MCIC, INC. v. Zenobia

JAMES S. GETTY, Judge. This products liability case consolidated for trial the claims of Louis L. Dickerson and William L. Zenobia, who allege that they contracted asbestosis as a result of their exposure to products containing asbestos which were either manufactured or supplied by the named defendants herein. At trial in the Circuit Court for Baltimore City (Hubbard, J.), the case proceeded before a jury on the theory of strict liability. The defendants in Dickerson’s case are Owens-Illinois, Inc., Eagle-Picher, and Celotex Corp., all manufacturers, and MCIC, Inc., and Porter Hayden Company, both suppliers of asbestos products.

The defendants in Zenobia’s case include Owens-Illinois, MCIC, Porter Hayden and an additional supplier, Anchor Packing Company. ⁴⁶² Other named defendants settled with both plaintiffs at different stages of the trial and became the target of cross-claims for contribution by the above-named original defendants. Included in the settling category are Raymark Industries, Inc., which settled with both Dickerson and Zenobia before trial, and the following defendants, who settled during trial: Armstrong World Industries, GAP Corporation, AC & S, Inc., and Owens-Corning Fiberglass settled with Dickerson; Owens Corning was stricken from the Zenobia casé and the above-named companies remaining also settled with Zenobia. Trial began on November 21, 1988, and culminated in a jury verdict on January 19, 1989, awarding Dickerson compensatory damages against all five defendants in the amount of $1,300,000.00 and further allotted Zenobia the sum of $1,200,000.00, assessed against the four defendants in his case. The jury also decided that punitive damages were warranted against Owens-Illinois, Porter Hayden and Celotex.

At a subsequent hearing, punitive damages were awarded Dickerson against Owens-Illinois in the amount of $235,-000.00; against Porter Hayden in the amount of $2,500.00; and against Celotex in the amount of $372,000.00. In Zenobia’s case he was accorded the identical amounts charged to Owens-Illinois and to Porter Hayden. All post trial motions were denied by the trial court, final judgments were entered on April 12, 1989. Thereafter, the trial court granted all defendants’ cross-claims for contribution against the five settling defendants in the Dickerson case and entered the same order against the four defendants who settled with Zenobia.

The compensatory judgments, therefore, were reduced by half by operation of the settlement releases and pursuant to the Uniform Contribution Among Tort-Feasors Act, Md.Ann. Code art. 50, § 16-20. Additionally, the trial court granted Anchor’s cross-claim for indemnification against Raymark and dismissed Anchor from the case based upon Zenobia’s release of Raymark. ⁴⁶³ The compensatory and punitive damages judgments have been appealed by Owens-Illinois, MCIC, Porter Hayden, Eagle-Picher and Anchor. Dickerson and Zenobia have appealed from the cross-claim judgments entered by the trial court. At the time of the trial, Dickerson was 57 years old and was employed by the Baltimore County Board of Education as a school custodian.

Zenobia was retired at age 65 after working 32 years for the Carling Brewery Company in Baltimore. Dickerson alleged that he was exposed to asbestos while working as a laborer at the Bethlehem Steel Sparrows Point Shipyard in Baltimore from 1953-1955 and from 1958-1963. He also claimed that he was exposed to asbestos from 1955 to 1958 when he worked at the hot strip mill at Sparrows Point. He had no exposure after 1963.

Zenobia alleged that he was exposed to asbestos during his employment as a painter for four months in 1948 at the Bethlehem Steel Sparrows Point Shipyard; while working for 18 months at the Maryland Shipbuilding and Drydock Company shipyard between 1951 and 1952; and while employed as a clean-up man at the Carling Brewery Company for three months in 1968. He had no exposure after 1968. Both men alleged that they contracted asbestosis as a result of their exposure to asbestos fibers during the periods listed herein. Neither man claimed lost wages or prior medical expenses in connection with their physical condition.

Additional facts will be discussed as they relate to each case. The five appellants, MCIC, Owens-Illinois, Porter Hayden, Eagle-Picher, and Anchor Packing, raise the following issues: 1. Punitive damages were erroneously assessed against Owens-Illinois and Porter Hayden. 2. Deposition testimony was erroneously introduced against all five defendants under Md.Rule 2-419. ⁴⁶⁴ 3.

