Reiter v. ACandS, Inc.

RAYMOND G. THIEME, Jr., Judge (Retired, Specially Assigned). Appellants, individually and as the Personal Representatives of three deceased former employees 1 of Bethlehem Steel ⁶⁴⁷ Corporation’s Sparrows Point, Maryland facility, appeal from a decision of the Circuit Court for Baltimore City granting summary judgment in favor of appellees Eaton Corporation, successor in interest to Cutler-Hammer, Inc. (“Cutler-Hammer”), Pneumo Abex LLC (“Abex”), and Square D Company (“Square D”). The complaints alleged that William H. Johnson, William A. Reiter, and Harold R. Williams suffered from lung cancer as a result of occupational exposure to appellee’s asbestos-containing crane brakes. Appellants present the following question for our review: Did the trial court err in granting summary judgment and dismissing appellants’ asbestos injury claims as a matter of law on the issue of substantial factor causation where appellants presented evidence that asbestos-containing crane brakes of the appellees were present throughout the areas where appellants worked and that appellants worked in the vicinity of those crane brakes when the crane brakes emitted asbestos-containing dust to which appellants were exposed[?] For the reasons set forth below, we affirm the judgment of the circuit court.

PROCEEDINGS BELOW Multiple asbestos-related injury complaints were filed in the Circuit Court for Baltimore City against appellees in the instant case. The cases were consolidated into two groups for trial: Edward A. Adams, Sr. et al. v. ACandS, Inc., et al., Consolidated No. 24X05000342, and Donald Conyers, et al. v. ACandS, Inc., et al., Consolidated No. 24X05000346. The Adams Group included decedants William A. Reiter and Harold R. Williams, while the Conyers Group included decedant William H. Johnson. On April 11, 2006, following two days of motions hearings, the circuit court granted summary judgment against appel ⁶⁴⁸ lants and in favor of appellees Abex, Cutler-Hammer, and Square D. In so doing, the court stated: The Court is mindful of the case law which has been adverted to by all parties concerned, in particular the Balbos case, and would note that in Balbos, the Court of Appeals adopted what is known as the frequency, regularity, and proximity test to determine the legal sufficiency of evidence of substantial factor causation in asbestos personal injury cases.

And Balbos makes it clear that when the exposure of any given bystander, and in all instances, the plaintiffs in these cases are 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.... While each of the overhead cranes, without dispute, had multiple braking systems, these brakes were not located anywhere close to the average worker in these cavernous facilities; rather, the brakes were located dozens of feet off the ground and were in some instances five, maybe eight stories high in some locations. Taking into account the massive cavernous size of the facilities as well as the distance from laborers to the braking systems on the cranes, plaintiffs have ... failed to show that workers were sufficiently proximate to or in the vicinity of the crane brakes to be considered in or very near the presence of asbestos-containing products and able to inhale fibers released from the products, as the Court of Appeals indicated in Georgia-Pacific [v.] Pransky, 369 Maryland 360 [, 800 A.2d 722 ], 2002 case.... In other case law which I think is relevant to advert to at this point and which is relied upon heavily by each of the defendants with reference to the bystander cases before the Court, Lohrmann tells us that to support a reasonable inference of substantial factor causation from circumstantial evidence, and in large measure, these cases [are] circumstantial evidence cases, there must be evidence of exposure to a specific product on a regular basis over some extended ⁶⁴⁹ period of time in proximity to where the plaintiff actually worked.

To support a reasonable inference of substantial factor causation of a crane brake as to an asbestos-related disease, plaintiffs must do more than simply place themselves in the same massive facility in which overhead cranes were utilized and must do more than simply show that they or co-workers saw cranes being utilized overhead and that they helped to hook up or load—hook up loads onto cranes, they must demonstrate that they were proximate to or in the vicinity of a particular manufacturer’s crane brakes at a time when such might have been expelling respirable fibers.... Therefore, concluded as to those plaintiffs who did not work specifically on or adjacent to overhead crane brake systems or did not work regularly on the overhead cranes themselves failed to satisfy the proximity prong of the Balbos test as well as prescribed under the Maryland law. Therefore, the claims of such plaintiffs, in viewing all the facts and inferences in a light most favorable to them, amount essentially to fiber drift claims. Such plaintiffs have not submitted evidence, any evidence, no matter how attenuated or circumstantial, that would allow this Court to strain to permit their claims to survive the summary judgment.

