Reiter v. Pneumo Abex, LLC

MURPHY, J. The Petitioners in the case at bar are the widows of steelworkers who were employed by the Bethlehem Steel Corporation at its Sparrows Point facility (“facility”), 1 and the Respondents are corporations that supplied products containing asbestos to the facility. 2 In the Circuit Court for Baltimore City, Petitioners—in their individual and representative capacities—filed complaints in which they asserted that their ⁶⁰ husbands died from lung cancer caused by exposure to the asbestos contained in the products supplied by the Respondents. The Petitioners’ cases were among the cases “consolidated” into two groups: (1) the “Adams” Group, which included decedents William A. Reiter and Harold R. Williams; and (2) the “Conyers” Group, which included decedent William H. Johnson. At the conclusion of a two day motions hearing, the Circuit Court granted Respondents’ motions for summary judgment, and entered judgment against each of the Petitioners. Petitioners noted an appeal to the Court of Special Appeals, and that court affirmed the judgment of the Circuit Court.

Reiter v. ACandS, Inc., 179 Md.App. 645 , 947 A.2d 570 (2008). Petitioners then filed a petition for 'writ of certiorari in which they requested that this Court answer the following questions: I. Whether the grant of summary judgment dismissing [Petitioners’] asbestos injury claims as a matter of law on the issue of substantial factor causation constitutes error where [Petitioners] presented evidence that asbestos-containing crane brakes of the [Respondents] were present throughout the areas where [Petitioners] worked and that [Petitioners] worked in the vicinity of those crane brakes when the crane brakes emitted asbestos-containing dust to which [Petitioners] were exposed[?] II. Whether the grant of summary judgment dismissing [Petitioners’] asbestos injury claims as a matter of law on the issue of substantial factor causation constitutes error where the court requires direct testimonial evidence of specific exposures and ignores circumstantial evidence of such exposures[?] III. Whether the grant of summary judgment dismissing [Petitioners’] asbestos injury claims as a matter of law on the issue of substantial factor causation constitutes error where the grant of summary judgment is based on the theory of market share liability and the evidence demonstrated that [Respondents’] asbestos-containing products were in place where [Petitioners] worked and that these ⁶¹ products emitted dust to which [Petitioners] were exposed[?] We granted the petition. 405 Md. 506 , 954 A.2d 467 (2008).

From our review of the record, we conclude that Petitioners’ evidence was sufficient to generate a jury issue on the question of whether (1) each decedent was exposed to asbestos dust at his workplace, and (2) Respondents manufactured some of the crane brake products used at the facility. We also conclude, however, that Petitioners’ evidence was insufficient to establish that any of the Respondents’ products were used at the specific site(s) where the Petitioners actually worked. We shall therefore affirm the judgment of the Court of Special Appeals. Factual Background The record includes the following information about the decedents: William H. Johnson, who worked as a laborer in the slab yard from 1960-1972, died of lung cancer on May 16, 2003.

Respondents Square D and Cutler-Hammer are implicated in his suit. Mr. Johnson was never deposed. Mr. Johnson’s only fact-specific witness was Mr. Walter John Sperl (“Mr. Sperl”). Although he occasionally worked with Mr. Johnson at other locations in the facility, Mr. Sperl testified that the only location at which Mr. Johnson worked with any frequency or regularity was the area of the slab yard adjacent to the 56-Inch Hot Strip Mill.

This area was the size of nearly three football fields. William A. Reiter, who worked in the tin mill from 1947-1990, died on November 25, 2002 from carcinoma of the lung, atrial fibrillation, hypertension and coronary heart disease. Only Square D is implicated in his suit. Mr. Reiter was never deposed.

The only fact-specific witness deposed in Mr. Reiter’s case was Mr. Lloyd Martin (“Mr. Martin”). Mr. Martin began working with Mr. Reiter at the tin mill sometime in 1960 when Mr. Reiter held a ground level position in the tin mill as a line worker in the coil prep line. According to Mr. Martin, Mr. Reiter never worked at ⁶² any location of the tin mill other than the coil prep fine. The tin mill itself accounted for nearly 480 acres of the entire Sparrows Point facility.

The coil prep line accounted for 50 square feet of this area. Harold R. Williams, who worked as a laborer at the facility from 1964-1993, died on October 17, 2003 of pneumonia and small cell lung cancer. Square D, Abex, and Cutler Hammer are all implicated in Mr. Williams’ suit. The only witness deposed in Mr. Williams’ suit was Robert Freeman (“Mr. Freeman”), who testified at his deposition that beginning in the early 1960’s he worked with Mr. Williams in the scrap yard.

By the mid 1960’s both men were assigned to work at the “finishing end” of the Number 3 Rod and Wire Mill. Mr. Freeman stated that he and Mr. Williams would see each other roughly 15-20 times per day and that Mr. Williams’ job duties were performed exclusively at the finishing end. The finishing end of the Number 3 Rod and Wire Mill was an area that was the size of nearly three football fields. The record includes the following product identification evidence: Slab Yard: Joe Burlock, who worked at the blooming mills and the slab yards from 1964-1985, testified that Cutler-Hammer and Square D brake linings were used on the crane brakes throughout the site during this time.

