Scapa Dryer Fabrics, Inc. v. Saville

ON MOTION FOR RECONSIDERATION MATRICCIANI, J. Appellee, Carl L. Saville (“Saville”), brought suit in the Circuit Court for Baltimore City against appellants, Scapa Dryer Fabrics (“Scapa”) and The Wallace & Gale Asbestos Settlement Trust (“W & G”), and against three other parties, alleging that his exposure to their asbestos-containing products caused his mesothelioma and carcinoma. Appellee settled with the three other parties and proceeded to trial against appellants. Appellants brought cross-claims against the settling defendants (the “Cross-Defendants”) and alleged that they were joint tort-feasors. After a trial of appellee’s claims and appellants’ cross-claims, a jury found the appellants liable and found the Cross-Defendants not liable.

Scapa moved for judgment notwithstanding the verdict (“JNOV”) or a new trial on appellee’s original claims and on its own cross-claims, while W & G moved for JNOV only on its cross-claims. The trial court denied these motions, and appellants filed timely notices of appeal. QUESTIONS PRESENTED Scapa presents five questions for our review, which we have separated and rephrased for clarity: I. Did the trial court err when it denied appellant’s motion for judgment or for judgment notwithstanding the verdict on appellee’s claims against appellant?

II

Did the trial court err when it denied appellant’s motion for judgment notwithstanding the verdict on appellant’s cross-claims against the Cross-Defendants?

III

Did the trial court err when it did not reduce the judgment for appellee to account for payments appellee received from certain bankruptcy settlement trusts? ³³⁸ IV. Did the trial court err by excluding deposition testimony of appellee’s co-worker on the issue of alternate exposure? V. Did the trial court err by admitting evidence of appellant’s knowledge of asbestos hazards post-dating appellee’s exposure to appellant’s products? W & G joins in Question II, with regard to its own cross-claims, and incorporates by reference Scapa’s arguments. 1 For the reasons set forth below, we shall affirm the judgment of the trial court.

FACTS AND PROCEEDINGS From 1964 to 1978, appellee worked at the Westvaco Pulp and Paper Mill (the “Westvaco Mill”) in Luke, Maryland. During the relevant time period, appellee was a “broke hustler” responsible for cleaning dryer felts. Dryer felts are massive fabric sheets, approximately twenty feet wide and over one hundred feet long, which were installed at various positions on several large machines in the mill. The felts move around large metal drums at high speed and provide a permeable surface upon which to dry slurry, which becomes paper.

Appellant worked on machines number eight and nine and cleaned any felt that needed to be cleaned. Scapa supplied the Westvaco Mill with dryer felts, some of which contained asbestos and were in use for approximately 13 months between 1968 and 1970, on the machine where appellee was stationed. Those dryer felts were composed of approximately 64.7% chrysotile asbestos, encased in tightly woven material and coated with resin. Appellee introduced expert testimony from Dr. James Millette, Ph.D., an environ ³³⁹ mental scientist specializing in particle contamination, who opined that the felts released respirable asbestos dust when appellee and his co-workers cleaned them by scraping them and blowing them with air hoses.

Appellee maintained that he inhaled that dust and provided expert medical testimony from Jerrold Abraham, M.D., and Steven Zimmet, M.D., that the dust was a substantial contributing factor to appellee’s later-diagnosed mesothelioma and lung cancer. Appellee also introduced the expert testimony of Dr. Barry Castleman, Sc.D., who opined that manufacturers of products containing asbestos had reason to know of the material’s hazards by the 1950’s. Scapa’s products were not the only sources of asbestos in appellee’s work environment. 2 Appellee worked near turbines that were fed by steam-pipes fitted with asbestos insulation. Asbestos was also present in gaskets, cement, turbines, and boilers, among other elements of appellee’s work environment.

