Wallace & Gale Asbestos Settlement Trust v. Busch

II

Is it permissible to inform a jury that a co-defendant to the asbestos lawsuit had been dismissed when a remaining defendant "opens the door" by introducing evidence relating to the earlier presence of that now-dismissed party? For reasons we shall explain, we answer both questions in the affirmative and affirm the Court of Special Appeals' judgment. FACTUAL AND PROCEDURAL BACKGROUND Mr. Busch At the time of trial, Mr. Busch was a 70-year-old retiree. He began his career as an apprentice steamfitter 4 in 1967 at a Baltimore construction company, Lloyd E. Mitchell ("Mitchell").

During his four years at Mitchell, he worked on at least four building projects in Baltimore and its surrounding area, *⁴⁸¹ alleging in the present litigation asbestos exposure at all four sites. 5 Mr. Busch left Mitchell in 1971 for Honeywell Corporation ("Honeywell"). He worked at Honeywell for 30 years, installing primarily thermostats, sensors, relay ¹¹⁷⁰ stations, fan control systems, and automatic temperature-control devices. Mr. Busch's work in this regard was typically one of the final phases of the construction process - when he performed work for Honeywell on construction sites, "most of the job sites were pretty much completed and finished ... [he was] the last one in there for the thermostats and controls." He testified at trial in the present case that he was exposed to asbestos at various job sites, including LRHS. 6 Mr. Busch left Honeywell in 2001 for a local construction firm, where he assumed the role of project manager and department head. He retired in 2016 when he was diagnosed with mesothelioma.

Loch Raven High School The general worksite at issue in this case was LRHS. The specific worksite for Mr. Busch was its boiler room. Mr. Busch worked in the boiler room at LRHS for approximately three or four months during the winter of 1971 and into the early spring of 1972. The boiler room contained two fifteen-foot by twenty-foot boilers.

The room measured forty-feet by forty-feet. Mr. Busch performed his usual work for Honeywell in close proximity to the boilers. Building specifications for LRHS called for magnesia blocks to be used to insulate the boilers. By weight, magnesia block contained up to 15% asbestos.

According to testimony, workers would cut the magnesia block into smaller, but still large, blocks before placing them around the boilers. This cutting *⁴⁸² created a "snow storm" of asbestos dust, which was inhaled inevitably by those nearby, including Mr. Busch, even though he wore a respirator. The cement mixture used to cover the magnesia block insulation contained asbestos as well. Pre-Trial Discovery Responses and Depositions Received in Evidence Mr. Busch, in response to pre-trial defense interrogatory requests, identified McCormick Asbestos Company (McCormick) and Georgia-Pacific, LLC, as the responsible sources of products leading to his asbestos exposure at LRHS.

He claimed that the asbestos-containing insulation products were "sold, supplied, and installed by McCormick[.]" 7 Additionally, he stated that he came in contact there with an "asbestos-containing joint compound manufactured, sold and supplied by Georgia-Pacific, LLC." Mr. Busch provided the names of two other Honeywell workers who had supposed personal knowledge of the asbestos exposure at LRHS - Richard Huettel ("Huettel") and Howard Sheppard ("Sheppard"). In response to Mr. Busch's interrogatories, WGAST produced a trove of documents 48 days before trial. 8 The documents supported the existence of a contractual relationship between W & G and Poole & Kent Co. ("Poole"). 9 Poole, as testified to later by Huettel in his deposition (which was received in evidence), was the mechanical contractor at LRHS. Poole's contractual obligations ¹¹⁷¹ included employing plumbers and steamfitters to install the piping systems for the LRHS boilers. The inferred contract between Poole and W & G provided $145,250.00 as the total consideration due to W & G *⁴⁸³ for its work at LRHS. 10 The job, referred to as Job #5679, called for W & G to insulate the "plumbing, heating and ventilating surfaces" at LRHS.

It is not crystal clear what constituted the "surfaces" or where most were located, but other documents indicated specifically that W & G, among other responsibilities, insulated "fire lines" in the boiler room at LRHS during the time Busch worked also in the boiler room. 11 Partial billing statements relating to Job #5679 were produced by WGAST. The first was from W & G to Poole, dated 16 February 1972. The statement indicated that W & G had "insulated various plumbing, heating and ventilating surfaces" at LRHS. The second, again relating to Job #5679, was sent on 15 May 1972.