Eddie Hawkes, who worked as a crane operator in the slab yard from 1964-1975, identified both Cutler-Hammer and Square D braking systems on crane brakes at these mills throughout the period that he worked there. 3 William Devilbiss, who worked at the blooming mills and slab yards as well as the hot strip nulls from 1964 through the 1980’s, testified that Cutler-Hammer brake linings were used at these sites during this period of time. Tin Mill: Gerald Myers, who worked in the tin mill from the early 1960’s through the 1980’s, testified that Square D ⁶³ brake linings were used at that site during this period of time. Bobby Sherrod, who worked in the tin mill from 1975-1985, testified that Square D brake linings were used at that site during the entire time that he worked there. James Tent, who worked at the tin mill from 1970-1972, testified that Square D brake linings were used on the crane brakes at that site during this period of time.

Rod and Wire Mills: Neil White, who worked in one of the three rod & wire mills from 1959 into the 1980s, identified Westinghouse (Pneumo Abex) crane brake linings, Square D brake linings, and Cutler-Hammer brake linings in the mill throughout that period of time. Frank Mortis, who worked from 1970 to 2003 as an electrician throughout the facility, identified crane brake units supplied by Cutler-Hammer and Square D. The record shows that, while granting motions for summary judgment in the Petitioners’ cases, and denying the Respondents’ motions for summary judgment in cases involving other plaintiffs, the Circuit Court delivered an oral opinion that included the following findings and conclusions: 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 ⁶⁴ 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 Georgiar-Pacific [u] Pransky, 369 [Md.] 360 [ 800 A.2d 722 ], [a] 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 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. ⁶⁵ 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. As to the various plaintiff and co-worker testimony, cannot, does not, has not placed these plaintiffs in the vicinity of or proximate to any specific manufacturer’s product at specific points in time. With respect to those plaintiffs working directly on or adjacent to, truly in the vicinity of the crane brakes the Court has concluded otherwise. Those individuals include Plaintiff James Crudup who was a laborer and electrician between 1952 and 1992, whose work involved cleaning up dust and debris throughout the mills and working in close proximity to the electricians and millwrights those workers who would be more directly working with the crane break, the asbestos-containing brake linings, removal and such, repair and adjustments.

On a weekly basis there’s evidence that Mr. Crudup used his air hose to blow out the brakes, he was in the immediate ⁶⁶ area when the brakes were blown out and dust accumulated in the brake systems was released into the atmosphere. As to Plaintiff Eddie Hawkes who the Court understands to have been a laborer between 1946 and I believe 1975 who worked inside and outside the crane [] themselves, he indeed was a crane operator at—I believe it’s the blooming mills for a period of 1952 to '64, I’m satisfied the standards test is shown and satisfied. With respect to Mr. Howard, Freddie Howard who is a painter who worked between 1940 and 1983, according to the evidence presented and shown by the plaintiffs his primary job was to clean the dust off of and paint the many cranes throughout the many buildings, facilities near—he was near the repairmen, again, primarily electricians and millwrights working on fixing, dealing with the brake linings which are the asbestos-containing products at issue here, the dust created by the repairs being done and is the person most clearly shown to have been working with the electricians. Taking into account both the finite number of cranes in the different facilities as well as the typically long tenure of the plaintiffs just noted at the particular facilities where they were employed, it’s reasonable to infer in those specific instances in the former Adams now Conyers group that such plaintiffs worked on or closely adjacent to all the crane brakes in a given facility, meaning a particular building at Sparrows Point and did so regularly and frequently.

This combined with the plaintiff and co-worker testimony placing asbestos-containing crane brake linings by specific manufacturers at specific Sparrows Point facilities, particular mills, leads the Court to infer, at least for summary judgment purposes, that these plaintiffs indeed worked proximately and frequently and regularly around all the crane brakes of all manufacturers identified at particular facilities at Sparrows Point. Again this differs from the laborers and the other workers against whom summary judgment has been granted by the court, assuming arguendo that those laborers and work ⁶⁷ ers could satisfy the Balbos test, there’s been no showing that they worked in the vicinity of every crane brake at the Sparrows Point facility. As stated above, after the judgment of the Circuit Court was affirmed by the Court of Special Appeals, this Court issued a writ of certiorari to address the Petitioners’ questions. Discussion The following standard of review is applicable to the case at bar: Whether summary judgment was granted properly is a question of law.

The standard of review is de novo, and whether the trial court was legally correct. See Walk v. Hartford Casualty, 382 Md. 1, 14 , 852 A.2d 98, 105 (2004). Maryland Rule 2-501 (e) states that a trial court “shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In reviewing a grant of summary judgment under Rule 2-501(e), we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Jurgensen v. New Phoenix, 380 Md. 106, 114 , 843 A.2d 865, 869 (2004).

We review the record in the light most favorable to the non-moving party and construe any reasonable inferences which may be drawn from the facts against the movant. Id. To survive a motion for summary judgment, there must exist not just a dispute as to any facts, but rather as to facts which are material, i.e. necessary to the determination of the case. Remsburg v. Montgomery, 376 Md. 568, 580 , 831 A.2d 18, 25 (2003); Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206, 209 (2001); Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005, 1011 (1993). ⁶⁸ Livesay v. Baltimore County, 384 Md. 1, 9-10 , 862 A.2d 33, 35 (2004).

In Eagle-Picher Industries v. Balbos, 326 Md. 179 , 604 A.2d 445 (1992), this Court stated: 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. The finding involves the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystander plaintiff. See, e.g., Rotondo v. Keene Corp., 956 F.2d 435 [436] (3d Cir.1992) [1992 Asbestos Lit.R.

(Andrews) 24, 745]. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of