Garlock, Inc. v. Gallagher

SONNER, J. This appeal arises from the consolidated tort actions of Christine Gallagher and Mary Tamburrino, the surviving spouses of Richard Gallagher and James Tamburrino. 1 The men allegedly died from asbestos that they were exposed to in their working lives, Richard Gallagher as a pipe fitter, and James Tamburrino as a warehouseman. Although plaintiffs listed more than a dozen defendants in their original complaint, at this juncture, the active defendants are John Crane, ¹⁹⁶ Inc.; Garlock, Inc.; Anchor Packing Company; and ACandS, Inc. Notwithstanding the consolidation of the tort actions below, some of the legal issues raised in this appeal refer only to the Gallagher plaintiffs, while others stem from the Tamburrino case. Still, there are a number of issues that overlap within the two cases. Accordingly, in an organization that makes sense to us, we have categorized the appellate questions into three sets: (I) the Gallagher issues; (II) the Tamburrino issues; and (III) the overlap issues.

I. The Gallagher Issues A. Evidence at Trial We begin with a review of the evidence presented at trial. In 1998, Gallagher was diagnosed with mesothelioma. The cancer obliterated the left pleura in his throat, encasing the lung and chest wall, and then spread to other organs in his body. He died before trial, but the jury heard from him by way of a videotaped deposition, taken some months before his death.

From that videotape, the jury learned that Richard Gallagher worked as a pipe fitter for Bethlehem Steel in Sparrows Point, Maryland, from 1946 until his retirement in 1979. The labyrinth of pipes in the steel plant carried steam and corrosive fluids, which needed to be contained and not released into the surrounding environment. For the better part of Gallagher’s work life, the plant used asbestos, a natural mineral product, to insulate the pipes and maintain the flow of materials. Gallagher’s primary asbestos exposure derived from gaskets, which pipe fitters use to seal the “flanges,” or connections, between pipes.

Gallagher explained that he cut and shaped gaskets prior to installation, and removed old gaskets by hand scraping or power grinding, two processes that produced visible dust. He identified Crane gaskets, as well as some other brands, and testified to working with these products “everyday.” Moreover, Gallagher described his as ¹⁹⁷ bestos exposure from insulation, pipe covering, and cement products. Plaintiffs buttressed Gallagher’s deposition testimony with the live testimony of Andrew Youngbar, who worked with Gallagher at Bethlehem Steel for about fourteen years. Gallagher served as Youngbar’s direct supervisor for a year, and the two men worked together regularly until Gallagher retired.

Youngbar described Gallagher as a “hands-on supervisor.” On direct examination, Youngbar identified Crane gaskets and packing as common work materials that were placed in the “bonnet” of a valve. These products arrived at the plant in the manufacturer’s packaging, along with literature discussing their content and purpose. From these enclosures, Youngbar learned that the products contained asbestos. And beyond the printed words, Youngbar recalled the “snow storm” of particles created when a gasket was removed.

Much of Youngbar’s testimony focused on whether and to what extent he witnessed Gallagher working specifically with Crane products. He was sure that Gallagher had manipulated packing products because “[h]e taught [Youngbar] to use it.” He also recalled Gallagher making and removing gaskets. 2 At defense counsel’s prodding on cross-examination, however, Youngbar could not remember a specific instance when Gallagher used a Crane gasket or packing product. To him, the products of the various manufacturers were “interchangeable,” and he could only say that Gallagher used asbestos products regularly. Along with setting out Gallagher’s exposure history, plaintiffs sought to establish the dangerousness of the asbestos ¹⁹⁸ products.

First, William Longo, Ph.D., testified as an expert in the evaluation of asbestos-containing materials. He studied Crane gaskets and determined them to contain between sixty and seventy percent chrysotile asbestos. 3 Second, James Millette, Ph.D., testified as an expert in environmental science, microscopy, and the identification and quantification of asbestos fibers. He also studied a certain type of Crane gasket and determined it to contain about eighty percent chrysotile asbestos. Dr. Millette offered more complete testimony than Dr. Longo, because besides testing the asbestos content of Crane gaskets, he had studied the amount of asbestos fiber emitted into the air when workers used those gaskets in the course of routine pipe fitting.

