circa 1930. It contained a section on asbestos which included a subsection headed “Dangers and Hygiene.” It referred to the refusal by American and Canadian life insurance companies to insure asbestos workers because of assumed deleterious conditions in the industry, a fact that had been reported in 1918 in a United States government publication.

Two doctors in England prepared a fifteen page article on asbestosis as part of a 1938 supplement to the encyclopedia. That article was read by an Eagle sales representative, H.M. Aber, when calling on the Texas State Board of Health in April 1942. In a written report to Eagle, circulated to at least three persons in that corporation, the sales representative, referring to the article, said: “If you think mineral ¹⁹⁶ wool is dangerous you should read this,” and “I urge you to read this as it is very informative.” Eagle’s response to the state of the art literature is that it does not sufficiently alert a manufacturer to a connection between asbestos and mesothelioma in bystanders. That is not the correct unit of consideration.

In Moran v. Faberge, 273 Md. 538 , 332 A.2d 11 (1975), the issue was whether the manufacturer of a flammable cologne was liable for the failure to warn of the product’s flammability when the product had been ignited because a teenager had sprinkled a lighted candle with the cologne. We said that “ ‘ “the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable. Rather, the question is whether the actual harm fell within a general field of danger which should have been antici pated.” ’ ” Id. at 551 , 332 A.2d at 19 (quoting Segerman v. Jones, 256 Md. 109, 132 , 259 A.2d 794, 805 (1969)) (quoting McLeod v. Grant County School Dist., 42 Wash.2d 316, 321 , 255 P.2d 360, 363 (1953)). Moran also pointed out that “ ‘ “foreseeability” refers to the general type of harm sustained.

It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent____ [I]f the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present.’ ” Id. at 551-52 , 332 A.2d at 19 (emphasis added in Moran opinion) (quoting Harper, A Treatise on the Law of Torts § 7 (1933)). See also Restatement (Second) of Torts § 435, comment a (“The fact that the actor, at the time of his negligent conduct, neither realized nor should have realized that it might cause harm to another of the particular kind or in the particular manner in which the harm has in fact occurred, is not of itself sufficient to prevent him from being liable for the other’s harm if his conduct was negligent toward the other and was a substantial factor in bringing about the harm.”). ¹⁹⁷ While the fact that ultimate harm suffered by Balbos would take the form of mesothelioma rather than asbestosis could not have been foreseen by Eagle, this distinction will not preclude liability. In the matter before us the jury could find that Eagle knew or should have known of the hazard of lung disease produced by inhaling asbestos fibers. Mesothelioma is a form of lung disease caused by inhaling asbestos fibers.

There was sufficient evidence to support a finding that Eagle had a duty to warn. Ill Porter’s Duty to Warn Porter was formed in 1928 by four former employees of Johns-Manville for the purpose of installing insulation, principally around industrial pipes. Porter never manufactured asbestos products. 8 It purchased them from manufacturers, mostly Johns-Manville, and, Porter, through its employees, installed those products as a subcontractor at the Fairfield Shipyard and elsewhere. In the Balbos case, Porter unsuccessfully moved for judgment at the close of all evidence, asserting a lack of proof that Porter, prior to 1944, knew about the health hazards of asbestos fibers.

Porter argues here that the Court of Special Appeals applied an incorrect standard when it reviewed the sufficiency of the evidence. The issue is whether Balbos was required to prove that Porter “knew” about the danger or had “reason to know” of it, as Porter contends, or whether Porter “should have known” of it, the standard that Porter says was applied erroneously by the Court of Special Appeals. Related to that issue is whether a nonmanufacturing supplier has a duty to inspect or test a product. See ¹⁹⁸ Restatement (Second) of Torts § 402 (1965); Annotation, Seller’s Duty to Test or Inspect as Affecting His Liability for Product-Caused, Injury, 6 A.L.R.3d 12 (1966) {Seller’s Duty)-, cf Md.Code (1974, 1989 Repl.Vol.), § 5-311 of the Courts and Judicial Proceedings Article (sealed container defense).