In particular, appellee’s testimony and responses to requests for admissions stated that he was exposed to respirable asbestos caused by products and agents of W & G, the Westinghouse Electric Corporation (“Westinghouse”), Asten-Johnson, Inc. (“Asten”), and Albany International Corp. (“Albany”), and that none of these corporations provided any warnings that their products posed health risks. Appellee brought suit against multiple parties, including the aforementioned corporations, in 2002. At that time, W & G was in bankruptcy proceedings and was not made a defendant. Judgment from the first trial of this case was vacated by an unpublished opinion of this Court in Scapa Dryer Felts, Inc. v. Saville, 165 Md.App. 748 (2005)(“Saville I”).

Upon remand, W & G had emerged from bankruptcy and Scapa brought W & G into the instant suit by a third party complaint, in 2006. Saville then filed an amendment by interlineation, adding direct claims against W & G. The trial court consolidated all of these claims. At some point before trial, appellee entered settlement agreements with Westinghouse, Asten, and Albany ³⁴⁰ (collectively, the “Cross-Defendants”). Appellants subsequently brought cross-claims for contribution against those three Cross-Defendants.

At trial, the court made two evidentiary rulings (of many) that are at issue in this appeal. First, the trial court excluded testimony of one of appellee’s coworkers, Mr. Howard Shoemaker (“Shoemaker”), which had been taken at a video deposition in 2003 and used in the course of Saville I. Shoemaker’s testimony described thermal insulation work and the consequent dust that surrounded appellee. Shoemaker testified that the insulated pipes were in the ceiling, floors, and walls, and that appellee did not wear a dust mask and received no warnings about the dust. Saville sought to introduce Shoemaker’s testimony, and W & G moved, in limine, to exclude it.

Although Scapa initially objected to the Shoemaker testimony, Scapa later sought its introduction to bolster Scapa’s “alternate exposure” defense. The trial court heard the parties’ arguments on the matter and granted W & G’s motion to exclude the testimony, holding that it was procedurally inadmissible under the framework of Maryland Rule 2-419. 3 Second, the court allowed appellee to introduce documents that post-dated appellee’s exposure and tended to show that Scapa was aware of the dangers of asbestos. The evidence included miscellaneous documentary evidence from 1976, 1977, and 1982, all tending to show that Scapa was aware of the dangers of asbestos in its various forms (the “Post-Exposure Evidence”). Because of the unique circumstances of this case, appellants were put in an unusual situation vis-a-vis the Cross-Defendants.

Appellee’s theory of causation was that each asbestos exposure was a substantial contributing factor to his injuries, so that the appellants and Cross-Defendants’ fates were intertwined, to a certain extent. It appears that neither Scapa nor ³⁴¹ W & G wanted to hold the Cross-Defendants liable per se, fearing that this would necessarily imply that the appellants, themselves, were also liable. Thus, Scapa proposed that the court hold a bench trial on its cross-claims only if Scapa were to be found liable. The court refused to parse the trial as requested and, citing the mandates of Rule 2-325, put all issues before the jury, including the Cross-Defendants’ liability.

At this point, appellants and appellee entered into an agreement whereby Scapa agreed to curtail its evidence against the Cross-Defendants and neither party would move for judgment on the cross-claims, ensuring that the question of cross-liability would reach the jury. The end result of the foregoing was a rather unusual trial on the cross-claims with no one to defend them, during which appellants simply read evidence into the record. Much of this evidence was drawn from Saville’s testimony, responses to requests for admissions, and answers to interrogatories, and all tended to show that appellee was exposed to asbestos from the Cross-Defendants’ products. At the close of evidence on the cross-claims, which was the close of all evidence, the following exchange took place regarding the parties’ various motions and renewals: [SCAPA]: Judge, we wanted to renew our motion— THE COURT: Yes. [SCAPA]:—motion and the testimony of our witnesses we believe shows that we should prevail, Judge.