With respect to the motions of summary judgment of the [ ] direct defendants here today are granted as to Plaintiffs ... William A. Reiter, ... Harold R. Williams, [and] William H. Johnson. Additionally, even assuming arguendo that these plaintiffs could satisfy the proximity prong of Balbos, they still failed the separate frequency and regularity requirements of the Balbos test based upon what has been presented.

Further, even if they were able to satisfy the frequency, proximity and regularity requirements of Balbos, the claims still fail as to their arguments in this context as presented amount to really market share liability which is not recognized under Maryland law. ⁶⁵⁰ Appellants’ Motions to Alter or Amend Judgment were denied on May 4, 2006, and appellants timely appealed to this Court. While all three appellees are parties to the appeal in the Williams case, only Square D is a party to the appeal in the Reiter case, and only Square D and Cutler-Hammer are parties to the appeal in the Johnson case. FACTS The Sparrows Point Facility Bethlehem Steel’s Sparrows Point facility is located in Baltimore, Maryland, and was once considered one of the largest steelmaking facilities in the world. In 1957, the facility covered more than 2,500 acres, or roughly four square miles, and employed over 25,000 people.

Numerous mills and yards were located throughout the complex, including the scrap yard, the slab yard (which included the 40 inch mill, the 40 by 80 slab mill and the 45 by 90 slab mill), the 56 inch and 68 inch hot strip mills, the pipe mills, the 56 inch cold strip mills, the tin mill, the 54 inch mill, three rod and wire mills, the blooming mills, the 160 inch plate mill, the 60 inch plate mill, the blast furnace, four open hearths, the 56 inch sheet mill, the 66 inch sheet mill, and the coke ovens. The dimensions of the tin mill are illustrative of the sheer size of the Sparrows Point facility. The tin mill alone was one and one-half miles long and one-half mile wide, covering an area of 480 acres or 20,908,800 square feet. The tin mill was, in turn, made up of several other mills, not all of which were in the same building.

These mills included the 42 skin pass, 42 tandem mill, 56 tandem null, 66 tandem mill, 56 hot mill, and 68 hot mill. The Number 3 Rod and Wire mill was also at least three football fields in length, and the mills on the finishing side of the facility were said to be the size of small towns. Overhead Crane Braking Systems Brakes on overhead cranes were necessary to brake the motors responsible for the motion of the crane. Each over ⁶⁵¹ head crane at the Sparrows Point facility had between 12 and 14 brakes.

Each brake operated on a brake wheel that was attached to the motor shaft. During the operation of the brake, the brake pads or linings (the terms are used interchangeably) came into contact with the brake wheel and physically slowed the brake wheel down. The brake linings were attached to brake shoes, which were a part of the larger brake assembly. An actuator engaged and released the brake linings.

According to the deposition testimony of Edward Becker and Frank Mortis, both electricians, a puff of dust was created from the wear of the brake lining when the brakes grabbed hold of the brake wheel. According to Mr. Mortis, the dust would “just go in the atmosphere.” Mr. Becker testified that overhead crane brakes manufactured by a dozen different companies were used throughout the plant. The brake linings used on the different overhead crane brakes were not interchangeable; the type of lining used was determined by the manufacturer of the brake. Mr. Becker stated that other than a period of time in which there was experimentation with alternate sources of brake linings, Bethlehem Steel ordered replacement linings from the original manufacturer of the brake.

Mr. Joseph Burlock, an electrical helper, also stated that he replaced worn brake linings with the same brand of lining as the brand of the brake shoe. Mr. Carroll Michalowski, who, as an expediter/material handler, ordered all the parts necessary for brake repairs, also testified that he bought all the replacement parts for the overhead crane brakes from the original equipment manufacturer. According to Mr. Michalowski, the brakes themselves would have a nameplate identifying the manufacturer of the brake. The brake linings could also be identified with a specific manufacturer because there were tags with part numbers in the packaging.

The process of replacing a worn brake lining was described by Mr. Becker. Some brake shoes came with the lining bolted to them and some brakes had linings that could be replaced ⁶⁵² separately from the shoes. When replacing a lining separately from the brake shoe, it needed to be unbolted and pried out onto the brake wheel and then taken off. The replacement lining did not have to be cut or drilled to be put back in place.