Porter emphasizes the approach currently taken by the Restatement, under which manufacturers and nonmanufacturing suppliers of products are held to different standards of “knowing” whether their products are dangerous or defective. In order to hold a retailer or other nonmanufacturing supplier liable on a negligence theory, a plaintiff must prove that the supplier knew or had “reason to know” of the danger of the product. See Restatement (Second) of Torts §§ 388(a), 399, 401 & comment a, 402; Foremost-McKesson Corp. v. Allied Chem. Co., 140 Ariz. 108 , 680 P.2d 818, 823 (Ct.App.1983); Fernandes v. Union Bookbinding Co., 400 Mass. 27 , 507 N.E.2d 728, 732 (1987). 9 A manufacturer, on the other hand, may be held liable when it “should recognize” that the product creates an unreasonable risk of physical harm.

See supra Part II; Restatement (Second) of Torts § 395 & comment e. In the Restatement, “reason to know” and “should know” are terms of art: “(1) The words ‘reason to know’ are used throughout the Restatement of this Subject to denote the fact that the actor has information from which a person of reasonable ¹⁹⁹ intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists. “(2) The words ‘should know’ are used throughout the Restatement of this Subject to denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that such fact exists.” Id. § 12; see also id. § 401 comment a, § 402 comments d & e. There is no direct evidence that Porter, knew of the danger of asbestos prior to 1944. Rather, Balbos relies on circumstantial evidence.

Balbos submits that the purchases by Porter of asbestos from manufacturers support an inference that Porter had the same knowledge as manufacturers. Dr. Castleman testified that one issue of Asbestos magazine in 1930 contained an advertisement for JohnsManville, a happy birthday wish to the president of Reid Hayden, a wholly owned subsidiary of Porter, and a notation referring to the U.S. Bureau of Labor Statistics’ interest in pulmonary asbestosis. Dr. Castleman also testified that some general-knowledge encyclopedias included notes on asbestosis as early as 1939 or 1940. The Court of Special Appeals reviewed this evidence and held that “[a] jury ... could reasonably infer that Porter Hayden could have discovered this information about the hazards of asbestos ‘by utilizing the peculiar opportunity and competence which [it] has or should have as a dealer in’ asbestos-containing products.” Balbos, 84 Md.App. at 51 , 578 A.2d at 248 (emphasis added) (quoting Woolley v. Uebelhor, 239 Md. 318, 325 , 211 A.2d 302, 306 (1965)).

In Zenobia we held that a supplier-installer such as Porter is held to a “should have known” standard when the action is based on the principles of strict liability under ²⁰⁰ § 402A of the Restatement. 325 Md. at 443 n. 11, 601 A.2d at 644 n. 11. We left open the question of whether the supplier-installer’s standard would be different when the action is based on a negligent failure to warn. Id. We now hold that, as to a supplier-installer, it is not.

In Woolley, 239 Md. 318 , 211 A.2d 302 , a car dealer claimed that it should not be liable for an accident allegedly caused by brake failure, because the master cylinder was defective when the dealer acquired the car. This Court stated that “a vendor, like a manufacturer, is subject to liability if, although ignorant of the dangerous character or condition, he could have by the exercise of reasonable care discovered it by utilizing the peculiar opportunity and competence which he has or should have as a dealer in such chattels.” Id. at 325 , 211 A.2d at 306 (citing Restatement of Torts § 402). This Court, however, affirmed a directed verdict for the car dealer because a reasonable inspection by a competent dealer would not have revealed the defect. Id.

A similar issue arose in Frericks v. General Motors Corp., 274 Md. 288 , 336 A.2d 118 (1975), appeal after remand, 278 Md. 304 , 363 A.2d 460 (1976), an automobile crash case involving allegations of negligent design of the roof supports and of the seat locking mechanism. The retail-seller car dealer was joined as a defendant. We cited Woolley for the above-quoted proposition. Id. at 304-05, 336 A.2d at 128 .