Porter Hayden’s insulating and contracting activities were not a substantial factor in causing Zenobia’s injuries. 4. The trial court erred in instructing the jury that Owens-Illinois had a continuing duty to warn after the time the company no longer manufactured, distributed, or sold asbestos-containing or other insulation products. 5. Owens-Illinois’s contracting activities were not a substantial factor in Zenobia’s injuries. 6. MCIC’s contracting activities were not a substantial factor in any injury sustained by either Dickerson or Zenobia. 7.

Anchor Packing was entitled to a judgment when Zenobia failed to prove that Anchor products contained asbestos or that he was regularly exposed to respirable asbestos dust from an Anchor product. 8. The trial court erred in refusing a new trial or remittitur on a $1,200,000.00 verdict when the plaintiff, Zenobia, gave a Swigert release to one defendant for $860.00 and offered to settle with all defendants for a total of $165,000.00. 9. The trial court erred by admitting state-of-the-art testimony as it existed after 1953, the last possible exposure of Zenobia to an Anchor product. 10. The trial court erred in instructing the jury that a manufacturer’s conduct is not relevant in a “failure to warn” case based upon strict liability. 11.

The trial court erred when it used the term “knew or could have known” rather than “knew or should have known” in describing a seller’s duty to warn involving a dangerous product. 12. The trial court erred in instructing the jury that damages could be awarded not only if pleural plaques harmed the plaintiff, Dickerson, but if they were in themselves harmful. ⁴⁶⁵ The issues raised by the cross-appellants, Dickerson and Zenobia, are the following: 13. Whether it was reversible error for the trial court to order contribution by the settling defendants. 14. Whether Raymark, an absent debtor in bankruptcy, may be adjudicated a tortfeasor, indemnitor or contributor without leave of the bankruptcy court. 15.

Whether the trial court erred in granting the cross-claim by Anchor for indemnity against Raymark and striking the verdict of the jury against Anchor. Preliminarily, we note that after the appeals in this case had been filed Celotex and Eagle-Picher filed for protection under Chapter 11 of the United States Bankruptcy Code. We shall, therefore, stay the proceedings as to each of those defendants, but allow the proceedings to proceed as to the remaining defendants as well as the cross-claims raised, excepting those involving the two bankrupt defendants. Title 11 U.S.C. § 362 (a) provides that the filing of a petition under Chapter 11 of the Bankruptcy Act operates as a stay of judicial proceedings pending against the debtor when the petition was filed.

See also Collier v. Eagle-Picher, et al., 86 Md.App. 38 , 585 A.2d 256 (1991) (opinion by Wilner, C.J.). Issue No. 1 Punitive Damages Against Owens-Illinois and Porter Hayden Both Dickerson and Zenobia received punitive damage awards of $235,000.00 against Owens-Illinois and $2,500.00 against Porter Hayden. In our review of the trial court’s denial of the motions for judgment and judgment n.o.v., we must resolve all conflicts in the evidence and make all reasonable inferences in favor of the party opposing the motion. Wesko v. G.E.M., Inc., 272 Md. 192, 200 , 321 A.2d 529 (1974).

This Court, in Eagle-Picher v. Balbos, 84 Md.App. 10 , 578 A.2d 228 (1990) (Alpert, J.), set forth the necessary showing for recovery of punitive damages in Maryland’s ⁴⁶⁶ asbestos personal injury cases. We indicated that we would require direct evidence that a particular defendant had substantial knowledge that the product(s) at issue was, or was likely to become, dangerous, and a gross indifference to the danger. Id. at 73 , 578 A.2d 228 . Elucidating, we said that we would require a showing that the defendant conducted itself “in an extraordinary manner characterized by a wanton and reckless disregard for the rights of others.” Id., citing Exxon Corp. v. Yarema, 69 Md.App. 124 , 516 A.2d 990 (1986); R. Gilbert, P. Gilbert, and R. Gilbert, Maryland Tort Law Handbook § 25.3.1 (1986).

