Myers v. Celotex Corp.

BLOOM, Judge. At the conclusion of the first phase of a trifurcated asbestos trial in the Circuit Court for Baltimore County, the jury found that none of the plaintiffs’ decedents had contracted an asbestos-related disease. Accordingly, the trial court ordered the entry of judgment in favor of appellees, Fibreboard Corporation and The Celotex Corporation, the only defendants that remained in the case through the first phase. 1 In this appeal from that judgment, appellants, the surviving spouses and personal representatives of the estates of Charles Poore, Milton Brush, Vernon A. Cullum, James Fulton, Edwin Nelson, Arthur Homer, and Joseph Maresh, present the following issues for our consideration: 1. Whether the trial court abused its discretion in ordering that the trial be trifurcated. 2.

Whether the trial court erred in communicating with members of the jury in the absence of counsel for the parties. 3. Whether the trial court employed an improper standard in excluding the opinion testimony of appellants’ medical expert witness. 4. Whether appellants were denied due process of law. We are not persuaded that the trial court abused its discretion in trifurcating the trial, but we conclude that the court unduly restricted appellants’ ability to present evidence during the first phase regarding the decedents’ exposure to products containing asbestos.

Further, we agree with appellants that the trial court employed an improper standard in excluding the opinion testimony of their medical ⁴⁴⁶ expert. Accordingly, we shall reverse the judgment on those grounds and remand the case for a new trial. We need not and shall not address appellant’s remaining contentions. Facts Appellants, surviving spouses and personal representatives of the estates of workmen who died of cancer allegedly caused by extensive exposure to asbestos, brought actions in the Circuit Court for Baltimore County against numerous manufacturers, producers, distributors, and suppliers of various products containing asbestos.

Decedents Fulton and Nelson, plumbers who allegedly worked for many years with asbestos pipe insulation material, died of lung cancer. Decedents Poore, Brush, and Cullum, iron-workers who allegedly worked for many years in enclosed areas in close proximity to plumbers using asbestos insulation material, also died of lung cancer. Decedents Homer and Maresh, operators of heavy construction equipment, such as cranes and loaders, who worked for many years in areas in which asbestos products were used, died of colon cancer. 2 The plaintiffs were originally divided into groups, classified according to the decedents’ occupations, and initially each group was scheduled for a separate trial. A jury pool was assembled, and the potential jurors were asked, inter alia, whether they would be able to serve for a four week period, since that was the average length of time for similar cases previously tried.

Those potential jurors who could not serve for four weeks were automatically excluded from the pool. After the jury pool had been selected, but before any jury had been impaneled, the court, on 2 May 1989, ordered that the three groups of cases be consolidated for ⁴⁴⁷ trial before a single judge and jury. The jurors, however, were not informed that the previous estimate of a four week trial had been based upon the assumption that the cases would be tried separately. The jury selection was completed and the jury was sworn on 3 May 1989.

Presentation of evidence began on 9 May 1989. On 15 May 1989, while the trial was underway, the court ordered a bifurcation of the trial, limiting the first stage to the issues of whether appellants’ decedents had developed an asbestos-related disease and, if so, whether the disease resulted from exposure to the defendants’ products. The proposed second stage of the trial would involve the issues of whether the individual manufacturers were negligent and whether their products were unreasonably dangerous. Additionally, the court informed the jury that the trial would run longer than originally anticipated.

The next day, the court informed the parties that four jurors and one alternate juror had requested that they be excused from the jury after the end of May. The court noted on the record that it had received messages from those jurors and had interviewed them privately to determine the basis for their requests. The court also announced that, in order to shorten the trial and thus avoid inconvenience or hardship to the jury, the trial would be trifurcated. The first phase was then limited to all medical issues i.e., whether appellants’ decedents had contracted an asbestos-related disease, and compensatory damages.

The second phase, before a different jury, would involve the issue of product identification; and the third phase would involve state of the art testimony and other defenses. If necessary, a fourth phase would be added to resolve the issue of punitive damages. The jurors were also informed that their service would end by the third week of June, 1989. During the final week of the first phase of the trial, the court was informed that one of the jurors would be unable to serve beyond 23 June 1989.