But we also said that “[djealers cannot be expected to duplicate the engineering and planning resources available to giant automobile manufacturers for the purpose of ascertaining that every model of car they sell is designed without negligence. ” Id. at 305 , 336 A.2d at 128 . Because “it cannot be presumed from the mere existence of the defective design that the dealer had or should have had the requisite knowledge” and because there were no specific allegations that the dealer did so, we affirmed a dismissal on the face of the pleadings of the negligence count against the car dealer. Id. at 305-06 , 336 A.2d at 128 . ²⁰¹ Neither Woolley nor Frericks, under the “should know” standard for retailers in products liability actions based on negligence, found any breach of a duty to test or inspect. Woolley cited the first Restatement’s version of § 402. 10 The drafters of the Second Restatement deleted the “should know” standard of the original Restatement, and adopted the following rule: “A seller of a chattel manufactured by a third person, who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not liable in an action for negligence for harm caused by the dangerous character or condition of the chattel because of his failure to discover the danger by an inspection or test of the chattel before selling it.” Restatement (Second) of Torts § 402 (1965).

The change was made because the cases did not support the earlier statement. The Reporter’s notes for the Second Restatement comment that: “The cases hold that there is no duty to inspect, except in the types of situations covered in original § 401. The doubt about whether there is a duty which is created by original § 402 should be dispelled by a clear statement that no duty exists. At the time these Sections were originally drafted, no decision of any Court of last resort in England or America had ever held that a vendor had a duty to inspect chattels before selling them.” Restatement (Second) of Torts § 402, app. at 458 (1965); see also 5 F. Harper, F. James & O. Gray, The Law of Torts § 28.29, at 556-58 & nn.8 & 9 (1986) (Harper & James) (criticizing Second Restatement for taking this position but acknowledging that it was well-supported by case law). ²⁰² The rationale of Frericks is consistent with that underlying the current form of § 402.

This Court looked to the Second Restatement’s version of § 402 in Telak v. Maszczenski, 248 Md. 476 , 237 A.2d 434 (1968). In that case the plaintiff was seriously injured when he struck his head on the bottom of a seven-foot-deep, backyard swimming pool after diving from the diving board. We affirmed a directed verdict for the retail seller who neither manufactured nor installed the pool. The opinion recognized the Second Restatement’s distinction between “reason to know” and “should know.” Id. at 485 , 237 A.2d at 439 .

The Court applied that distinction to the retail seller when the plaintiff sought negligence liability under §§ 388 and 399 of the Restatement. Moreover, the opinion quoted the newer version of § 402, but found it inapplicable under the facts of that case. Id. at 487, 237 A.2d at 440 . Telak and § 402 of the Second Restatement state the common law of Maryland: when a seller or other nonmanufacturing supplier is nothing more than a conduit between a manufacturer and a customer, the retailer ordinarily has no duty in negligence to discover the defects or dangers of a particular product.

See State ex rel. Bohon v. Feldstein, 207 Md. 20, 31-34 , 113 A.2d 100, 104-06 (1955) (allegation that landlord “should have known” of improper installation of water heater insufficient to state cause of action); State ex rel. Bond v. Consolidated Gas, Elec. Light & Power Co., 146 Md. 390, 398 , 126 A. 105, 108 (1924) (no tort duty owed to third party by retailer of auxiliary gas stove, sold in same condition as received, that leaked carbon monoxide); Flaccomio v. Eysink, 129 Md. 367, 374, 381 , 100 A. 510, 513, 515 (1916) (neither liquor wholesaler nor saloonkeeper liable to purchaser of whiskey who was blinded because whiskey contained wood alcohol rather than grain alcohol); Seller’s Duty, 6 A.L.R.3d at 17; 2 L. Frumer & M. Friedman, Products Liability § 6:03[l][a] (1991); Harper & James, supra, § 28.29, at 556-57.

Absent statutory modification, a “conduit” supplier is held to the “reason to know” ²⁰³ standard of §§ 12, 388(a) and 401 of the Second Restatement. The nonmanufacturing supplier, however, may do something more than merely act as a conduit of goods, and those additional acts may impose a higher standard of care upon the supplier. See Kaplan v. Stein, 198 Md. 414, 421-22 , 84 A.2d 81, 84-85 (1951) (car dealer had duty to inspect used car that it loaned to customer who had returned purchased car for repair); Seller’s Duty, supra, §§ 8, 10, 11; Harper & James, supra, § 28.29, at 559. In this case, Porter was not merely a conduit of goods.