In Balbos, supra, this Court reversed the judgments for punitive damages because we did not find the extraordinary conduct which warrants an award of punitive damages in Maryland. We distinguished the Balbos case from cases where punitive damages were upheld. These latter cases involved instances where a manufacturer of asbestos-containing products withheld from its employees and from the public a significant amount of long-held information that asbestos exposure posed a risk to its asbestos workers; where a defendant had knowledge that its asbestos-containing product had already caused disease in other employees; where a manufacturer knew of the health risks associated with asbestos at the time it sold its product, that the product did not bond properly, and that it might emit asbestos fibers and it developed, marketed, and sold a comparable asbestos-free product in response to concerns and' publicity about the health risks associated with asbestos; and, finally, where a manufacturer rejected the advice of experts to place a warning label on its product because of its concern with maintaining its profits. In the present case, there was evidence that Owens-Illinois entered into an agreement with the Saranac Laboratory (Saranac) to conduct animal studies of its asbestos-containing Kaylo product.

Saranac informed the medical director of Owens-Illinois that the animals used in the study developed asbestosis and emphysema, and that this finding would correlate with findings in human beings. ⁴⁶⁷ There was also evidence that Owens-Illinois’s industrial hygienist was aware of the conclusion of the Saranac study, and that he was in close contact with Owens-Illinois’s medical director on asbestos-related matters. The evidence also showed that sometime in 1956 Saranac informed the medical director of Owens-Illinois that the Kaylo product contained a hazardous component and that the product should be labeled to reflect the hazard posed by the product. The indication to Owens-Illinois was that Kaylo would be hazardous to anyone who breathed the dust generated from the product, including those outside the manufacturing plants where the dust used in the studies was generated and obtained. The evidence showed further that, although Owens-Illinois knew of the potential hazard posed by the manufacture and use of its product, it did not issue warnings or otherwise eliminate possible exposure to the asbestos component of its product.

The evidence from the perspective of Owens-Illinois revealed that it did not place a warning label on its product because no one at Saranac recommended that it do so and because it believed its employees were working in a safe environment. Owens-Illinois’s industrial hygienist testified in a deposition admitted into evidence that the levels of exposure to the animals were extremely high and did not compare to the levels of exposure actually experienced at its manufacturing plants. He further testified that, based on dust studies, Owens-Illinois employees at the Kaylo plants were not exposed above the then-accepted level of exposure to asbestos, 5 million parts per cubic foot of air. Finally, Owens-Illinois’s industrial hygienist testified that Owens-Illinois did not warn others outside the plants (including bystanders, like plaintiffs in this case) of the dangers of exposure to Kaylo because it did not feel there was a danger to its own employees who were likely to be exposed to higher levels than end-users of the product. ⁴⁶⁸ Based on this evidence, 1 we conclude that Owens-Illinois was advised in 1956 that its asbestos-containing Kaylo product posed a hazard beyond its own employees and to those who used or might otherwise be exposed to the product and that, contrary to expert advice, it failed to place warnings on its product.

We believe this conduct falls within the realm contemplated by this Court in Balbos . The trial court did not err in submitting the issue to the jury. The evidence considered against Porter Hayden revealed that in 1956 an estimator of the company, who later became president, was aware that an insulator employed by Porter Hayden filed a worker’s compensation claim for an alleged asbestos-related disease. The individual did not convey the information about the worker’s compensation claim to any of his superiors outside the Newark, New Jersey, office of the company.

He was unaware that any other asbestos-related worker’s compensation claims had been filed against the company prior to 1960. In addition, he indicated that he did not become aware of the hazards of asbestos until the mid to late 1960’s. Another Porter Hayden employee, who worked for the company for 36 years and rose to the level of president, testified that Porter Hayden received annually from 50 to 100 workers’ compensation claims. The 1956 workers’ compensation claim was the only asbestos-related claim filed before 1970.

This employee did not personally become aware of the hazards associated with asbestos until the late 1960’s. We are unable to conclude that Porter Hayden acted with the substantial knowledge and gross indifference we re ⁴⁶⁹ quire in upholding an award of punitive damages in the asbestos litigation context. Its knowledge of one asbestos-related workers’ compensation claim in 1956 and a failure to warn as a result of that single incident is insufficient to generate a claim for punitive damages in light of our analysis in Balbos . Issue No. 2 Deposition Testimony Appellants Anchor, MCIC, and Porter Hayden contend that the deposition testimony of Dr. Thomas Mancuso was improperly admitted into evidence by the trial court.