These billing statements totaled less than $20,000.00, but stated that the total value of Job #5679 was $145,250.00. Timesheets for W & G insulators were produced regarding Job #5679. The timesheets revealed that their work at LRHS lasted from February to June 1972, and that the workers spent over 4,500 person-hours at LHRS during that period. Additional invoices, order forms, and shipment records produced by WGAST connected further W & G to Job #5679 in LRHS, but did not refer specifically to W & G with regard to asbestos-containing products used or installed at LRHS.

A "partial billing" for Job #5679 sent by W & G to A.C. MacDonald Inc. was the only document connecting directly W & G to work in the boiler room, as opposed to elsewhere at LRHS. This "partial billing" was for insulation work performed on fire lines in the boiler room. Construction specifications *⁴⁸⁴ for the fire lines in LRHS provided that fiberglass or "foamglass" shall be used as insulation for those lines. Neither fiberglass nor foamglass contained asbestos.

Trial & Direct Appeal Mr. Busch brought suit initially against seven defendants, alleging occupational exposure to asbestos-containing products resulting in his mesothelioma. 12 Three were dismissed prior to trial. Thus, by the time trial began, only four defendants remained. 13 At trial, Mr. Busch testified that he did not remember who installed, supplied, or manufactured the block insulation and cement used to insulate the boilers and pipes in the boiler room. 14 He produced competent evidence, however, if believed by the factfinder, demonstrating that the dust ¹¹⁷² created by the sawing of the insulation blocks contributed to his contracting mesothelioma. WGAST acknowledged that W & G insulators performed work at LRHS, but claimed that no evidence had been produced by Mr. Busch linking W & G to the asbestos-containing insulation used in the boiler room at LRHS. According to WGAST, the evidence placed W & G workers and products in the boiler room only for the limited purpose of insulating the fire lines, which insulation contained no asbestos.

Huettel's deposition, read into evidence by WGAST, revealed that he was a friend and co-worker of Mr. Busch. Huettel and Mr. Busch worked together closely at various jobsites, including LRHS, over an eight-year span. Consistent *⁴⁸⁵ with Mr. Busch's interrogatory answers (if not his trial testimony), Huettel's deposition testimony indicated that McCormick installed the asbestos-containing block insulation and cement on the boilers at LRHS. WGAST moved successfully into evidence also the deposition testimony of Sheppard.

Sheppard was an electrician who performed work at LRHS in 1970-71, before Busch worked at LRHS. Sheppard did not know Busch personally and testified only as a "general product identification witness." 15 In a vein similar to Huettel's testimony, Sheppard claimed that he saw McCormick workers apply asbestos-containing materials to insulate the pipes and boilers in the boiler room. Neither Huettel nor Sheppard identified W & G as responsible for this work or connected in any way W & G to the asbestos-containing insulation in the boiler room at LRHS. As noted earlier, at the close of all evidence, only WGAST and Georgia-Pacific remained as defendants.

The jury returned a verdict in favor of the Buschs against both defendants. The jury awarded Mr. Busch $318,528.33 for past medical expenses, $1,250,000.00 for past and future economic loss, and $10,000,000.00 for non-economic losses. Mrs. Busch was awarded $3,000,000.00 for loss of consortium. The total verdict was $14,568,528.33.

The circuit court reduced the verdict to $7,284,264.17 because of the effect of cross-claims against absent defendants. WGAST moved subsequently for JNOV, a new trial, and, in the alternative, remittitur. The circuit court denied all motions. WGAST appealed timely to the Court of Special Appeals. 16 The Court of Special Appeals affirmed.

The intermediate appellate court held first that sufficient evidence existed for the jury to infer that it was likely or probable that W & G performed the insulation work (with asbestos-containing products) *⁴⁸⁶ in the boiler room at LRHS during the time Mr. Busch worked in the boiler room. The intermediate appellate court held also, of relevance here, that the trial judge did not abuse her discretion in allowing the Buschs to inform the jury that McCormick had been dismissed as a defendant. I. WGAST contends that Mr. Busch did not present evidence sufficient to prove directly or by reasonable inference that he was exposed to asbestos-containing products manufactured, sold, or installed by W & G. Because of this deficiency, the issue of its potential liability was not proper to submit to the jury. ¹¹⁷³ STANDARD OF REVIEW We review a "trial court's decision to [ ] deny judgment or JNOV to determine whether it was legally correct[.]" Scapa Dryer Fabrics, Inc. v. Saville , 418 Md. 496 , 503, 16 A.3d 159 , 163 (2011) (internal citations and quotations omitted). We analyze the trial court's decision "viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party[.]" Id.