Porter not only supplied asbestos products to the shipyards, its employees also installed those products, and that installation created danger to other workers. In many cases retailer-installers have been held to a duty to inspect or test a product, although the standard of care is not necessarily as high as that imposed on a manufacturer. 2 Frumer & Friedman, supra, § 6.03[4], at 6-48, 6-54; see Harper & James, supra, § 28.-29, at 557 (arguing for a rule that would hold sellers to a duty of discovering defects that could be revealed by inspection, as opposed to mechanical testing); Seller’s Duty, supra, § 8. It appears that in most of those cases, however, the retailer-installer has been negligent in the installation itself. See 2 Frumer & Friedman, supra, at 6.03[4] & n. 63.

Balbos did not argue, and the evidence does not suggest, that Porter’s installation was negligent in that it departed in some way from the intentions of the manufacturer. Nor does Balbos argue that Porter had a duty to inspect or test the product. Balbos does submit, however, that Porter had a duty to discover that the product was dangerous by reading literature that was available at the time. Here, Porter’s installation activity, in addition to selling products manufactured by others, is analogous to the service department activities of automobile dealers, whose alleged negligence in products liability cases we have analyzed under a “should have known” standard.

That standard considers what reasonably should have been discover ²⁰⁴ ed in light of the supplier’s peculiar opportunity and competence as a dealer in the particular type of chattel. There was sufficient evidence here to allow a jury to find a duty on Porter to warn in 1942-1944. Porter was formed by former employees of Johns-Manville, a company that dealt almost exclusively in asbestos products. Porter installed or otherwise supplied asbestos products acquired almost exclusively from Johns-Manville.

By 1947 Porter had offices in several of the mid-Atlantic states. Obviously asbestos was critical to Porter’s business, and it is reasonable to infer that many Porter laborers were directly exposed to asbestos virtually every work day. It is an historical fact that, by Chapter 465 of the Acts of 1939, asbestosis was made compensable as an occupational disease under the Maryland workers’ compensation act, so long as the injured employee had been involved in “[a]ny process or occupation involving an exposure to or direct contact with asbestos dust.” Md.Code (1939), Art. 101, § 34. Reasonable care under all of those circumstances would require Porter to make some effort to keep abreast of the literature on asbestos.

Porter cannot escape that duty because it employed no physicians, nurses, or industrial hygienists on its staff. Further, there was sufficient evidence from which the jury could have found that a reasonable familiarity with the product would have included awareness of the dangers. Dr. Castleman testified that by 1942 there were many articles about asbestosis within the public domain. To be sure, some of those articles were in obscure publications, and we do not mean to imply that Porter had a duty to discover information presented, for example, in a German medical journal.

But Castleman’s testimony reflects that there was information available in nonobscure publications, such as the Encyclopedia Americana of 1939 or 1940, sufficient to put an installer-supplier on notice of the danger. Hence Balbos met his burden of proving that Porter had a duty to warn. ²⁰⁵ IV Eagle’s Substantial Factor Causation Eagle manufactured a powder, containing asbestos, from which to make insulating cement. Eagle argues that there was insufficient evidence of a substantial causal relationship between either decedent’s exposure to its product and the fatal mesotheliomas. Evaluation of that argument requires an appreciation of the workplace environments of each decedent.

A In 1942-1944 when Balbos was employed at Fairfield as a sheet metal worker, that shipyard was engaged exclusively in building Liberty ships, a World War II cargo vessel. Asbestos products were used for insulation. There was evidence from which the jury could have found the following. Bethlehem used two insulation contractors at Fairfield, each of which supplied its own materials.

One was Reid-Hayden, which later merged into Porter, and the other was Armstrong Cork (Armstrong). Each did the insulation on alternate ships. Eighty percent of the insulation on a Liberty ship was in the engine room, where the boilers, turbines, and myriad runs of pipe had to be covered. The engine room of a Liberty ship was approximately two stories high, with catwalks at the higher level.

The length and width of the engine room approximated one-half of the area of a large, ceremonial courtroom. Additional piping had to be insulated in the shaft alley, an enclosed area running aft from the engine room bulkhead to the propeller. The engine room and shaft alley were ventilated by air drawn by fans through large funnels on the deck, and thereafter through sheet metal ducts, into the areas below deck. There were no exhaust systems.

