Wallace & Gale Asbestos Settlement Trust v. Busch

Panel: Kehoe, Berger, Beachley, JJ. Berger, J. ⁶⁹⁹ Following a 14-day trial, a jury returned a verdict in the Circuit Court for Baltimore City in favor of William Edward Busch, Jr. ("Busch"), appellee, and his wife Kathleen. 1 The jury found that Busch suffered from mesothelioma caused by exposure to asbestos-containing insulation products installed by Wallace & Gale Co. ("W & G") during the construction of Loch Raven High School ("LRHS"). Busch worked as a steamfitter during the construction of LRHS. W & G was the predecessor to Wallace and Gale Asbestos Settlement Trust ("WGAST"), appellant.

In this appeal, WGAST presents two questions 2 for our consideration, which we have rephrased as five questions as follows: I. Whether there was legally sufficient evidence to support a rational inference of causation. ⁷⁰⁰ II. Whether the circuit court erred and/or abused its discretion by permitting Busch to introduce evidence relating to the dismissal of McCormick Asbestos Company from the lawsuit. ⁴⁰⁴ III. Whether the circuit court erred and/or abused its discretion by permitting Busch to introduce evidence of W & G's insulation work at LRHS during a broader period of time than when Busch actually worked on the site.

IV

Whether the circuit court erred and/or abused its discretion by declining to propound WGAST's requested jury instruction on fiber drift. V. Whether the circuit court erred and/or abused its discretion in association with its instructions about interrogatory responses and statements in the Complaints. For the reasons explained herein, we shall affirm. FACTS AND PROCEEDINGS Busch is a 69-year-old retired steamfitter.

Busch began working as an apprentice steamfitter in 1967. Throughout his career, Busch worked for Lloyd E. Mitchell, Honeywell Corporation, and J.F. Fischer. At J.F. Fischer, Busch advanced to the position of project manager and department head. Busch worked on many construction projects throughout his career, including the construction of Mercy Hospital, a building at the Edgewood Arsenal, the Mercantile Bank & Trust Building in downtown Baltimore, the BlueCross/BlueShield building in Towson, LRHS, the Frederick Towne Mall, the USF & G Building (now the Transamerica Building) in downtown Baltimore, Old Mill High School in Anne Arundel County, and residential projects, among others.

As a steamfitter, Busch installed HVAC equipment. Busch was employed by Honeywell for thirty years, including during the construction of LRHS. Busch would install thermostats, sensors, relay stations, fan control systems, and automatic temperature control devices. The work performed ⁷⁰¹ by Busch generally occurred at the end of construction, when "most of the job sites were pretty much completed and finished." Busch alleged that he was exposed to asbestos at various job sites over the course of his career. 3 W & G was a local insulation contractor that sold and installed insulation products, some but not all of which contained asbestos.

For example, W & G sold and installed fiberglass and foamglass products, which did not contain asbestos. W & G petitioned for Chapter 11 bankruptcy protection in 1984. In 2002, WGAST was established pursuant to a reorganization plan and was approved by the United States Bankruptcy Court for the District of Maryland. McCormick Asbestos Company ("McCormick"), since renamed MCIC, Inc., was another local insulation contractor and a competitor of W & G. MCIC was a party to the lawsuit below, but was dismissed by the plaintiffs one month before trial.

The specific construction project at which Busch asserts he was exposed to asbestos-containing products installed by W & G is the LRHS project. While employed by Honeywell, Busch worked on the construction of LRHS for three to four months in the late winter and early spring of 1972. Busch worked mostly in the school's boiler room, near two large fifteen-foot by twenty-foot boilers. Busch testified ⁴⁰⁵ that during the time period that he was working in the boiler room, he was exposed to a "snow storm" of visible dust created when blocks of insulation were cut, stacked around the boilers, and covered with cement.

The building specifications for LRHS required that magnesia blocks be used to insulate the boilers. Busch presented evidence at trial that, in 1972, magnesia block contained up to 15% asbestos by weight. Abatement records from the Baltimore ⁷⁰² County Public Schools were introduced to show that the block used to insulate boilers at LRHS contained asbestos. Additional evidence was presented to establish that the cement used to cover the magnesia block also contained asbestos.