The denial of a JNOV will be upheld if there is "any evidence adduced, however slight ... from which reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented." Exxon Mobil Corp. v. Albright , 433 Md. 303 , 333, 71 A.3d 30 , 48, on reconsideration in part, 433 Md. 502 , 71 A.3d 150 (2013). DISCUSSION In an "asbestos case," a plaintiff must demonstrate first that his or her exposure to an asbestos-containing product was a substantial causative factor in the development of mesothelioma or other injury. Eagle-Picher Industries, Inc. v. Balbos , 326 Md. 179 , 210, 604 A.2d 445 , 460 (1992). We adopted in Balbos a "frequency, proximity, and regularity" standard, borrowed from the Fourth Circuit's decision in *⁴⁸⁷ Lohrmann v. Pittsburgh Corning Corp. , 782 F.2d 1156 , 1160 (4th Cir. 1986), by which to assess causation evidence in asbestos cases.

See Balbos, 326 Md. at 210 , 604 A.2d at 460 . Balbos involved consolidated tort actions brought by two former shipyard workers, both of whom inhaled asbestos fibers at the shipyards where they worked. Id. at 186 , 604 A.2d at 448 . Both men succumbed to mesothelioma.

At issue was the causal relationship between the co-defendants' asbestos products and the plaintiffs' exposure to it. Similar to the case at bar, both of the Balbos plaintiffs' direct work activities did not involve asbestos-containing products. Id. at 210 , 604 A.2d at 460 . As such, they were bystanders relative to the asbestos-related work or products.

Id. Regarding the bystander status of the plaintiffs, we observed: 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.

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. Id. Thus, a bystander plaintiff must prove that a defendant's asbestos-containing products were a substantial causative factor in the illness. He/she may do so by demonstrating that: (1) the product was used frequently; (2) he/she worked in close proximity to the product or products, in both distance and time period; and, (3) he/she was exposed regularly to the product or products.

No single factor is determinative. Maryland rejects what is known as the "fiber drift" theory of causation. In other words, "a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the *⁴⁸⁸ specific manufacturer's product." Reiter v. Pneumo Abex , LLC, 417 Md. 57 , 71, 8 A.3d 725 , 733 (2010) (internal quotations omitted). In Reiter , shipyard workers, diagnosed with asbestos-related maladies, alleged exposure to ¹¹⁷⁴ asbestos dust emitted from the braking mechanisms of cranes at their place of work.

The plaintiffs worked at a large facility, approximately the size of an airplane hangar. Id. at 70 , 8 A.3d at 733 . There were at least six cranes throughout the shipyard suspended approximately twenty-five to thirty feet in the air. Id. at 73-74 , 8 A.3d at 735 .

We affirmed the circuit court's grant of summary judgment because the plaintiffs did not produce evidence that placed the defendant's asbestos products at the specific site within the shipyard where the plaintiffs worked. Id. (stating "[e]vidence that some [of the defendant's asbestos] products were used somewhere in the 480-acre tin mill does not establish that [the defendant's asbestos] product was on the crane that was in the 50 square feet where Mr. Reiter 'actually worked.' "). Pertinent to this case, we described "the 'specific site' where each decedent worked was the limited area in the facility where the decedent was located on a day-to-day basis.

While a "boiler room" ... may constitute a specific site , a factory the size of an airplane hangar does not." Id. (emphasis added). 1. Was there sufficient evidence presented to hold liable W & G for the asbestos-containing products in the boiler room at LRHS? The crux of WGAST's question on appeal is whether it was demonstrated sufficiently at trial to submit to the jury the question of whether W & G was responsible for installing the asbestos-containing products in the boiler room at LRHS.