Consequently, the court excused that juror, and the final alternate was seated. On 23 June 1989, the jury retired for deliberations and, on 26 ⁴⁴⁸ June, returned a verdict for the defense, having determined that none of appellants’ decedents had contracted an asbestos-related disease, thereby rendering moot the remaining phases of the case. I Appellants contend that the trial court abused its discretion in ordering the trifurcation of the trial. Specifically, they assert that the trifurcation necessitated the presentation of the same product identification witnesses in both the first and second phases of the trial, before different juries, resulting not only in inconvenience to them, but also placing upon them a double burden of proof by having to present the same witnesses before two juries.

Further, appellants assert that the court erred in ruling that the witnesses who were presented during the first phase of the trial to testify concerning the presence, at various work sites, of products containing asbestos, could only so testify if they had personal knowledge of the asbestos content of those products. We perceive no error in the court’s decision to separate the issues for trial, but we hold that the court erred in restricting appellants’ “exposure” testimony. A. Md.Rule 2-503(b) provides: In furtherance of convenience or to avoid prejudice, the court, on motion or on its own initiative, may order a separate trial of any claim, counterclaim, cross-claim, or third-party claim, or of any separate issue, or of any number of claims, counterclaims, cross-claims, third-party claims, or issues. In Newell v. Richards, 83 Md.App. 371, 387 , 574 A.2d 370 , cert. granted, 321 Md. 449 , 583 A.2d 249 (1990), we observed, “The decision to bifurcate a trial is within the discretion of a trial judge.

Such a decision is subject to the abuse of discretion standard of review.” See also, McGarr v. Boy Scouts of America, 74 Md.App. 127, 142 , 536 A.2d ⁴⁴⁹ 728, cert. denied, 313 Md. 7 , 542 A.2d 844 (1988). The decision to “trifurcate” a trial, of course, involves the same exercise of judicial discretion. Thus, in determining whether the trial court abused its discretion in trifurcating the case sub judice, we must first determine whether the court’s decision served the purpose of Rule 2-503(b) and whether appellants suffered any unfair prejudice as a result of that decision. In arguing that the trifurcation of the trial did not serve the purpose of convenience, appellants assert that the separation of issues required that their product identification witnesses present similar testimony in the first and second phases of the trial.

When deciding whether to separate issues for trial, however, the court must weigh the inconvenience suffered by a party against the convenience to the court, the jury, and the remaining parties, resulting from the separation of issues. The case sub judice illustrates well the convenience and judicial efficiency that may result from the trifurcation of a complex case. The jury’s finding that none of appellants’ decedents had contracted an asbestos-related disease eliminated the need for any presentation of evidence regarding the remaining issues involved in the case. We conclude, therefore, that the court’s decision to trifurcate the case unquestionably served the purpose of Rule 2-503(b).

Appellants argue vociferously that the decision to trifurcate placed upon them the double burden of proving the same product identification issues, by the same witnesses, in the first and second phases of the trial, and that having to prove the same issues to two juries is unfairly prejudicial. That argument is totally illogical. Dividing the cases into separate trial phases may very well require plaintiffs to produce some of the same evidence through the same witnesses in more than one phase, but since the ultimate issues to be decided at each phase are different there can be no double burden of proving the same issues at more than one phase. In the case sub judice, there were no “product identification” issues to be proved at the first ⁴⁵⁰ phase.

The jury in Phase I had to decide whether the decedents had contracted an asbestos-related disease, which required proof of exposure to asbestos. That jury was not to decide what product was a cause of the disease, which was an issue that would have been decided by a different jury had the case reached Phase II. Beyond doubt, the bifurcation and the trifurcation of the trial while it was in progress presented appellants with some difficulties. When counsel have planned to present a case in what to them is a logical sequence designed to maximize its strong points, and have carefully worked out the logistics of scheduling key witnesses in accordance with such plans, an unexpected splintering of the case into separate trial fragments is unquestionably disconcerting and disruptive.

On the other hand, the consolidation of several asbestos cases into one trial may well have created certain disadvantages for the defendants. The trial judge is in a far better position than an appellate court to determine whether the decisions to consolidate several cases and then sever issues for trial so tilts the playing field that one side or the other is denied a fair trial. Taking into consideration the sheer volume of asbestos cases, which makes consolidation of cases and severance of issues for trial a practical necessity in the handling of such cases, we are not persuaded that there was any abuse of discretion in this instance. B. Combined with appellants’ argument that the court erred in trifurcating the trial are contentions that the court erred in excluding certain evidence on the theory that it belonged in a subsequent phase of the trial, not in Phase I.