Both experts supplemented their complicated testimonials with videotaped demonstrations. The third spoke in Gallagher’s wheel of a case was medical evidence as to how his asbestos exposure harmed him. Collectively, three doctors, Samuel Hammer, M.D.; Arnold Brody, Ph.D.; and Edward Gabrielson, M.D.; explained the cause and effect relationship between asbestos and mesothelioma. They described the different types of asbestos, its chemical properties, the difference between occupational and environmental asbestos exposure, how mesothelioma develops, and the latent versus active phases of the disease.

Two other doctors, Ronald Dodson, Ph.D., and Laura Welch, M.D., spoke more specifically to Gallagher’s disease history. All the experts shared the opinion that Gallagher’s exposure to asbestos caused the onset of his mesothelioma, which, in turn, caused his death. The defense put forward two medical witnesses, James Crapo, M.D., and Andrew Churg, M.D., who testified primarily as to the onset of Gallagher’s mesothelioma. Establishing the timing of the disease was important for determining whether Maryland’s statutory cap on non-economic damages applied. ¹⁹⁹ Before trial, the Gallagher plaintiffs settled their direct claims with all the defendants originally listed in the complaint, except Crane.

Plaintiffs settled their claims with Gar-lock and Anchor with “pro-tanto” releases, which meant that any award that they achieved would be reduced by the amount of consideration paid for the releases—$365 for Garlock and $400 for Anchor. Garlock and Anchor remained in the case, however, on Crane’s cross-complaint for contribution. They participated fully in the trial. The jury found that asbestos caused Gallagher’s mesothelioma, Crane’s products were a substantial contributing factor in the development of the disease, and that Crane was both negligent in, and strictly liable for, the use of its products.

The jury also concluded that Crane was not alone in its liability; Garlock and Anchor, along with nine other cross-defendants, owed Crane contribution. Unbeknownst to the jury and the court, just before deliberations, Crane executed a stipulated dismissal of its cross-claims against Garlock and Anchor, pursuant to Maryland Rule 2-506. Neither cross-defendant paid any consideration for the release. Apparently, the parties signed the dismissal on April 23, 2001, following the court’s recitation of the jury instructions, but they did not file it until April 25, 2001.

Meanwhile, the jury returned its verdict on April 24, 2001, and the court entered final judgment in the case on June 28, 2001. Crane’s maneuver presented the court with a dispute as to how many defendants, that is, shares of liability, it should consider in computing the Gallagher award. The rub was that . although Garlock and Anchor were tied to the case when the jury deliberated, according to Crane, they were no longer involved by the time the court entered the verdict. Ultimately, the circuit court ruled Crane’s stipulation was invalid, counted Garlock and Anchor as distinct shareholders in the liability, and entered judgment against all three companies.

The court awarded the Gallagher plaintiffs $2,157,641.52 and awarded Crane $233,418.21 each from Garlock and Anchor. ²⁰⁰ B. Sufficiency of the Evidence Plaintiffs carried the burden of proving that Crane’s negligence in producing its asbestos-containing products was a “substantial factor” in the development of Gallagher’s death. Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208-09 , 604 A.2d 445 (1992) (quoting Restatement (Second) of Torts § 431). Crane argues plaintiffs failed to meet that burden of proof because they presented “no evidence” of the frequency of Gallagher’s use of Crane’s products, and “no competent expert testimony” that Crane’s products, particularly its gaskets, produced respirable asbestos fibers in amounts sufficient to cause disease. Naturally, plaintiffs read the evidence presented at trial very differently.

They emphasize Gallagher and Youngbar’s testimony about Gallagher’s use of Crane gaskets and packing, as well as their testimony as to how its gaskets produced dust when manipulated. They also read Dr. Longo’s and Dr. Millette’s testimony together as proof of the dangerous asbestos content of Crane’s products. We must review this claim of insufficient evidence through the lens of a motion for judgment, because that is how it surfaced at trial. A court may grant a motion for judgment only after it “consider[s] all evidence and inferences in the light most favorable to the party against whom the motion is made.” Md. Rule 2—519(b); see also Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 117 , 604 A.2d 47 (1992).