Owens-Illinois makes the same claim as to Dr. Mancuso and raises the same objection to the depositions of Mr. John Humphrey, Mr. Louis Pechstein and Dr. Kenneth W. Smith. This case proceeded, as stated earlier, on strict liability, which focuses not on the defendants’ conduct, but on the product. Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976). For recovery in an action based upon strict liability, the plaintiff must establish (1) that the product was in a defective condition at the time that it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was the cause of the injuries, and (4) that the product was expected to and did reach the consumer without substantial change in its condition.

Phipps, supra, at 344 , 363 A.2d 955 , citing Restatement (Second) of Torts, § 402A (1965). The plaintiff in strict liability in tort cases need not prove any specific act of negligence. Notwithstanding the elements to be proved in strict liability actions, the trial court herein, over the objection of the plaintiffs seeking to preclude the state-of-the-art defense, ruled that the plaintiffs were required to produce state-of-the-art evidence in their prima facie case. 2 As a result, ⁴⁷⁰ negligence concepts were intermingled with strict liability considerations. The appellants herein, who supported the trial court’s ruling below, now contest the evidence flowing from the trial court’s ruling.

The trial court grouped Owens-Illinois and others as manufacturers, and Anchor, MCIC and Porter Hayden as suppliers. The deposition of Dr. Mancuso was admitted against all defendants and the depositions of Pechstein, Humphrey, Hazard, and Dr. Smith were admitted only against manufacturers. We note that, in addition to the deposition testimony, Dr. Gerrit Schepers, currently Chief of Cardiovascular Diseases at the Veterans’ Administration Hospital in Washington, D.C., testified to the state-of-the-art knowledge relating to asbestosis as it pertains to this case. He stated that as early as 1930 there were at least 50 medical articles published on asbestosis and that number increased to approximately 100 in 1940, to several hundred by 1950, and to 1,000 by 1960.

He stated that he informed Owens-Illinois’s medical director, Dr. Shook, and other officials of the company in 1955 of the hazards of Kaylo asbestosis and the necessity for warning labels on Kaylo because it contained hazardous components. The deposition of Willis Hazard disclosed that he was a physicist and industrial hygienist who worked for Owens-Illinois from 1934 to 1974. He was aware of the health problems associated with asbestos in 1946 before his employer began commercial production of Kaylo in 1948. Hazard admitted receiving Dr. Scheper’s report concerning the dangers posed by asbestos products in 1955, 3 and he stated that he discussed the various reports he received from the ⁴⁷¹ Saranac Laboratory study on Kaylo with Dr. Shook, medical director at Owens-Illinois.

The depositions of Dr. Smith, Mancuso, Pechstein, and Humphrey relate to what was knowable to those engaged in the asbestos industry prior to 1963. Their deposition testimony was considerably less probative than that of Dr. Scheper’s live testimony. The court instructed the jury that a manufacturer’s state-of-the-art knowledge includes what was knowable or scientifically discoverable in the scientific community, whereas a supplier is presumed to know that which is reasonably known and generally accepted by, and available to, others outside of the medical, scientific community. Thus, the jury was apprised of the various tiers of knowledge applicable to manufacturers and to suppliers, i.e., actual knowledge; constructive knowledge, reflecting what should have been known; and state-of-the-art knowledge, which is what was discoverable, or could have been known.

Appellants contend that the depositions violate Md. Rule 2-419(c) and that they were not present at the depositions sought to be admitted and no predecessor in interest was present who had a similar motive to cross-examine the deposed witness. We reject these arguments for several reasons. Md. Rule 2-419 deals with the use of depositions where the witness is not available to appear in person. Defendants did not raise the issue of plaintiffs’ failure to establish the unavailability of the witnesses at trial.

The issue is waived and may not be raised for the first time on appeal. Md. Rule 8-131; Bowen v. Md. National Bank, 36 Md.App. 26 , 373 A.2d 30 (1977). Hazard was properly found to be unavailable: he was a resident of Ohio; Mancuso was a resident of Pennsylvania. Eagle-Picher was present at the Hazard deposition and at the Mancuso deposition and Owens-Illinois was represented when Mancuso was deposed.

