Porter Hayden Co. v. Wyche

THIEME, Judge. This is an appeal from a jury verdict in favor of appellees, George Wyche, Jr., and his wife Joan, in the Circuit Court for Baltimore City. The Wyches sued several defendants, including the appellant, Porter Hayden Company, alleging that Mr. Wyche suffered from asbestosis and lung cancer, as a result of occupational exposure to asbestos-containing products, for which the defendants were allegedly responsible. 1 When the Wyches received a jury verdict of $3,515,431.70, the court declined to apply Maryland’s statutory cap on noneconomic damages in personal injury and wrongful death actions. See Md. Ann.Code (1974, 1995 Repl.Vol., 1998 Supp.), § 11-108, ³⁸⁵ Cts. & Jud.

Proc. Article. Porter Hayden timely noted its appeal and presents us with the following questions: 1. Did the trial court err when it ruled as a matter of law that the statutory cap on noneconomic damages does not apply where the plaintiffs produced scant mixed evidence about the inapplicability of the cap and the defendant produced none? 2.

Did the trial court err when it allowed the jury to award damages based on alleged risk of recurrence of a surgically removed cancer and alleged fear of a cancer recurrence where the plaintiffs did not produce evidence that showed that a recurrence was probable and evidence of physical injury caused by emotional distress? 3. Did the trial court err when it granted GAF Corporation’s motion for judgment based on the plaintiffs insufficient exposure to GAF’s products? We answer “yes” to the first question and explain below. As to the second and third questions, Porter Hayden told the Court in oral argument that it would waive these issues in the event that the ruling on noneconomic damages was favorable.

Because we have determined that the trial court did, in fact, err on noneconomic damages, we forego any analysis of these issues. Facts George Wyche, Jr., worked at the Bethlehem Steel Sparrows Point steel plant from 1951 to 1993. He first worked as a laborer in the Pipe Mill for approximately twelve years, where his primary job was to sweep up the dirt and dust that accumulated at the work site. Mr. Wyche testified that during this period he frequently worked in the vicinity of pipe coverers applying asbestos pipe covering and block insulation.

He testified that these operations generated dust, and that, as part of his job, he swept up and disposed of this dust. In approximately 1963, he moved to the 56-inch Hot Strip Mill, where he worked for about a year. His duties included the frequent cleaning of dust from ³⁸⁶ industrial furnaces. From 1964 until his retirement in 1998, Mr. Wyche worked in various areas of the Rod and Wire Mill, first as a “crane follower” and eventually as a crane operator.

These jobs also exposed him to asbestos dust, as he labored often in the vicinity of workers cutting and applying pipe covering material. Mr. Wyche retired in March 1993 at the age of 62. In September 1993, the attorneys for his asbestosis claim referred him for an examination with Dr. Steven Zimmet, a pulmonologist. The chest x-ray taken at that visit revealed a “small density or a spot” on his left lung.

Dr. Zimmet also noted on the x-rays what he described as interstitial markings reflecting asbestosis. In November 1993, Mr. Wyche underwent an operation in which the lower lobe of his left lung was resected, allowing the doctors to successfully remove the tumor, which was approximately one centimeter in diameter. Testing revealed the tumor to be an adenocarcinoma, a type of lung cancer. Testimony showed that cancers like Mr. Wyche’s adenocarcinoma generally exist for five to ten years before they are diagnosed.

Prior to instructing the jury, the court heard motions for judgment on whether the statutory cap applied to the Wyches’ claims. Porter Hayden argued that the cap should apply as a matter of law, or, in the alternative, that the jury must be allowed to decide whether the cause of action arose prior to the effective date of the cap, July 1, 1986. Conversely, Mr. and Mrs. Wyche moved for judgment, arguing that the cap did not apply, because Porter Hayden failed to prove that it should. The trial court granted their motion, ruling as a matter of law that the cap did not apply.