Thus, we are not privy to dissect the evidence and weigh the credibility of its messengers, which is what Crane has asked us to do. See Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 521 , 682 A.2d 1143 (1996) (stating that “it is not the province of an appellate court to express an opinion regarding the weight of the evidence”). Plaintiffs presented evidence of: (1) Gallagher’s exposure to asbestos, in the form of his deposition testimony and his coworker’s live testimony; (2) the asbestos content of Crane’s gaskets, through the testimony of a handful of experts; and (3) how the exposure caused the development of cancer in ²⁰¹ Gallagher, with the testimony of another handful of experts. That there were weaknesses in the presentation of this evidence cannot concern us; only the jury had the task of sorting out the evidence, that which was weak and that which was strong.

We will not disturb its conclusion. C. The Verdict Sheet The next alleged error concerns the verdict sheet in the Gallagher case, which read in relevant part: o. Do you find by a preponderance of the evidence that Defendant John Crane, Inc. was negligent in the manufacture, sale, supply, and/or distribution of its asbestos-containing products? Yes_No_ (Go to question 6.) 6.

Do you find by a preponderance of the evidence that Defendant John Crane, Inc. was strictly liable in the manufacture, sale, supply, and/or distribution of its asbestos-containing products? Yes_No_ Crane argues that, instead of the generic phrase “asbestos-containing products,” the court should have abided its request to separate out the different Crane products that were discussed at trial because “[t]he jury may well have found exposure to one product but a defect in another.” It notes that plaintiffs presented varying degrees of proof as to Gallagher’s exposure to, and harm from, chrysolite gaskets, crocidolite gaskets, and packing, which left the jury’s verdict vulnerable to interpretation. Indeed, it paints the verdict as a jumble of factual findings, rather than the legitimate end of an orderly thought progression. We also gather from reading the trial transcript, that beyond the outcome in Gallagher’s case, Crane was concerned that future plaintiffs would use the generalized verdict as a sword of collateral attack.

We begin with the premise that the court’s crafting of the special verdict form was discretionary. Thus, we would ²⁰² have to find something very wrong with it to reverse the judgment. See Md. Rule 2—522(c); Garrett, 343 Md. at 525-26 , 682 A.2d 1143 . There was no such error here.

In ACandS, Inc. v. Abate, 121 Md.App. 590, 625-32 , 710 A.2d 944 (1998) (“Abate II”), cert. denied sub nom., 361 Md. 232 (2000), a case in which Crane was also a defendant, the trial court used the type of verdict sheet requested here; that is, the form asked the jury in separate questions whether the defendants were liable with respect to packing and with respect to gaskets. The jury then found Crane liable for the former, but not the latter. The issue on appeal was whether the trial court should have gone further in identifying the subject products by listing their brand names. We answered “no” because the plaintiffs’ burden was to prove that “exposure to visible dust from any asbestos-containing product was excessive.” Id. at 631, 710 A.2d 944 .

As the plaintiffs proved exposure to excessive amounts of asbestos, the defendants’ products that created visible dust could be “lumped together.” Id. at 631 n. 28, 710 A.2d 944 (citation omitted). Abate II did not hold that the verdict form in complex asbestos litigation must differentiate product types, even though that is what the court did in that case. To the contrary, Abate II confirmed that plaintiffs burden is to connect the alleged harm with the defendant’s action. Id. at 632, 710 A.2d 944 .

The burden is no more and no less. Here, the court properly instructed the jury on. the theories of negligence and strict liability. We must assume, then, that the jury understood its charge to determine whether Crane’s products were tied in negligence and strict liability to Gallagher’s death. D. The Verdict Regardless of the propriety of the verdict sheet, everybody, including the trial judge, agreed that the jury’s original verdict in the Gallagher case was incorrect.