None of the remaining defendants were represented at the Mancuso questioning. We note that in Clay v. Johns Manville, 722 ⁴⁷² F.2d 1289 (6th Cir.1983), the depositions of Dr. Kenneth Smith were held to be admissible against Raybestos although that company was not present at the deposition. 4 The court reasoned that the defendants who were present had a similar motive to cross-examine Dr. Smith and the depositions, therefore, were admissible against Raybestos. A similar result was reached in Dartez v. Fibreboard Corp., et al, 765 F.2d 456 (1985). We think the presence of Eagle-Picher at both the Hazard and Mancuso hearings and the representation by Owens-Illinois at the Mancuso deposition forms an acceptable basis for admitting the depositions that have been questioned.

The trial court limited the application of the deposition testimony to the manufacturers and to their “knowability” of the hazards of asbestos. We perceive no error. This evidence, furthermore, was cumulative to that of Dr. Schepers and was, at most, harmless error. Issues No. 3, 5, 6, 7 Substantial Factor in Injuries Owens-Illinois, Porter Hayden, Anchor and MCIC allege that their activities were not a substantial factor in the injuries sustained by Zenobia.

MCIC makes the same allegation as to Dickerson. No. 6, MCIC — Dickerson At trial, Dickerson testified that he was employed at Bethlehem Steel Corporation’s Sparrows Point Shipyard from 1953 to 1955 and again from 1958 to 1963. He performed primarily custodial duties aboard ships. He performed the same sort of work at Bethlehem Steel’s hot strip mill from 1955 to 1958. ⁴⁷³ As to the above employment at Sparrows Point, Dickerson stated that he worked with asbestos workers who were employed by outside contractors.

He identified McCormick [MCIC] asbestos workers at the shipyard and hot strip mill by the presence of McCormick’s trucks and the workers he recognized to be associated with McCormick. Dickerson believed the asbestos workers were using asbestos pipe covering and block because “asbestos” was indicated on the boxes he saw delivered to the ships and mill by the McCormick trucks. Dickerson testified that while in the engine and fire rooms aboard the ships upon which he worked he was within about five feet of the pipe covers and that there was very little ventilation in the rooms. There were, however, blowers which stirred up the dust.

He came in actual physical contact with asbestos-containing debris when he picked or swept it up and placed it in trash receptacles. At the hot strip mill, Dickerson worked within eight to sixteen feet of the asbestos workers and, again, he came into physical contact with the debris as he cleaned it up and disposed of it. No. 6 MCIC, Porter Hayden, Owens-Illinois and Anchor Zenobia Zenobia testified at trial that he worked as a painter for Bethlehem Steel at the Sparrows Point Shipyard for four months between 1948 and 1949. He worked as a pipefitter at the Maryland Shipbuilding and Drydock Company from 1951 to 1953.

He was exposed to asbestos for approximately three months sometime between 1968 and 1970 while employed at the National Brewing Company in Baltimore. Like Dickerson, Zenobia testified that he worked exclusively aboard ship while employed at Sparrows Point. He saw asbestos workers working with asbestos-containing pipe covering and block material. He saw the names McCormick, Hayden, and Kaylo (the product manufactured ⁴⁷⁴ by Owens-Illinois) on the containers of pipe covering used by the insulators aboard ship.

The containers for the block material were marked “Kaylo.” Zenobia testified that he worked as a pipefitter only aboard ships while at Maryland Shipbuilding. While in the engine and boiler rooms he worked around pipe covers using asbestos pipe covering and block material on a daily basis. The boxes containing the asbestos pipe covering were marked with the name “McCormick” and on the block material he saw the word “Kaylo.” Also like Dickerson, Zenobia indicated that the outside contractors employing the asbestos workers included the McCormick and Porter Hayden companies. He was able to identify them because of the presence of McCormick and Porter Hayden trucks near the gangways of the ships aboard which he worked.

He was also able to identify them by the company names on the T-shirts worn by the employees. According to Zenobia, the trucks delivered the marked boxes to the ships, and the asbestos workers carried them aboard the ships. According to Zenobia’s testimony, he also handled asbestos gasket material supplied by Anchor while at Maryland Shipbuilding. He saw the letter “A” stamped on the rolls of the gasket material, used while he was fitting pipes, which emitted dust while he used the product.

While at the National Brewing Company, Zenobia worked around pipe covers while an addition was made to the facility. The pipe covers used McCormick and Kaylo materials. The asbestos workers were employed by Porter Hayden. He saw McCormick’s products at the site.