WGAST contends that the judgments of the circuit court and Court of Special Appeals represented a "game-changing departure from established Maryland legal principles" in concluding that "a reasonable jury could have inferred permissibly that W & G was the primary, if not the only, insulation contractor present during the construction of LRHS, and, therefore, that W & G was responsible for the installation of *⁴⁸⁹ asbestos-containing insulation in the boiler room." Wallace & Gale Asbestos Settlement Trust , 238 Md. App. at 710 , 194 A.3d at 409 . Further, it avers that, because Mr. Busch presented no direct evidence at trial connecting W & G to the asbestos-products in the boiler room or, for that matter, anywhere at LRHS, the jury verdict as to its liability amounted to mere speculation. It concludes its trifecta of arguments with a policy plea - allowing a defendant to be held liable based on its mere substantial presence in or at a larger workplace is akin to a market-share theory of liability, an approach rejected in Maryland. We conclude, as did the Court of Special Appeals, that the evidence presented at trial regarding W & G's work at LRHS was sufficient to allow the case to go to the jury and for the jury to conclude that W & G was liable.

The trial judge assessed whether a reasonable jury could conclude that the preponderance standard was met. Under that standard, she was tasked to determine whether Mr. Busch presented sufficient evidence to allow the jury to determine if it was more likely than not that W & G performed the insulation work in the boiler room with asbestos-containing products. Circumstantial evidence was presented such that a reasonable factfinder could have found by a preponderance of the evidence that W & G performed the asbestos insulation work in the LRHS boiler room. The Buschs moved successfully into evidence numerous documents relating to W & G's work at LRHS, including, but not limited to: time sheets showing that W & G spent over 4,500 person-hours in the construction at LRHS; partial billing statements for Job #5679 indicating that W & G had insulated plumbing and heating surfaces at LRHS; invoices reflecting partial ¹¹⁷⁵ payment for work performed at LRHS; and, partial invoices for the fire lines work W & G performed in the boiler room. 17 The nature of the documents produced during discovery *⁴⁹⁰ suggested that document production regarding W & G's work at LRHS was fragmentary.

For instance, although timesheets produced indicated that W & G spent over 4,500 person-hours at LRHS and the total value of the job was $145,250.00, invoices reflected only a partial payment for $20,000.00. This is either indicative of an enormous write-down, or, more plausibly, gaps in the production of documents in pretrial discovery regarding the LRHS job. 18 Viewing the evidence in the light most favorable to Busch, a reasonable factfinder could have inferred that W & G was more likely than not responsible for all of the insulation work at LRHS during the time Mr. Busch worked in the boiler room. First, it is not a hyper-extended stretch for the trial jury to draw an inference that W & G was the primary, if not only, insulation contractor working in LRHS. 19 A reasonable jury could have reached that conclusion from facts such as W & G's apparently broad contractual undertaking for "insulat[ing] various plumbing, heating and ventilating surfaces" and the thousands of hours W & G spent working at LRHS. Additionally, other documentation put W & G in the boiler room performing insulation work on the fire lines, albeit with insulation free of asbestos.

As this reasoning goes (especially in the absence of any reason suggested for why another insulation contractor may have been hired or was necessary to perform the limited task of insulating the boilers with asbestos-containing insulation), an inference could be drawn reasonably *⁴⁹¹ that it was unlikely that another insulation contractor would be hired for the limited objective of insulating the boilers with asbestos-containing product where W & G had a building-wide insulation contract and was performing some insulation work in the boiler room, albeit not involving asbestos-containing insulation. WGAST argues that not one piece of direct evidence placed Mr. Busch in the same location at the same time that W & G used an asbestos-containing product in that space, so the jury's verdict amounted to impermissible speculation. In asbestos cases, however, circumstantial evidence (and reasonable inferences available therefrom) can be sufficient to establish exposure, and liability. See Scapa Dryer Fabrics, Inc. , 418 Md. at 511 , 16 A.3d at 167 ; see also Balbos , 326 Md. at 210 , 604 A.2d at 460 .

Based on the evidence highlighted above, the jury was entitled to infer that W & G was likely the insulator responsible for the asbestos-containing products in the LRHS boiler room. ¹¹⁷⁶ WGAST likens the use of circumstantial evidence and inferences here to a market-share liability approach. A market-share liability approach apportions liability among manufacturers based on their respective share of the market for the injury-causing product. WGAST points out correctly that Maryland rejects such an approach in asbestos cases. See, e.g., Reiter, 417 Md. at 65 , 8 A.3d at 730 (stating that market-share liability is not recognized under Maryland law).