The verdict form asked the jury to delineate the compensatory damages for Christine Gallagher, first, in the survivor action, and second, ²⁰³ in the claim of wrongful death. For the first claim, the jury awarded $59,591 in economic loss, and for the second claim, it awarded $1,000,000. Plaintiffs conceded that the $59,591 award belonged to the wrongful death action, and that the evidence did not support the $1,000,000 award. Accordingly, at the parties’ urging, the court corrected the mistakes by moving (and reducing) the $59,591 award to the wrongful death action and erasing altogether the $1,000,000 award.

Notwithstanding these corrections, however, Crane sees reversible error because “nothing could be done to correct for the obvious pervasive jury confusion these errors evidence.” It concludes that “the jury simply did not understand this case or its charge.” We are not so pessimistic. The jury’s miscalculations affected only the award, not the finding of liability, and the court quickly and properly corrected the errors. Reversal of the judgment would have been an extreme response, indeed. E. The Cross-Claims The considerations posed by this fourth claim of error are at once technical and equitable.

The fundamental question is whether Crane’s dismissal of its cross-claims against Garlock and Anchor, after the jury deliberated on those claims, but before the court entered final judgment, was valid. The lurking question is whether Garlock and Anchor should have been counted in slicing the total pie of liability; that is, were there ten defendants, with Crane holding one/tenth share of liability, as Crane argues, or twelve defendants, with Crane holding its share plus Garlock and Anchor’s shares, or three/ twelfths of the liability, as plaintiffs argue? Initially, it may seem counterintuitive for Crane to pursue this matter on appeal. After all, the more pieces in the pie, the less liability for each tort-feasor, including Crane, and presumably Crane could collect whatever Garlock and Anchor owed to it in an action for contribution.

The numbers bear this out; dividing the verdict of $2,157,641.52 by twelve shares would render Crane absolutely liable for $179,803.46, plus the ²⁰⁴ two shares totaling $359,606.92, which it could recoup from Garlock and Anchor. On the other hand, dividing the verdict by ten would render Crane absolutely liable for $215,764.15, which is $35,960.69 more than its obligation under the twelve-share approach. 4 Crane explained to the trial court, however, that it would rather pay a “slightly” higher award, than “go out and collect from [Garlock and Anchor]” and risk being “tied up in appeals.” Moreover, Crane wished to avoid “the unseemly situation of later having a plaintiff say well, look, they are collecting judgments against the same product that they put out themselves.” Having explained the impetus for this question on appeal, we begin its resolution by turning to Maryland Rule 2-506, which states in part: RULE 2-506. Voluntary Dismissal (a) By notice of dismissal or stipulation. Except as otherwise provided in these rules or by statute, a plaintiff may dismiss an action without leave of court (1) by filing a notice of dismissal at any time before the adverse party files an answer or a motion for summary judgment or (2) by filing a stipulation of dismissal signed by all of the parties who have appeared in the action.

(b) By order of court. Except as provided in section (a) of this Rule, a plaintiff may dismiss an action only by order of court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded prior to the filing of plaintiffs motion for voluntary dismissal, the action shall not be dismissed over the objection of the party who pleaded the counterclaim unless the counterclaim can remain pending for independent adjudication by the court. ²⁰⁵ (e) Dismissal of counterclaims, cross-claims, or third-party claims. The provisions of this Rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim, except that a notice of dismissal filed by a claimant pursuant to section (a) of this Rule shall be filed before the filing of an answer.

Thus, the rule provides three ways that a claim can be terminated: (1) the party that initiated the claim may dismiss it before the opposing party responds to the suit; (2) all the parties to the action may stipulate a dismissal at any time before judgment; or (3) the court may order dismissal of the suit. Here, the claim at issue is the one filed by Crane against Garlock and Anchor, and our concern is the second of the three circumstances, where the parties stipulate dismissal. Crane’s maneuver clearly disturbed the trial court, which doubted whether the company had respected “the spirit and intent” of Rule 2-506. The court then nullified the stipulation, explaining: This court finds that the amount recoverable from John Crane is directly linked to the number of joint tort-feasors found by the jury.