As to proximity, Zenobia came into physical contact with the asbestos-containing products when he swept up debris and threw it away. In Eagle-Picher v. Balbos, supra, we employed a two-step analysis in reviewing the trial court’s denial of a motion for judgment and judgment n.o.v. We considered whether there was sufficient evidence that the defendant’s ⁴⁷⁵ product was used at the site of the plaintiffs exposure, and whether the plaintiff worked within the vicinity of the asbestos workers using the product and, therefore, in the vicinity of the product itself. If both factors are established, one may reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the condition that is the subject of the complaint. The testimony of the plaintiffs herein was more than sufficient to defeat the defendants’ motions and the trial court did not err in denying the same.

Issue No. 4 Continuing Duty to Warn Owens-Illinois and Anchor each contend that the court committed reversible error when it instructed the jury that the defendants had a continuing duty to warn Zenobia of asbestos hazards after the date of his last exposure. Owens-Illinois argues that it left the insulation industry in 1958 and could not owe any duty to warn thereafter. Anchor makes the same argument using a 1953 target date, which was the time of Zenobia’s last exposure. The instruction given by the court said: The defendant’s duty to warn is a continuing one.

It does not end when or if the defendant stops manufacturing or selling asbestos. It does not stop when the plaintiff is no longer exposed to asbestos. In Balbos, supra, we cited with approval Lockwood v. AC & S, Inc., 109 Wash.2d 235 , 744 P.2d 605 (1987), on the precise issue raised by the appellants herein. In Lockwood the plaintiff was exposed to asbestos while working in the shipyards in Washington state from 1942 until his disability retirement in 1972.

In that year he ceased regular smoking, but occasionally smoked cigarettes thereafter. He was diagnosed as having asbestosis in 1979. One of the defendants in Lockwood , Raymark, argued that it had no duty to warn Lockwood of the dangers of ⁴⁷⁶ asbestos after he was no longer exposed to the product. The Supreme Court of Washington disagreed, stating: We believe that where a person’s susceptibility to the danger of a product continues after the person’s direct exposure to the product has ceased, the manufacturer still has a duty after exposure to exercise reasonable care to warn the person of known dangers, if the warning could help to prevent or lessen the harm.

Such a warning should be required to the extent practicable. Thus, it will depend on the circumstances if a warning to previous users of the product must be made by direct personal contact with such users. Alternative warning methods which may be reasonable in a given situation might include notices to physicians or advertisements. We adopted the reasoning in Lockwood and applied it in Balbos and applied it to manufacturers and suppliers, including Owens-Illinois, one of the defendants therein.

The appellants suggest that the continuing duty to warn instruction has the effect of making them insurers of their products indefinitely. We disagree. A careful reading of Lockwood makes clear that reasonable care means to warn a previously exposed employee of known dangers. It does not require, as Owens-Illinois suggests, that they continue in “the great expense of indefinitely continuing research and development in an area in which Owens-Illinois has not been competitive in 31 years.” Obviously, such a requirement would be unreasonable.

What the duty to warn does mean is that if a manufacturer or installer becomes aware of additional dangers to those previously exposed to asbestos products, presumably through updated state-of-the-art data or other reliable scientific tests, the manufacturer or installer must make a reasonable effort to communicate that information to exposed employees whether active or retired. The appellants can argue to the jury their departure from the insulating industry and a jury may decide that their failure to warn under the circumstances was reasonable. This does not mean, however, that they have no obligation ⁴⁷⁷ to warn if they become aware of potential harm to exposed workers. We conclude that the instruction given does not amount to reversible error in that neither Owens-Illinois nor Anchor ever gave any warning to anyone exposed, either currently or prospectively.

Issue No. 8 Anchor's Claim for New Trial or Remittitur Anchor claims that the compensatory award of $1,200,000.00 to Zenobia was excessive. In support of that assertion, Anchor highlights Zenobia’s release of Raymark Industries for $860.00 and a demand letter from Zenobia to all defendants one month before trial indicating his willingness to settle his case with the then remaining defendants for $165,000.00. Recognizing the infallibility of hindsight, we surmise that all of the defendants share Anchor’s consternation. The jury was instructed that the damages must reasonably compensate Zenobia and that it could not award speculative damages.

It was permitted to consider his physical and emotional condition before and after his asbestos-related disease and whether his condition was permanent or progressive. There was medical evidence from which the jury could properly conclude that Zenobia’s condition was permanent and progressive. Settlement offers may be made for diverse and unrelated reasons. They are excluded because they discourage settlement.