Asbestos was brought into these work areas in the form of blocks, tubing, blankets, cloth, and powder. Dust was ²⁰⁶ created by sawing, breaking, ripping, crushing, and stirring these products. The blocks came in three foot lengths, six inch widths, and varying thicknesses. They were used to line the outside of boilers and turbines.

To prevent sharp edges and to give the covering a neat appearance the six inch widths were cut lengthwise in half by hand saws. The blocks also had to be cut into wedge-shaped pieces for circular surfaces. Asbestos tubing was used to cover the pipes. Tubing came in three foot lengths, with interior diameters of varying sizes.

Viewed cross-sectionally, the tubing was either a circle with a slit or two semi-circles, called “half-rounds.” In order to obtain a tight fit it was not uncommon to cut a narrow strip from the length of the tubing to be placed around a pipe. At every elbow, joint, and valve the tubing had to be cut to fit. Insulators working on scaffolding, or on catwalks, or at the bottom of the engine room, would simply let the cut-off scraps and short pieces of block and tubing free fall. Asbestos blankets and cloth, also used to wrap pipes or otherwise to layer insulation, were usually simply ripped to the desired size.

Powdered asbestos cement was mixed with water to form a coating which was applied over the blocks, tubes, blankets, and cloth in order to fill in all of the crevices and to create a finished appearance. Building a single Liberty ship required 100 bags of asbestos cement, each weighing 100 pounds. Clouds of dust were created when this powder was dumped into mixing tubs or buckets. The wet cement was applied with trowels.

Drippings of cement fell and were left to dry where they landed. Working in, and trooping through, the engine room were other trades, including sheet metal workers, of whom Balbos was one. All of the workers further contributed to creating ambient asbestos dust by crushing underfoot the scraps and dried cement drippings. Even when laborers ²⁰⁷ cleaned up the work area by shovelling or sweeping the debris, dust was generated.

As a result, all of the workers in the engine room, including not only insulators, but also electricians, pipefitters, riggers, iron worker-erectors, and sheet metal workers, would be covered with a white coating of asbestos dust. Balbos’s brother, who also worked at Fairfield and who would regularly meet Balbos for lunch, described Balbos as covered with asbestos dust when they met. Eagle’s asbestos cement contributed to this scene. The product was used by both of the supplier-installers at Fair-field for application to high temperature surfaces.

It was applied in layers. After the first layer dried, a second layer was applied until the specified thickness was obtained. B Key Highway, where Knuckles worked, was a very large ship repair yard with the capacity to work on ten to fifteen ships at one time. The repair work involved first ripping out the damaged or otherwise deficient area of the ship to be repaired.

The ripping out process generated asbestos dust from the old insulation. Replacement work, particularly in the engine room, required new insulation, and that work proceeded much in the fashion of the insulation of newly constructed ships at Fairfield, described above. A witness who worked as an acetylene burner at Key Highway continuously from 1946 to 1982 saw Knuckles at work “practically every day.” As an erector, Knuckles would hang new plates. This could be done on the outside of the ship, on the keel plates, in the engine room, in the boiler room, and in the shaft housing.

Those in Knuckles’s trade would erect catwalks and handrails in the engine and boiler rooms and erect the foundations for engines. A frequent activity in the Key Highway shipyard was rotor inspection which a ship would require approximately every five years. This involved breaking through the asbestos cement and block covering of the main turbine to ²⁰⁸ remove the cover and, after inspection and any repair, re-insulating the turbine. The witness who had been a burner also described working in the 1970s with Knuckles on two, specifically identified ships, each of which were in the yard for one year.

Their stems were tom out and replaced in order to install new rudders. That same witness additionally recalled working in the 1950s with Knuckles on the conversion of former troop ships which were “completely gutted.” A witness who worked as a pipe coverer at Key Highway for twenty-eight years beginning in 1949 identified Eagle “66” cement as one of the products which he used during that period. Another witness who from 1951 to 1982 operated a forklift delivering asbestos products from a central warehouse at Key Highway to the various ships in the yard described delivering 100 pound bags of Eagle cement to ships in the yard. C Eagle’s submission is that neither in Balbos nor in Knuckles did the plaintiffs produce sufficient evidence to permit a jury to find that Eagle’s failure to warn was a proximate cause of the decedents’ deaths.