WGAST's argument that the courts considering this litigation before us applied an improper market-share liability theory conflates inappropriately consideration of W & G's substantial presence in LRHS with W & G's share of the asbestos-containing products market. Indeed, W & G performed a substantial amount of work at LRHS. Market-share liability, however, is premised on a manufacturer's share of the marketplace for a product, not its presence on, or "share" of, a single construction job site. Mr. Busch (in his interrogatory answers), Huettel, and Sheppard (in their depositions read into evidence) testified, to *⁴⁹² varying degrees of certitude, that McCormick was the contractor responsible for the asbestos-containing insulation installed in the LRHS boiler room.

WGAST sees this testimony as exonerating W & G. Because of this, the Court of Special Appeals erred in ruling that the jury was free to disregard this evidence and rely instead on other and more attenuated evidence that was arguably more generous to Mr. Busch's claim. WGAST points to cases, many from foreign jurisdictions, to support this notion. In essence, WGAST argues that because the testimony that McCormick installed the asbestos-containing insulation was uncontroverted, the trial court should have granted JNOV. We are not persuaded by this argument.

Although there was evidence which identified McCormick as the manufacturer and installer of the asbestos-containing insulation in the boiler room, other evidence was presented that permitted a reasonable judge or factfinder to infer otherwise. For the reasons explained supra , the question of W & G's liability was a close enough question to present to the jury for consideration. A reasonable jury could have inferred that W & G performed the asbestos insulation work in the boiler room at LRHS, the dust from which was a substantial causative factor in Mr. Busch's mesothelioma. Thus, the Buschs shall prevail with their "horseshoes and hand-grenades" body of evidence.

II

WGAST's second contention on appeal is that the circuit court erred in informing the jury that McCormick had been dismissed from the lawsuit. As noted earlier, Mr. Busch included McCormick as one of seven original co-defendants to the lawsuit. To set the stage, we shall attempt first to make clear McCormick's involvement in, and ultimate disengagement from, this litigation, and then address WGAST's argument on its merits. It is not unusual for an asbestos lawsuit to be brought against multiple defendants.

As such a case proceeds, and *⁴⁹³ more information is uncovered in the pre-trial stage (and even during trial), it is common for some defendants to be dismissed or otherwise "disappear" from the proceedings before the case is sent to the jury. Additionally, it is not uncommon for co-defendants to file cross-claims against each other. Here, Mr. Busch brought suit initially against seven entities, including McCormick and WGAST. WGAST asserted cross-claims against McCormick, alleging that McCormick was responsible for insulating the boilers at LRHS using asbestos-containing insulation.

Despite this, McCormick ¹¹⁷⁷ was not a party when the case was given to the jury. It had been dismissed from the proceedings, before trial commenced, by the grant of an unopposed summary judgment motion because no party could identify sufficient and competent evidence upon which it could be surmised that McCormick performed any work or supplied any product involving asbestos insulation regarding the LRHS boilers. At trial, WGAST caused to be admitted into evidence various documents, including Busch's original Complaint, which listed all of the original defendants. WGAST moved successfully into evidence also historical Baltimore City Asbestos Personal Injury Master Complaints and Amendments by Interlineation, dating from the late 1980s and early 1990s.

These documents included excerpts from: • Master Complaint from In Re: Personal Injury Asbestos Cases CT-2 Trades Cases , dated 10 July 1987; • Amendment by Interlineation to Master Complaint from In Re: Personal Injury Asbestos Cases, CT-1 Trades Cases, CT-2 Bethlehem Steel Case, CT-3 Railroad Cases, CT-4 Other Asbestos Cases, and CT-5 Shipyard Cases , dated 4 April 1989; • Amended Master Complaint from In Re: Personal Injury Asbestos Cases, CT-1 Trades Cases , dated 20 June 1990; • Amendment by Interlineation to Master Complaint filed in In Re: Personal Injury Asbestos Cases, CT-1 Trades Cases , dated 12 November 1990; *⁴⁹⁴ • Amendment by Interlineation to Master Complaint from In Re: Personal Injury Asbestos Cases, CT-1 Cases , dated 5 February 1991; • Amendment by Interlineation to Master Complaint filed in In Re: Personal Injury Asbestos Cases, CT-1 Trades Cases , dated 27 February 1991; and, • Amendment by