Prior to trial, in response to interrogatories, Busch identified McCormick and Georgia-Pacific, LLC as the source of his asbestos exposure at LRHS. Specifically, Busch averred that during the construction of LRHS, he "worked with and around asbestos-containing thermal insulation products sold, supplied and installed by McCormick Asbestos Company (MCIC) and asbestos-containing joint compound manufactured, sold and supplied by Georgia-Pacific LLC." Busch also identified two witnesses with personal knowledge of his exposure in his interrogatory responses: Richard Huettel and Howard Sheppard. At his deposition, Busch testified that he did not know the employer of the insulators around whom he had worked at LRHS. At trial, Busch testified that he did not have any recollection of who employed the insulators during the LRHS construction project.

Huettel testified at trial that McCormick was the company responsible for insulation of the boilers at LRHS. Sheppard's 2007 deposition was presented as testimony at trial. Sheppard also testified that McCormick employed the pipe insulators at LRHS. Neither Huettel nor Sheppard identified W & G as the party responsible for insulation in the boiler room at LRHS.

Other evidence was presented at trial to demonstrate that W & G performed insulation work at LRHS. A partial billing statement was sent by W & G to mechanical contractor Poole & Kent Co. ("Poole") for "Job # 5679" on February 16, 1972. The document provided that W & G had "insulated various plumbing, heating and ventilating surfaces" at LRHS in connection with Job # 5679. A second "partial billing" was sent on May 15, 1972 for work on the same project.

The partial billings reflect that the value of Job # 5679 was $145,250.00, ⁷⁰³ but the invoices sent by W & G to Poole that were entered into evidence at trial totaled less than $20,000.00. Time sheets for individual insulators employed by W & G for work performed at LRHS in association with Job # 5679 were also admitted into evidence. The time sheets establish that W & G insulators worked at LRHS during the February - June 1972 time period. The time sheets indicate that W & G insulators worked on Job # 5679 at LRHS for over 4,500 man-hours during that time period.

WGAST acknowledged at trial that W & G insulators performed work during the construction of LRHS, but contended that no evidence had been presented to show that W & G insulators worked with asbestos-containing products at LRHS. Invoices, order forms, and delivery ticket shipment records were introduced into evidence referencing "Foam Glass" pipe covering material, "FG PC" [fiberglass pipe covering material], "Powerhouse cement," and "Glass Board FSK Facing." It was not disputed that "FG" is an abbreviation for fiberglass and that "Powerhouse cement" does not contain asbestos. ⁴⁰⁶ The construction specifications for LRHS required that piping be "insulated with one (1?) thickness Fiberglass Standard PF sectional pipe covering." "Condensate return piping" was required to "be insulated with 3/4? thick low pressure Fiberglass with dual temperature jacket." Chilled water supply was to be insulated with "flexible foam plastic insulation." With respect to equipment insulation, the construction specifications provided that "[a]ll heating-ventilating and heating-air conditioning units shall be insulated with 1-1/2? fiberglass." The only documentary evidence introduced directly connecting W & G to the boiler room was a "partial billing" for Job # 5679 sent by W & G on February 16, 1972 to A.C. MacDonald, Inc., for work performed "to insulate fire lines in boiler room." The construction specifications for LRHS provided that "foamglass" insulation would be used for the insulation of fire lines. Neither fiberglass nor foamglass contain asbestos or cause mesothelioma. ⁷⁰⁴ The construction specifications required asbestos-containing insulation of the boilers themselves, providing that "[t]he boilers shall be insulated with 1-1/2? thickness Magnesia blocks, secured with hexagonal wire mesh and finished with two coats of asbestos cement troweled smooth." Indeed, Busch testified that he was exposed to dust when the block insulation and cement were installed during the insulation of the two boilers. No direct evidence was presented specifically connecting W & G to the supply and/or installation of magnesia block insulation.

Busch introduced evidence at trial to demonstrate that the sawing of magnesia insulation blocks in the boiler room was a contributing factor to Busch's mesothelioma. Initially, Busch brought suit against seven defendants seeking damages for his occupational exposure to asbestos-containing products and subsequent development of mesothelioma. The case proceeded to trial against four defendants involving eight different worksites. By the close of the plaintiffs' case, only three defendants remained, and only two defendants remained by the close of evidence.