Eagle does not dispute, however, that the principle of proximate causation by which the evidence concerning causation in fact is to be determined is the substantial-factor rule, and not the “but-for” rule. As pointed out in W. Keeton, Prosser & Keeton on The Law of Torts § 41, at 266 (5th ed. 1984) (Prosser), “[i]f two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result,” some test of proximate causation, other than “but-for” is needed. Accordingly, Restatement (Second) of Torts § 431 states the following rule: “The actor’s negligent conduct is a legal cause of harm to another if ²⁰⁹ (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.” In products liability involving asbestos, where the plaintiff has sufficiently demonstrated both lung disease resulting from exposure to asbestos and that the exposure was to the asbestos products of many different, but identified, suppliers, no supplier enjoys a causation defense solely on the ground that the plaintiff would probably have suffered the same disease from inhaling fibers originating from the products of other suppliers. 11 Further, in the instant cases, a medical expert for the plaintiffs testified that “all of [the] exposures to asbestos were a significant contributing causal factor to the mesothelioma,” because the causation is “cumulative.” The defendants’ medical expert also believed that a person must reach an undefined “threshold” of asbestos exposure before exposure will cause mesothelioma. Thus, the failure to warn on the part of any one supplier of an asbestos product to which a decedent was exposed can operate as a concurrent proximate cause with the failures to warn on the part of other such suppliers.

See Wehmeier v. UNR Indus., 213 Ill.App.3d 6 , 157 Ill.Dec. 251, 256 , 572 N.E.2d 320, 335 (1991); Sholtis v. American Cyanamid Co., 238 N.J.Super. 8 , 568 A.2d 1196, 1205 (1989); O’Connor v. Raymark Indus., 401 Mass. 586 , 518 N.E.2d 510, 513 (1988). Eagle’s argument that its conduct was not a substantial factor is made on several levels. At the most ²¹⁰ primitive level Eagle emphasizes the lack of direct evidence specifically placing either decedent in the immediate area of the use of an Eagle product at the time when that product was being used. Exposure, however, may be established circumstantially.

See Roehling v. National Gypsum Co. Gold Bond Bldg. Products, 786 F.2d 1225 , 1228 (4th Cir. 1986) (“The evidence, circumstantial as it may be, need only establish that [plaintiff] was in the same vicinity as witnesses who can identify the products causing the asbestos dust that all people in that area, not just the product handlers, inhaled.”). The causation question here is whether the evidence and inferences most favorable to the plaintiffs support a finding that exposure to Eagle’s products was a substantial factor in the death of each decedent. Neither decedent in the cases before us worked directly with asbestos products; rather, they were bystanders.

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 bystander plaintiff. See, e.g., Rotondo v. Keene Corp., 956 F.2d 436 (3d Cir.1992) [1992 Asbestos Lit.R.

(Andrews) 24,745]. 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. See Robertson v. Allied Signal, Inc., 914 F.2d 360, 367-68 (3d Cir.1990); Lohrmann v. Pittsburgh Coming Corp., 782 F.2d 1156, 1162-63 (4th Cir.1986); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482-83 (11th Cir.1985); Wehmeier v. UNR Indus., 157 Ill.Dec. at 256-58 , 572 N.E.2d at 335-37 ; Eckenrod v. GAF Corp., 375 Pa.Super. ²¹¹ 187, 544 A.2d 50, 52-53 , alloc, denied, 520 Pa. 605 , 553 A.2d 968 (1988). “In addition, trial courts must consider the evidence presented as to medical causation of the plaintiffs particular disease.” Lockwood v. AC & S, Inc., 109 Wash.2d 235 , 744 P.2d 605, 613 (1987). The way in which the foregoing principles are applied to the facts in the cited cases is informative.

In Blackston, 764 F.2d 1480 , the plaintiff had been a pipefitter for thirty-five years, but the case involved only two years of that period during which the plaintiff worked on the construction of a paper mill in Georgia. The defendant, one of the contractors on that job, used the asbestos product in question, but the plaintiffs evidence “did not show that he was working in the vicinity [where] it was being used.” Id. at 1481 . Robertson v. Allied Signal presented the claims of workers at a tire manufacturing facility where the principal activity took place in a building three levels high with a total area of 862,000 square feet. One of the defendants, Allied Signal, made the asbestos brakes used on certain cutting machines in the stock-cutting area.