(1) With respect to the issue of damages, appellants contend that the court improperly denied them an opportunity to establish the “unconscionable conduct” of the defendants. We disagree. Evidence that a particular defendant ⁴⁵¹ had been guilty of unconscionable conduct in knowingly putting an extremely hazardous product into the stream of commerce was not relevant or material to any issue in Phase I of the trial. Obviously, it would have no bearing on the issue of whether any of the deceased workmen had contracted an asbestos-related disease.

It would be relevant to an award of damages, but to punitive damages only and not to compensatory damages. See Exxon Corp. v. Yarema, 69 Md.App. 124, 137 , 516 A.2d 990 (1986), cert. denied, 309 Md. 47 , 522 A.2d 392 (1987). (2) Appellants’ second assertion of error in the exclusion of evidence as a result of trifurcation relates to the refusal of the court to permit witnesses to identify by brand name the products to which the deceased workmen had been exposed. Appellants have not referred us to any specific ruling by the trial court to that effect, and our examination of the record (which was not confined to the two volumes of record extract but included over 40 volumes of trial transcript) failed to disclose such a ruling per se.

It is apparent from the record, nevertheless, that the court did restrict the testimony of witnesses for appellants to prohibit any mention of products by brand name, perhaps by a ruling off the record or in camera. At various times during the trial, counsel for appellants protested that the prohibition against evidence of brand names of products in Phase I of the trial was preventing them from proving the extent of the exposure of the decedents to asbestos, which was essential to their cases. Indeed, at one point during the trial, appellants suggested that their problem could be solved by a jury instruction to the effect that if the jury found one of the asbestos disease processes referred to by appellants’ medical experts, it could take as granted that there was sufficient exposure to asbestos to have caused the disease. The court rejected that suggestion because unless there was some testimony about the decedents’ exposure to asbestos, ⁴⁵² “without reference to specific product identification," the jury “will not know whether or not there was asbestos exposure which caused the disease process to which you made reference.” (Emphasis added.) Later in the trial, the court instructed the jury, with respect to testimony from one of the plaintiffs’ witnesses: —you may have noticed that there was not any reference to any specific product or company name given by that witness during any of his testimony.

That is being done on purpose and it’s through my instruction that he’s not referring to any specific product, since product identification is not one of the issues that will be submitted to you for determination in the part of the case that you as jurors are going to deliberate and judge about. [3] The full effect of the limitation on appellants’ cases was not immediately apparent to their counsel. It was not until later, when witnesses called to testify about the dust-producing materials being used by workmen in the places in which the decedents worked from time to time were not permitted to mention the word “asbestos” unless they had personal knowledge that the materials in question actually contained asbestos, that recognition of the problem surfaced. Accordingly, at a later stage in the trial, counsel for appellants attempted to recall two witnesses who could testify to the trade names of the dust-producing materials at two principal job sites — Sinai Hospital and a Sparrows Point shipyard — at which decedents had worked for substantial periods of time. Appellants were then prepared to prove through other evidence, admissions in answers to interrogatories, that those materials contained asbestos.

The court denied appellants’ requests to recall the witnesses for that purpose “at this phase of the trial.” ⁴⁵³ Concluding that the “product identification” evidence sought to be introduced by appellants was relevant, material, and of great importance to appellants’ cases, we hold that the court erred in excluding it on the ground that such evidence belonged only in Phase II of the trifurcated trial proceedings. We explain. In order to recover, the plaintiffs had to prove to the satisfaction of the jury that the deceased workmen had contracted asbestos-related diseases as a result of substantial exposure to asbestos products made or put into the stream of commerce by the defendants. Plaintiffs/appellants presented medical expert testimony to the effect that each of the deceased workmen died of cancer that was caused by asbestos.

That opinion testimony was largely dependent on the experts’ assumptions (based on information furnished to them) that the decedents had been employed in occupations that involved substantial exposure to asbestos, since the likelihood of contracting an asbestos-related disease is dependent upon and in proportion to the amount of exposure to asbestos. Proof of substantial exposure of the decedents to asbestos was, of necessity, a step-by-step process. Witnesses placed decedents at specific jobsites, either working directly with or in close proximity to those working directly with material that produced considerable quantities of dust which permeated