THE COURT: All right, [sic] I’ll deny the motion for both parties for the same— [W & G]: And renew mine. THE COURT: Wallace & Gale motions. [SCAPA]: And we also have what we filed originally in the court— THE COURT: Yes, for the same reasons on the same grounds and you’ll reserve all those arguments for post-trial motions and anything else you may raise. The jury deliberated and returned a verdict against appellants, finding that their products were “a substantial contrib ³⁴² uting factor in causing an asbestos related disease or illness to [appellee] Carl Saville[.]” The jury further found that both appellants negligently failed to warn appellee and that Scapa was strictly liable for failure to warn, awarding damages of $1,718,000.00. Conversely, the jury found that none of the Cross-Defendants substantially contributed to appellee’s injuries. 4 Scapa moved for JNOV or for new trial on appellee’s claims against Scapa and on its own cross-claims against the Cross-Defendants, while W & G filed a similar motion only on its cross-claims.

In its motion for JNOV, Scapa also requested that the verdict be reduced to account for settlements from certain non-party trusts that Scapa believed represented joint tort-feasors under the Maryland Uniform Contribution Among Joint Tort-Feasors Act (“UCATA”), Maryland Code (1974, 2006 Repl.Vol.), §§ 3-1401 et seq. of the Courts and Judicial Proceedings Article (“C.J.”). All of these motions were denied, but on appellee’s motion to amend judgment, the trial court accounted for settlement payments from the Manville, Celotex, and H.K. Porter settlement trusts, entering a final judgment against appellants in the amount of $1,684,415.00. Appellants filed timely notices of appeal and the case is now before this Court. DISCUSSION I. Scapa argues that the trial court erred when it denied Scapa’s motions for judgment and for JNOV on appellee’s claims.

A motion for judgment notwithstanding the verdict is evaluated the same way as a motion for judgment at close of the evidence. Owens-Illinois v. Armstrong, 87 Md.App. 699, 716-17 , 591 A.2d 544 (1991), aff'd in part, rev’d in part and remanded on other grounds, 326 Md. 107 , 604 A.2d 47 (1992); Weathersby v. Kentucky Fried Chicken Nat’l Mgmt. Co., 86 ³⁴³ Md.App. 533, 552, 587 A.2d 569 (1991), rev’d on other grounds, 326 Md. 663 , 607 A.2d 8 (1992). We will therefore combine our analysis of Scapa’s arguments that the trial court erred with respect to its motions for judgment and for JNOV.

We review the trial court’s decision to allow or deny judgment or JNOV to determine whether it was legally correct. Houghton v. Forrest, 183 Md.App. 15, 26 , 959 A.2d 816 (2008), cert. granted, 407 Md. 529 , 967 A.2d 182 (2009) (citing Shabazz v. Bob Evans Farms, Inc., 163 Md.App. 602, 643 , 881 A.2d 1212 (2005)). Judgment as a matter of law is appropriate if all evidence and inferences permit only one consideration. Smith v. Miller, 7. 1 Md.App. 273, 278 , 525 A.2d 245 (1987).

If there is any competent evidence, however slight, leading to support the plaintiffs right to recover, the case should be submitted to the jury. Belleson v. Klohr, 257 Md. 642, 646 , 264 A.2d 274 (1970) (citation omitted). In making this determination, we assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain the non-movant’s contentions. Franklin v. Gupta, 81 Md.App. 345, 354 , 567 A.2d 524 (1990) (citing Impala Platinum v. Impala Sales, 283 Md. 296 , 389 A.2d 887 (1978); McGarr v. Boy Scouts of America, 74 Md.App. 127 , 536 A.2d 728 (1988)). “If, however, the evidence as a whole does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty, then the denial of appellants’ motions for judgment or JNOV was error.” Bartholomee v. Casey, 103 Md.App. 34, 51 , 651 A.2d 908 (1994).

Scapa argues that the trial court should have granted judgment or JNOV in its favor because appellee did not prove causation. The parties do not dispute that the appropriate theory of causation is the “substantial contributing factor” theory, which is satisfied by the “frequency, regularity, proximity” test of exposure: 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 ³⁴⁴ 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.