The trial court had granted summary judgment for Allied Signal. That judgment was reversed as to one plaintiff whose job was to run the mill that supplied the cutters, so that that plaintiff worked in proximity to the cutters for seven years. Judgment for Allied Signal was affirmed as to the other plaintiffs who worked elsewhere in the building. The size of the tire manufacturing facility in Robertson was used to distinguish that case in Rotondo v. Keene Corp., 956 F.2d at 441 [1992 Asbestos Lit R. at 24,750].

Rotondo was a welder at the Philadelphia Naval Shipyard in 1942-43. The defendant manufactured an asbestos pipe covering called “Ehret.” In reviewing a judgment for the plaintiff, the Third Circuit applied governing Pennsylvania law, as enunciated in Eckenrod v. GAF Corp,, 544 A.2d 50 , where “[t]he court stated that ‘a plaintiff must establish more than the presence of asbestos in the workplace; he must ²¹² prove that he worked in the vicinity of the product’s use.’ In particular, a plaintiff must present evidence ‘to show that he inhaled asbestos fibers shed by the specific manufacturer’s product.’ The relevant evidence is ‘the frequency of the use of the product and the regularity of the plaintiff’s employment in proximity thereto.’ ” 956 F.2d at 439 [1992 Asbestos Lit.R. at 24,748] (quoting 544 A.2d at 52-53 (citations omitted)). Those requirements were satisfied in Rotondo for the following reasons: “In summary, the testimony introduced in the instant case did not merely place Ehret pipecovering ‘somewhere’ in a large facility, but rather placed it in the specific area (i.e., the boiler room) in which Rotondo worked. In addition, the evidence established that Rotondo worked in the boiler room of the Monticello at least 2 days a week for at least 3 to 4 months during the summer of 1942, and that the pipecoverers used the Ehret product fifty percent of the time.” 956 F.2d at 442 [1992 Asbestos Lit.R. at 24,751].

The facts in the cases before us are quite similar to those in Roehling v. National Gypsum, 786 F.2d 1225 . The plaintiff was a pipefitter who for six months had worked on the construction of new boilers at the power station of an industrial plant. He did not apply insulation, a task done by asbestos installers who followed behind in the progress of the work. The boiler walls were insulated with asbestos block and then covered with asbestos cement.

An insulator-helper testified that “ ‘tons of’ ” the defendant’s cement were used on the boiler walls. Id. at 1227. Summary judgment for the cement supplier was reversed because the facts and underlying inferences established that the plaintiff “worked in the same limited area of the plant, at the same time” as the insulators “working side by side.” Id. at 1228. In the cases before us the juries could reasonably find that Eagle’s “66” cement was specifically designed for ²¹³ high temperature surfaces and that, at Fairfield and Key Highway during the respective periods of employment of the decedents, great quantities of “66” were used regularly, thickly to coat the housings of the steam and energy generating units, and the pipes emanating therefrom, in ships which were newly constructed, converted, or repaired.

Further, the jury in Balbos could conclude that the engine room was the area of the most dense concentration of asbestos fibers in newly constructed Liberty ships. The jury could further infer from the description of Balbos’s being covered regularly with asbestos dust, that he was frequently exposed in the engine room area. In the Knuckles case, there is direct evidence placing Knuckles within the engine room area of ships under repair, as well as working on exterior plates. Although Knuckles’s exposure in the engine room area of ships to fibers from high temperature asbestos cement may not have been as regular as that of Balbos, the exposure of Knuckles was over a much longer period.

Indeed, each decedent had about the same concentration of asbestos fibers in his lung tissue, as determined on autopsy. Thus, the jury in each case could find that the decedent was frequently exposed to fibers from the Eagle “66” asbestos cement in the proximity of the engine room of ships where that product was regularly used. V Porter’s Substantial Factor Causation Porter argues that there was insufficient evidence in Knuckles to find that Knuckles was injured by Porter’s products or installers. Knuckles presented two theories of liability against Porter: that Porter’s employees exposed Knuckles to asbestos fibers during installation of products at the Key Highway shipyard, and that Porter sold to the shipyard Johns-Manville (Manville) asbestos products to which Knuckles was exposed.

The Court