The circuit court denied WGAST's motion for judgment at the end of the plaintiffs' case and renewed motion for judgment at the close of evidence. The jury returned a verdict in favor of the plaintiffs against both defendants, WGAST and Georgia-Pacific. The jury found in the defendants' favor with respect to their cross-claims against two former defendants. The jury awarded the plaintiffs a total of $14,568,528.33 in damages, 4 which was subsequently reduced to $7,284,264.17 by the circuit court due to the cross-claims against the absent defendants.

WGAST moved for JNOV, a new trial, and, in the alternative, remittitur. The circuit court denied WGAST's motions. WGAST noted a timely appeal. Georgia-Pacific noted an appeal as well, but subsequently settled with the plaintiffs. ⁷⁰⁵ Additional facts shall be discussed as necessitated by our discussion of the issues on appeal.

DISCUSSION I. WGAST first argues that the circuit court erred by denying its motion for judgment on the basis that Busch failed to present legally sufficient evidence to support ⁴⁰⁷ a rational inference of causation. We review a trial court's decision to grant or deny a motion for judgment applying the de novo standard of review. DeMuth v. Strong , 205 Md. App. 521 , 547, 45 A.3d 898 (2012). "In the trial of a civil action, if, from the evidence adduced that is most favorable to the plaintiff, a reasonable finder of fact could find the essential elements of the cause of action by a preponderance standard, the issue is for the jury to decide, and a motion for judgment should not be granted." Id.

(citation omitted). In an asbestos case, a plaintiff seeking recovery must show that his or her exposure to the asbestos-containing product was a substantial factor in the development of his injury. See Eagle-Picher Industries, Inc. v. Balbos , 326 Md. 179 , 210, 604 A.2d 445 (1992). Busch, who worked in close proximity to insulation contractors but did not himself perform insulation work, is what the Court of Appeals has "termed a 'bystander,' in that he did not work directly with the asbestos products but was in the vicinity of where such products were used." Owens-Corning Fiberglas Corp. v. Garrett , 343 Md. 500 , 526, 682 A.2d 1143 (1996).

A plaintiff seeking damages for exposure to asbestos as a bystander "must prove that [the appellees'] products were a substantial causative factor in his illness and ultimate death." Id. The Court of Appeals set forth the "frequency, proximity, and regularity" test for substantial factor causation in Balbos , supra : 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 ⁷⁰⁶ 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. 326 Md. at 210 -11 , 604 A.2d 445 (citations omitted) (emphasis added). Balbos requires that the plaintiff prove (1) that the plaintiff was actually exposed to the defendant's asbestos-containing product, and (2) that the exposure was regular, proximate, and frequent. Id. A plaintiff is "required to present evidence of exposure to a ' specific product [made or manufactured by the defendants] on a regular basis, over some extended period of time, in proximity to where the [plaintiff] actually worked .' ") (emphasis in original) (quoting Lohrmann v. Pittsburgh Corning Corp. , 782 F.2d 1156 , 1162-63 (4th Cir. 1986) ).

Many of the facts of this case are not in dispute. Indeed, no party disputes the following: • Busch worked on the LRHS site for multiple months. • Busch worked primarily in the boiler room during the construction of LRHS. • While in the boiler room, Busch was exposed to dust created when magnesia block insulation was cut. • Magnesia block insulation was used to insulate the boilers at LRHS. • The magnesia block insulation contained asbestos. ⁴⁰⁸ • The magnesia block insulation was coated with asbestos-containing cement. • Busch ultimately developed mesothelioma. ⁷⁰⁷ • The asbestos-containing magnesia block and cement contributed to the development of Busch's mesothelioma. WGAST's argument on appeal is quite narrow. WGAST argues that insufficient evidence was presented upon which a reasonable jury could conclude that W & G was responsible for the supply and/or installation of asbestos-containing magnesia block during the construction of LRHS.

Although WGAST focuses on the Balbos "frequency, regularity, proximity" test for substantial factor causation, this case is, at its core, about product identification, and the question before us is whether the evidence presented at trial was sufficient to support an inference that W & G installers installed asbestos-containing magnesia block in the boiler room at LRHS. Indeed, the parties agree that Busch frequently and regularly worked in close proximity to specific asbestos-containing products -- namely, magnesia block insulation in the LRHS boiler room. WGAST asserts that the evidence produced at trial failed to place Busch near W & G installers using asbestos-containing materials. WGAST emphasizes that the documentary evidence presented does not expressly connect W & G to asbestos-containing products.