On the older cranes, where the brake linings were bolted to the shoes, the entire brake shoe had to be removed in order to change the lining. William Banks, a crane millwright, testified that if everything lined up perfectly, the slide-in brake linings would take about five minutes to install. If they did not line up, it would take about an hour. If the wrong size lining was put on the shoe, they would take it back to the shop within the Sparrows Point facility and have it redone correctly rather than cut the brake liner down, because that took too long and was a waste of time.

When non-slide-in shoes were used, if everything was lined up perfectly, installation would take 35 minutes to an hour. Raymond Dembeck, a crane millwright, described the process of replacing an entire brake shoe. Brake shoes were replaced with shoes made by the same manufacturer as the motor. He stated that the asbestos linings on the replacement shoes were generally assembled in a “rough” fashion, so they had to be filed down to match up to a drum.

The millwrights would also chamfer the ends of the pad to sweep debris off of the drum. Mr. Dembeck stated that the filing was done in a closed shop, about twelve feet by fourteen feet in size with an eight foot ceiling, and that the dust created would “float.” Mr. Dembeck explained: “Probably our proximity to the thing that we were working on made [the dust] more noticeable to us than if we had been five feet away, no doubt, but it wasn’t heavy enough to fall like an iron filing or something like that. It wasn’t that kind of weight.” He also stated: “In that area where we were, it would be a lot of dust, but not throughout the entire shop it wouldn’t be. But where we were, yeah, it was a lot.” Frederick Faber, an electrician, also testified in his deposition that when the electricians changed a brake shoe, they ⁶⁵³ would test it and adjust it, and “the brake shoes would hit the wheel and dust would fly everywhere.” He also stated that sliding a brake lining out of and back into the brake did not create dust.

Abex Abex provided the following information in its answers to appellant’s interrogatories. During various periods from approximately 1927 to 1987, Abex manufactured and sold asbestos-containing automotive friction products, including brake linings and brake pads. The Abex automotive friction products that contained asbestos contained approximately 25 to 70 percent chrysotile, a type of asbestos that was resin bonded and encapsulated. Abex manufactured and sold its asbestos-containing automotive friction products under different trade names at different times.

According to the deposition testimony of Gerald Benzinger, a Westinghouse employee from 1954 to 1985, Westinghouse manufactured brakes for crane drive systems. Westinghouse would purchase the linings used in its brake assemblies from Abex. If Westinghouse supplied a brake lining as a replacement part, they would purchase it from Abex and resell it to the customer. Westinghouse recommended replacing the brake linings on its products with Abex Brake Block number 64.

In fact, Abex lining number 64 would have to be used in order for Westinghouse to represent the torque ratings for its brake assemblies. Westinghouse did not put any of its own markings on the brake linings; replacement linings bought through the parts division at Westinghouse only had Abex markings on them. The Abex brake linings were dark gray, molded, and very smooth. In its answers to appellant’s interrogatories, Square D also stated that Abex manufactured and/or supplied brake lining materials to Square D for its use in manufacturing crane brake assemblies.

Cutler-Hammer Cutler-Hammer provided the following information in its answers to appellant’s interrogatories. Cutler-Hammer man ⁶⁵⁴ ufactured and sold certain products that contained asbestos components from approximately 1920 until approximately 1984. Cutler-Hammer brake lining components were sold beginning prior to 1956 and were phased out in the early 1980s. The material used for the brake linings is believed to have contained an unknown percentage of chrysotile asbestos.

The friction surfaces that comprised brake linings were provided to Cutler-Hammer as fully formed materials. Known suppliers of friction surfaces included Johns-Manville, Raybestos-Manhattan and Asbestos Manufacturing Company. According to a 1981 Material Safety Data Sheet, RaybestosManhattan friction material contained 25-60 percent chrysotile asbestos. Square D Square D provided the following information in its answers to appellant’s interrogatories.

From at least 1955 to approximately 2004, Square D manufactured and sold crane braking equipment. Prior to the mid-1980s, some of the braking equipment incorporated component parts that contained composite materials that may have contained some quantity of encapsulated asbestos. In general, asbestos-containing components could be found within the molded composite brake lining materials on certain braking equipment. The brake lining materials were manufactured and supplied to Square D by other companies, including Abex and Scan-Pac.