On May 28, 1997, the jury returned special verdicts in favor of the Wyches, awarding a total of $3,515,431.70. Of this sum, $15,431.70 represented economic damages. The jury awarded Mr. Wyche $2,000,000.00 in noneconomic damages and awarded $1,500,000.00 to the couple for loss of consortium. The trial court denied Porter Hayden’s post-trial motions on the question presented in this appeal.

After other post-trial proceed ³⁸⁷ ings pertaining to contribution, the court accounted for the settlements of joint tortfeasors and entered judgment against Porter Hayden for a total of $493,205.93. Discussion The trial court erred when it declined as a matter of law to apply Maryland’s statutory cap on noneconomic damages. Simply stated, the Wyches failed to bear their burden of proof that Mr. Wyche’s lung cancer existed before the effective date of the cap, and the meager evidence they adduced could just as easily have shown that the cancer originated after that date. The court below thus committed reversible error when it found that the opinion evidence presented would bolster its finding that the cap did not apply as a matter of law.

Even a sympathetic plaintiff cannot doff his burden of proof or override the will of the legislature. For the trial court to have ruled as a matter of law that the statutory cap did not apply, it needed evidence showing that the genesis of Mr. Wyche’s lung cancer pre-dated July 1,1986, which is the date that the statutory cap became effective. 2 In an earlier case involving asbestos-induced cancer, this Court determined that the cause of action for cancer “arises” when malignancy first comes into existence. Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 160 , 692 A.2d 5,18 (1997), vacated on other grounds sub nom. Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998). 3 Since the filing of the ³⁸⁸ present appeal, this Court has further identified the origin of such cancer as the time when “the carcinogen cause[s] cellular changes which [lead] to an irreversible, fatal, or disabling disease rather than the point in time when the plaintiff inhaled the asbestos, or when the plaintiff was diagnosed or manifested symptoms of such disease.” Owens-Coming v. Walatka, 125 Md.App. 313, 319 , 725 A.2d 579, 581 (1999) (citing Owens Coming v. Bauman, 125 Md.App. 454, 465-90 , 726 A.2d 745, 751-64 (1999)).

Mr. and Mrs. Wyche bore the burden of showing that the cancer arose before the cap applied. In Walatka and Bau-man, this Court clarified that the cap applies presumptively, and plaintiffs bear the burden of proof if they contest its application. If there exists a genuine dispute of fact, that dispute must go to the jury, at the request of either party. See Owens-Coming v. Walatka, 125 Md.App. at 326-31, 725 A.2d at 585-588 (holding that plaintiffs bear the burden of proving inapplicability of the cap); Owens Coming v. Bau-man, 125 Md.App. at 509-10, 726 A.2d at 772 (holding that, in cases where evidence presents a genuine dispute of fact regarding applicability of the cap, this issue must be resolved by a jury if so requested by either party).

Against the foregoing background, the circuit court’s error becomes clear. First, Walatka teaches that the court below mislaid the burden of production on Porter Hayden. When Porter Hayden failed to introduce affirmative evidence that Mr. Wyche’s cancer came into existence after July 1, 1986, the court found that the thread of evidence adduced by the Wyches showed as a matter of law that the cancer pre-dated the cut-off date. Second, although the parties were clearly in dispute over whether the cap should apply, the actual evidence adduced by the Wyches proved nothing and is insufficient as a matter of law to create a jury issue. 4 Because the proper ³⁸⁹ placement of the burden of proof is a settled issue, this opinion will address in more detail the weight of the evidence actually adduced by the Wyches.

Although the Wyches did present some evidence regarding the period during which Mr. Wyche’s lung cancer arose, the admitted evidence alone was insufficient to satisfy their burden of production. Under Walatka , the plaintiff must “produce evidence that is probative with respect to when the plaintiffs disease came into existence....” 125 Md. at 333, 93 A. 928 . Because neither plaintiffs nor defendants introduced evidence of when Walatka’s lung cancer came into existence, this Court found that there existed “no testimony that could support an inference that Mr. Walatka’s mesothelioma came into existence prior to the effective date of the statutory cap.” Id. at 334, 93 A. 928 . Accordingly, we remanded the case with instructions for the lower court to apply the cap.