Once the number of joint tort-feasors are, in fact, established, the ultimate judgment amount is determined by applying the Maryland Uniform Contribution Among Joint Tort-feasors Act.... Here, Richard Gallagher signed and released 11 joint tort-feasors found liable by the jury, and it is only those 11 settlements that have any effect on the judgment amount. In nine of these releases, the language of the release called for a pro rata reduction of the judgment amount. Accordingly, John Crane, Inc. should be given a credit of nine times the share value.

That amount is a substantial reduction in the verdict. The cases related to Garlock and Anchor are completely different than that related to John Crane. The releases signed by Richard Gallagher with Anchor and Garlock state that a dollar for dollar reduction be credited to John Crane for the consideration by Garlock and Anchor, thus creating ²⁰⁶ ... pro tanto releases. By purchasing pro tanto releases and having a jury finding them liable on a cross-claim, Garlock and Anchor clearly in this court’s mind share the verdict.

The credit John Crane receives by Garlock and Anchor is only a dollar for dollar reduction off the verdict amount. The court finds the total amount of damages to Richard Gallagher and his family has been determined by the finder of facts in the case, that is, the jury. In this case that number is 12. John Crane, Inc. and the 11 cross-defendants who Crane requested be placed on the verdict are all joint tort-feasors.

Based on that, the court finds the appropriate number is 12 as the plaintiffs contend and not 10 as John Crane has contended. I’m moved by the argument by the plaintiff about the equity of this. I find it striking that we can proceed through trial to present this case on 12 joint tort-feasors both in verdict sheets and closing argument and then come back here and request that it be instead of 12, 10, and this court finds that it is not only fundamentally unfair, but violative of the express language of 2-506(a). As we read the court’s ruling, although it paid lip service to the “express language” of Rule 2-506, it was really concerned that Crane had engaged in gamesmanship to lessen plaintiffs’ award.

We, however, cannot reconcile the court’s conclusion with other cases interpreting the rule. Indeed, just a few months before the parties filed their briefs in this case, we issued Milburn v. Milburn, 142 Md.App. 518 , 790 A.2d 744 (2002), in which we held that minor children were not “parties” to a divorce action, and therefore, they could not challenge their parents’ stipulated dismissal of the action under Rule 2-506(a). The circuit court in Milbum had rejected the stipulated dismissal, which sprang from the parents’ reconciliation, because it did “not believe it to be in the children’s best interests.” Id. at 522 , 790 A.2d 744 . ²⁰⁷ We noted that Rule 2-506 was “clear and unambiguous.” Id. at 533 , 790 A.2d 744 . We further explained: The term “party” is not defined in the Maryland Rules; however, those persons who are entered on the record as plaintiff or defendant are generally considered the parties.

Any other persons who may be affected by the outcome of the cause of action, either indirectly or consequently, although interested persons, will not be considered parties. Id. (citations omitted). Thus, although the minor children had an important stake in the course of their parents’ divorce proceeding, that interest alone did not elevate them to the status of “party.” Also noteworthy is Murphy v. Board of County Commissioners, 13 Md.App. 497 , 284 A.2d 261 (1971), an automobile tort case, in which the defendant filed a cross-claim, only to seek dismissal of the claim at the close of all the evidence, but before instruction of the jury and deliberation.

Plaintiffs counsel objected to the dismissal because “he deemed it wise as a matter of strategy that [the cross-claim] stay in.” Id. at 507 , 284 A.2d 261 . The trial court approved the dismissal by written order, and we affirmed. Although the dismissal in Murphy was effectuated by a court order, not a stipulated dismissal, what we said then rings true in this case: “We know of no principle or rale that a plaintiff has any rights arising from cross-claims among defendants.” Id. at 508 , 284 A.2d 261 ; see also Kenrose Mfg. Co. v. Whitaker Co., 53 F.R.D. 491, 493 (W.D.Va.1971) (granting court order for dismissal of third-party claim, given third-party plaintiff and third-party defendant’s desire to dismiss claim, and despite direct plaintiffs objection to the dismissal), aff'd, 512 F.2d 890 (4th Cir.1972).

It is important to remember that cross-claims are not mandatory; we allow them to be appended to the primary case for the sake of efficiency, but they just as well may be pursued in a second trial. They are tied in time to the primary case, but retain an