William H. Johnson Mr. William H. Johnson died of lung cancer on May 16, 2003. Only appellees Square D and Cutler-Hammer are implicated in Mr. Johnson’s suit. In his deposition, Walter John Sperl testified that he met Mr. Johnson in 1960, when they were both laborers in the slab yard. The slab yard had three open sides which were covered by a roof.

Mr. Sperl testified that he and Mr. Johnson worked together in the slab yard on a regular basis from 1960 to 1972. When working with Mr. Johnson in the slab mill, Mr. Sperl worked all three shifts. Therefore, while Mr. Sperl’s ⁶⁵⁵ and Mr. Johnson’s shifts would not necessarily coincide, the two men were on a similar rotation. Mr. Sperl stated that there were six cranes in the slab yard which were located thirty feet or more in the air.

He also stated that crane mechanics were in charge of changing out the brakes on those cranes and that he, while working underneath the cranes, did not pay any attention to what the mechanics were doing. Mr. Sperl did state, however, that he saw the crane mechanics using air hoses to blow dust off of the brakes. He also stated that he and Mr. Johnson were in the area when the crane mechanics were working on the brakes, and that brake work occurred every day or every other day. This work would sometimes take a whole day, or sometimes just an hour or two.

Mr. Sperl further testified that when brake work occurred, there would be dust in the air. Mr. Sperl could not identify the source of the dust, however. William A. Reiter William A. Reiter died on November 25, 2002, of carcinoma of the lung with metastasis, atrial fibrillation, hypertension, and coronary artery disease. Mr. Reiter worked at the Sparrows Point facility from 1947 to 1990 as a laborer and operator, all over the steel mill and the shipyard.

Only appellee Square D is implicated in Mr. Reiter’s suit. In his deposition, Mr. Lloyd Martin testified that he was a millwright repairman for machinery in the Sparrows Point tin mill from 1955 to 1990. Mr. Martin knew Mr. Reiter from working with him at the tin mill and saw Mr. Reiter almost every day for 25 to 30 of the 35 years that Mr. Martin worked at the mill. Mr. Martin first saw Mr. Reiter at the tin mill somewhere around 1960, where Mr. Reiter was a coil preparation line operator.

Overhead cranes were used to move coils in the area where Mr. Martin and Mr. Reiter worked. Some of the cranes were “directly overhead and then spread out all over the place, really.” The overhead cranes would generate dust that would come down where Mr. Reiter was working. Mr. Reiter was exposed to the crane dust “all the time” “throughout the '60s, ⁶⁵⁶ '70s, and '80s.” When the pipe coverers worked around Mr. Reiter, their work also created dust. Mr. Martin also stated that the operation of the steel mill itself created dust in the area where Mr. Reiter worked.

Charlie Coleman, a painter at the Sparrows Point facility from approximately 1952 to 1972, stated in his deposition that the tin mill was a dirty place to work. Mr. Coleman did not know where the dirt came from that landed on the cranes in the tin mill; he stated that dust could come from “throughout the mill” or from outside. Harold Gribble also testified as to the conditions in the tin mill. Mr. Gribble worked at the Sparrows Point facility from 1951 to 1991, first as a roll shop helper, then as a roll grinder.

He worked in all the mills that made up the tin mill, including 42 skin pass, 42 tandem mill, 56 tandem mill, 66 tandem mill, 56 hot mill, and 68 hot mill, not all of which were in the same building. He stated that when the mill mechanics were working on the brakes, the air around them was “awful dusty.” He stated that he could see the dust in the air, but could not identify the color. He specifically noted that dust came from the brakes when mill mechanics were working on the cranes. The brake work he described went on throughout his tenure, and he stated that crane brakes were in all the mills he worked in.

In his deposition testimony, Norman Vacovsky further described the conditions inside the tin mill. Starting in 1955, Mr. Vacovsky worked in the tin mill’s washer department as a laborer. In 1966 he was promoted to supervisor, and started working in the tin mill’s three tandem mills. In 1967 he was promoted again, and worked in both the tandem mills and the washer department.

In 1968-69 he became a daylight foreman, working primarily in the tandem mills. He testified that there were two overhead cranes in number 3 tandem mill and two cranes shared by numbers 1 and 2 tandem mills, one overhead crane in the washer, two overhead cranes in the pickier, one crane in the each of the cold storage areas, two cranes in another of the cold storage areas, one crane in the ⁶⁵⁷ continuous anneal, one crane in the duo mill,