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 the exposure of that plaintiff to the use of that product. Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 210 , 604 A.2d 445 (1992) (internal citations omitted). Exposure can be demonstrated circumstantially. Id. at 210 , 604 A.2d 445 (citing Roehling v. Nat’l Gypsum Co. Gold Bond Bldg.

Prods., 786 F.2d 1225 , 1228 (4th Cir.1986) (“The evidence, circumstantial as it may be, need only establish that [plaintiff] was in the same vicinity as witnesses who can identify the products causing the asbestos dust that all people in that area, not just the product handlers, inhaled.”)). Scapa puts forth four arguments in support of its primary contention that appellee failed to prove causation. First, Scapa devotes a significant portion of its brief to describing Scapa’s “unique product” and the ways in which its physical characteristics, combined with the excessive moisture and ventilation in the paper mill environment and the fact that felt integrity was paramount, made it “exceedingly unlikely” that a mill worker would ever be exposed to asbestos from Scapa’s dryer felts. Although these facts are not referenced in Scapa’s argument section, we presume that Scapa brought them to our attention in order to argue a sort of reverse res ipsa loquitur, i.e., that the jury could not have found rationally that Scapa’s product exposed appellee to asbestos.

However, appellee provided competent expert testimony that Scapa’s product, as used by appellee, would discharge respirable asbestos. ³⁴⁵ Second, Scapa argues that the jury could only speculate that appellee actually scraped Scapa’s product because 1) it was impossible to tell whether a particular felt was Scapa’s or contained asbestos and 2) because Scapa’s felts ran only on the second position of machine nine, whereas appellee worked “mostly” at the first position of that machine and never directly testified that he worked at the second position. While Scapa is correct that there is no direct evidence that appellee worked with a Scapa dryer felt containing asbestos, there is more than enough circumstantial evidence to conclude that appellee performed a significant amount of work on Scapa’s product. The evidence showed that appellee worked on a machine (nine) running one of Scapa’s asbestos-containing felts for more than a year. During that time, he and his coworkers cleaned the felts with an air hose daily, and they scraped the felts clean once or twice each week.

Both of these activities created substantial amounts of dust that blanketed appellee. Although the evidence proved that, at any given time, an unknown number of felts ran at separate positions on the machine, the evidence also showed that this number could have been no more than a handful. And though appellant spent most of his time on a position where the Scapa felt was known not to have run, that still left up to half of his time divided among the remaining felts, one of which was known to be Scapa’s asbestos-containing felt. Taken together, this evidence proved that appellee was significantly exposed to Scapa’s product, which is all that the law requires in order to uphold the trial court’s denial of judgment or JNOV.

Third, Scapa argues that appellee proved no more exposure than plaintiffs in two cases where judgments or JNOY’s were affirmed, Anchor Packing v. Grimshaw, 115 Md.App. 134 , 692 A.2d 5 (1997), rev’d on other grounds sub nom., Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998), and Reiter v. ACandS, Inc., 179 Md.App. 645, 665 , 947 A.2d 570 (2008), cert. granted, Reiter v. Pneumo Abex, 405 Md. 506 , 954 A.2d 467 (2008). Grimshaw upheld a judgment in favor of the defendant where there was “no evidence that [plaintiff] ³⁴⁶ worked in the same area as [defendant’s workers] except in the warehouse, and that was for at .most an hour.” 115 Md.App. at 207 , 692 A.2d 5 . Viewed in a light most favorable to appellee, the evidence in this case establishes much more than a single hour of exposure, so that the Grimskaw decision does not control. We summarized the exposure evidence in Reiter , as follows: While Square D crane brakes may have been used in the tin mill, there was no testimony that Square D was the exclusive supplier of crane brakes in that mill.