WGAST further points to documentary evidence demonstrating that W & G installers applied non-asbestos containing insulation (including foamglass and fiberglass) at LRHS. WGAST asserts that, because Busch did not present direct evidence that W & G supplied or installed magnesia block with asbestos cement on the boilers, the jury's verdict cannot stand. WGAST characterizes the jury's verdict as impermissibly speculative, arguing that Busch failed to prove actual, specific exposure to asbestos from W & G's product. As we shall explain, the evidence, though slight, was sufficient to allow the case to go to the jury.

In support of his assertion that W & G installed the magnesia block insulation in the boiler room at LRHS, Busch presented the following evidence: ⁷⁰⁸ • Time sheets demonstrating that W & G insulators worked on Job # 5679 at LRHS for over 4,500 man-hours during the February - June 1972 time period. • Partial billing statements sent by W & G to Poole for "Job # 5679" on February 16, 1972 and May 15, 1972 indicating that W & G performed work associated with "insulat[ing] various plumbing, heating and ventilating surfaces" at LRHS. A second "partial billing" was sent on May 15, 1972 for work on the same project. • The partial billings reflect that the value of Job # 5679 was $145,250.00, but the invoices entered into evidence at trial totaled less than $20,000.00. • A "partial billing" for Job # 5679 sent by W & G on February 16, 1972 to A.C. MacDonald, Inc., for work performed by W & G in association with "insulat[ing] fire lines in boiler room." In our view, this evidence could have led a reasonable fact-finder to conclude that W & G was the primary, if not the only, insulator working at LRHS during the critical time period. A reasonable fact-finder could have inferred that, given the significant number of hours W & G performed insulation services at LRHS, the services provided included the insulation of ⁴⁰⁹ the boiler with magnesia block. A fact-finder might have considered it unlikely that a separate insulation contractor would have been hired for the limited purpose of insulating the boilers while W & G was already on site performing a great deal of insulation work, including work in the boiler room.

This evidence does not necessarily compel a conclusion that W & G applied asbestos-containing insulation to the boiler in the boiler room at LRHS. It is, however, evidence upon which a reasonable fact-finder could have found it more likely than not that W & G was responsible for the work. This is all that is required under the preponderance of the evidence standard. To be sure, such a conclusion would have required a fact-finder to make inferences based upon the evidence presented.

This is, certainly, a circumstantial evidence case. "Circumstantial ⁷⁰⁹ evidence of exposure will suffice" to support a jury's finding that a plaintiff was exposed to asbestos-containing materials. Scapa Dryer Fabrics, Inc. v. Saville , 418 Md. 496 , 511, 16 A.3d 159 (2011). See also Balbos , supra , 326 Md. at 210 , 604 A.2d 445 (1992) ("Exposure, however, may be established circumstantially.").

Circumstantial evidence "is not inherently insufficient [in a negligence case]; all that is necessary is that it amount to a reasonable likelihood or probability rather than a possibility." Peterson v. Underwood , 258 Md. 9 , 17, 264 A.2d 851 (1970). Here, based upon the evidence discussed supra , the jury was entitled to find that it was likely or probable that W & G performed the insulation work on the boilers at LRHS, that Busch was exposed to asbestos dust while working the boiler room, and that, as a result, Busch developed mesothelioma. In support of its assertion that the evidence presented in this case was too speculative to support the jury's verdict, WGAST points to the case of Reiter v. Pneumo Abex, LLC , 417 Md. 57 , 8 A.3d 725 (2010). In Reiter , the Court of Appeals held that the plaintiffs failed to generate a jury issue when plaintiffs worked in a facility approximately "the size of an airplane hanger" but merely produced evidence that asbestos products had generally been used in the facility.

Id. at 70 , 8 A.3d 725 . The Court explained that the plaintiffs were required to produce evidence of asbestos use "in proximity to where the decedents actually worked." Id. at 69, 8 A.3d 725 . WGAST compares the large high school in this case to the large facility in Reiter. Critically, however, in the present case, Busch presented direct evidence of exposure to asbestos-containing products in the enclosed 40 ft. x 40 ft. boiler room at LRHS and circumstantial evidence to support a jury conclusion that W & G was the primary insulation contractor working at LRHS.

This is not a case in which evidence was presented showing the general presence of