The trial court did not find the verdict to be excessive or one that shocked the court’s conscience. In Benequra v. Taylor, 312 Md. 609 , 541 A.2d 969 (1988), the Court of Appeals said: We know of no case where this Court has ever disturbed the exercise of the lower court’s discretion in denying a motion for new trial because of the inadequacy or excessiveness of damages. We decline to grant a new trial or to order a remittitur in the case sub judice. ⁴⁷⁸ Issue No. 9 State-of-the-art Testimony After 1953, Zenobia’s Last Exposure We have addressed and decided that the appellants had a continuing duty to warn beyond the date of last exposure. That holding is dispositive of this issue raised by Anchor.

Issues No. 10 and 11 Jury Instruction that a Manufacturer’s Conduct is not Relevant in a “Failure to Warn” case Based upon Strict Liability 5 Appellants’ argument on this issue is twofold, i.e., the court erred in instructing the jury that the manufacturer’s conduct is not relevant in a strict liability-failure to warn case, and the court erred in using the term “could have known” rather than the lesser burden “should have known” of the dangers connected with the user of asbestos products. Appellants cite the following portion of the court’s instructions: A strict liability case concerns the character of the product that is injected into the stream of commerce. It does not concern the defendant’s conduct. Negligence is not part of a strict liability claim, nor is the conduct of manufacturers.

The court did, however, clarify what was required in establishing appellants’ liability. It said: A product of this type is only defective because it did not contain a warning of dangers of which the seller knew or could have known. When we talk about could have known as to a manufacturer, we are talking about that knowledge that is knowable or scientifically discoverable ⁴⁷⁹ in the medical/scientific community. The first element then, as to what must be proved by the manufacturing plaintiff [sic], is that the product was in a defective condition at the time that it left the possession or control of the manufacturer, remembering that it is defective because it did not contain warning of dangers that the seller — excuse me — manufacturer knew or that was knowable or scientifically discoverable in the medical/scientific community____ I give you a distinction, ladies and gentlemen.

Remember that the manufacturer could have known what was knowable or scientifically discoverable in the medical/scientific community. As to the supplier, could have known is defined as reasonably known and generally accepted by and available to others, outside of the medical/scientific community. At a later point in the instructions, according to appellants, the court again indicated that a manufacturer’s conduct is not relevant when the court stated: You ought to know that a manufacturer or seller is or may be, I will say, strictly liable even though he exercised all possible care in the preparation and sale of his product. The plaintiff need not prove negligence or fault in order for the defendants to be held strictly liable.

Immediately following the above comment, however, the court reiterated the standard applicable to this case, stating: You remember that I told you that there is a different standard between the liability as to manufacturers and as to suppliers. Remember that I told you that standard concerned certain knowledge, that is what the manufacturer or supplier knew or could have known. Remember further that I told you that could have known is a different standard and distinguishable between the manufacturer or the supplier. A manufacturer could have known what is knowable or scientifically discoverable in the medical scientific community.

The supplier could have known what is reasonably known and generally ⁴⁸⁰ accepted by and available to others outside of the medical scientific community.... A manufacturer or seller is held to the knowledge and skill of an expert and is conclusively presumed to possess all of the knowledge that is available to or possessed by an expert. Remember again, there is a different expertise to manufacturers and to suppliers. We know that manufacturers are held to what they know or what they could have known.

We know, further, that could have known refers to what is knowable and to what is scientifically discoverable in the medical scientific community. The entire ten week trial focused upon what was known, or what was within the state-of-the-art knowledge, i.e., “knowable” by manufacturers and suppliers. Taken as a whole, the instructions fairly apprised the jury of the evidence required to sustain the claims advanced by Dickerson and Zenobia. Appellants’ second attack on the knowability issue centers upon the trial court’s use of the phrase “could have known” rather than “should have known.” According to appellants, “could have” connotes “within the realm of possibility.” Appellants visualize their burden under “could have” as suggesting that they hire every researcher in the country, around the clock, to study the effects of asbestos on bystanders from the first use of the product in the 1930’s forward.

They further suggest that they “could have” hired a genius who may have perceived the dangers before later scientific studies emerged. We point out, however, that the