Indeed, there were approximately a dozen different manufacturers’ crane brake assemblies used in the various Sparrows Point facilities. Further, and as explained supra, the tin mill was made up of several other mills, covering an area of approximately 480 acres. The most that can be shown is that there is some probability that a Square D brake assembly was located somewhere in the tin mill at the same time that Mr. Reiter was also in the mill. To infer from that information that Mr. Reiter was exposed to Square D brake linings that were expelling respirable asbestos fibers with the proximity, regularity, and frequency required by Balbos would be speculation, at best. 179 Md.App. at 665 , 947 A.2d 570 .

Unlike Reiter , the evidence in this case conclusively established that plaintiff worked in close proximity to Scapa’s asbestos-containing felt for a significant period of time, leaving him covered in dust. Although the evidence in this case is, as in Reiter , circumstantial and, by its nature, establishes only “some probability,” the evidence here establishes a much higher probability that appellee was exposed to asbestos than did the evidence in Reiter . This is all that is needed to bring the issue before the jury. Cf.

McClenny v. Przyborowski, 182 Md. 95, 98 , 32 A.2d 365 (1943) (no failure of proof where circumstantial evidence proves a reasonable probability, and not a mere possibility). For these reasons, Reiter fails to control the disposition of this case. ³⁴⁷ Finally, Scapa argues that the evidence against the Cross-Defendants proved that appellee had more exposure to the Cross-Defendants’ products than to Scapa’s products, and that the jury’s verdict is therefore inconsistent and warrants a JNOV. 5 As the Court of Appeals explained in Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 521-22 , 682 A.2d 1143 (1996): Our first order of business is to reiterate longstanding Maryland law that it is not the province of an appellate court to express an opinion regarding the weight of the evidence when reviewing judgment on a jury verdict. Even if a jury verdict is “inconsistent” in the sense that certain findings of fact cannot logically be reconciled with each other, we will normally not reverse a jury’s verdict either in a civil or a criminal case. (internal citations omitted).

We nevertheless note that Scapa argues that evidence, drawn from Saville’s testimony and responses to requests for admissions, “conclusively established” that he was exposed to more asbestos from the Cross-Defendants’ products than from Scapa’s. This rests in part on an incorrect interpretation of Rule 2-424(d). 6 The Garrett decision informs our opinion on this issue: We also note that we are mystified by [appellant’s insistence that plaintiffs made “binding” admissions as to the liability of cross-defendants during argument. The plaintiffs’ counsels could not “bind” the jury, nor parties whom , they did not represent, to liability simply because they argued to the jury that they had introduced sufficient ³⁴⁸ evidence to hold certain cross-defendants liable. [Appellant’s position is illogical; the jury was clearly capable of disagreeing with the plaintiffs’ assessment of the weight of the evidence in the case, and apparently did so. 343 Md. at 523 , 682 A.2d 1143 . Garrett addresses an alleged admission of liability, while in the present case we have merely statements of fact.

Nevertheless, it would be contrary to logic and the obvious purpose of that rule if one party’s admissions were binding upon another party. Saville’s testimony and responses to requests for admissions were the primary evidence introduced against the Cross-Defendants. The record reveals scant other evidence establishing liability on the part of the Cross-Defendants. The jury was not bound to accept that evidence as conclusive of liability, and therefore did not contradict itself when it found appellants liable and the Cross-Defendants not liable.

The evidence in this case, taken in a light most favorable to appellee, does not lead to the inexorable conclusion that Scapa was not liable and therefore gives us no reason to overturn the trial court’s decision to deny Scapa’s motions for judgment or JNOV.

II

Appellants argue, jointly, that the trial court erred when it denied their motions for judgment notwithstanding the verdict on their cross-claims. Appellee argues that appellants did not meet the JNOV prerequisites of Maryland Rule 2-532 because they had not moved for judgment at any point during trial. To rebut this procedural argument, appellants contend, first, that the parties’ mutual agreement to refrain from moving for judgment did not act as a waiver of their respective rights to