Wallace & Gale Asbestos Settlement Trust v. Carter

WATTS, J. Appellant, the Wallace & Gale Settlement Trust, appeals verdicts rendered against it by a jury sitting in the Circuit Court for Baltimore City, as to claims of survival and wrongful death in four cases consolidated for trial, in favor of: (1) in the ⁴⁹² Carter case, plaintiffs, Sonia Carter and the Estate of Rufus Carter, and use plaintiffs, Rufus Carter, Jr., Kenneth Carter, and Natasha Sloan; (2) in the James case, plaintiff, the Estate of Levester James, and use plaintiffs, Katherine James, Monica James, and Kevin James; (3) in the Laurrence case, plaintiffs, Bernice Lawrence and the Estate of Mayso Lawrence, Sr., and use plaintiffs, Elaine McPherson, Mayso Lawrence, Jr., Phaedra Bailey, Tyrone Lawrence, Cephus Lawrence, Sean Lawrence, and Tanesha Lawrence; and (4) in the Hewitt case, plaintiffs, Annette Hewitt, Roger Hewitt, Jr., and the Estate of Roger Hewitt, and use plaintiffs, Idalyn Williams and Penny Hewitt. 1 Following trial, appellant moved for judgment notwithstanding the verdict or for remittitur or new trial, which the circuit court denied. Appellant noted an appeal raising three issues, which we quote: I. Did the circuit court err in allowing substantial damage awards to fifteen “use plaintiffs” who never joined any case prior to verdict?

II

Did the circuit court err in the Hewitt case by rejecting allocation of damages according to the respective harm caused by smoking and exposure to asbestos?

III

Did the circuit court err in instructing the jury that suppliers and installers have a duty to inspect, analyze, and test any product that they supply or install? For the reasons set forth below, we answer questions I and II in the affirmative and question III in the negative. We, therefore, reverse and vacate the judgments entered against appellant in favor of the use plaintiffs, concluding that the ⁴⁹³ statute of limitations now bars the use plaintiffs from bringing wrongful death claims. As to the Hewitt case, we reverse the judgments entered against appellant in favor of the plaintiffs, and remand for a new trial.

We affirm the judgments entered against appellant in favor of the plaintiffs in the Carter case, the James case, and the Lawrence case. FACTUAL AND PROCEDURAL BACKGROUND (1) The Parties and Cases (a) Wallace & Gale, Incorporated (“W & G”) Established in 1881, W & G was a Baltimore-based insulation and roofing contractor that installed asbestos-containing products for various companies, including Bethlehem Steel and American Smelting & Refining Company (“ASARCO”). On November 16, 1985, W & G filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 17, 2001, the United States Bankruptcy Court for the District of Maryland entered an order confirming the Fourth Amended Joint Plan of Reorganization under Chapter 11 of the United States Bankruptcy Code, creating appellant, an entity that assumed W & G’s liabilities resulting from asbestos claims.

On November 2, 2010, the United States Bankruptcy Court for the District of Maryland approved the “Second Amended and Restated Asbestos BI Claims Resolutions Procedures.” Section 5.4(b) of the Procedures provided for the tolling of the statute of limitations applicable to claims against appellant. Pursuant to Section 5.4(b), claims accruing after the petition date, November 16, 1985, and prior to the implementation date, August 26, 2009, were required to be brought against appellant before: (1) the expiration of the ninety-day period immediately following the date that the Claims Materials were made publicly available to claimants, September 28, 2010, or (2) the expiration of the statute of limitations applicable to the claim, whichever was later. ⁴⁹⁴ (b) The James Case On January 5, 2007, Willean Peoples (“Peoples”), Levester James’s (“James”) stepdaughter, as personal representative of James’s estate, filed a short form asbestos complaint against numerous defendants, including appellant, containing counts of negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. Peoples alleged that James had been employed as a laborer at ASARCO from 1968 to 1972, and that, on July 4, 2004, James died from lung cancer. The case caption on the short form complaint identified the following use plaintiffs: Katherine, James’s surviving spouse, Kevin, James’s surviving son, and Monica, James’s surviving daughter.

(c) The Lawrence Case On February 21, 2008, Arthur L. Drager (“Drager”), as personal representative of Mayso A. Lawrence, Sr.’s (“Lawrence”) estate and Bernice, as Lawrence’s surviving spouse, filed a short form asbestos complaint against numerous defendants, including appellant, containing counts for negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. The complaint alleged that Lawrence worked as a laborer at ASARCO from 1968 to 1969, and as a laborer and machine operator at Bethlehem Steel from 1970 to “later into the” 1970s. On October 8, 2007, Lawrence died from lung cancer. The case caption on the short form complaint listed the following use plaintiffs: Elaine, Mayso Jr., Tyrone, Phaedra, Cephus, Sean, and Tanesha, Lawrence’s four sons and three daughters.

(d) The Carter Case On February 17, 2006, Johanna Carter, as personal representative for Rufus E. Carter’s (“Carter”) estate, and Sonia, as Carter’s surviving daughter, filed an amended short form complaint against numerous defendants including appellant, incorporating the counts set forth in the original complaint— loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud, and adding a count alleging wrong ⁴⁹⁵ ful death. Johanna alleged that Carter had been employed as a laborer and crane operator at ASARCO from 1966 to 1975. On November 6, 2003, Carter died from lung cancer. The case caption on the amended short form complaint listed the following use plaintiffs: Kenneth and Rufus Jr., Carter’s sons, and Natasha, Carter’s daughter.

On March 7, 2006, Sonia filed a Notice to Substitute Parties, advising that Johanna had been removed as the personal representative of Carter’s estate and that Sonia had been appointed as successor personal representative of Carter’s estate. Sonia notified the circuit court and the parties that she, as successor personal representative, was substituted as the party plaintiff in the survival action. (e) The Hewitt Case On September 7, 2006, Roger C. Hewitt, Sr. (“Hewitt”) and Annette Hewitt filed a short form asbestos complaint against numerous defendants alleging that Hewitt had been diagnosed with “asbestosis and asbestos-related diseases” in April 2006. Hewitt alleged that he was exposed to asbestos through his work as a laborer, mechanic steamfitter and pipe fitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel from 1946 to the late 1970s.

On January 5, 2007, the plaintiffs filed an Amendment by Interlineation, adding appellant as a defendant. On December 20, 2008, Hewitt died of pneumonia. On January 23, 2009, Roger Jr. filed a Notice to Substitute Parties, notifying the circuit court and the parties that he, as personal representative of Hewitt’s estate, was substituted as a party plaintiff in the survival action. On July 24, 2009, Annette, as surviving spouse of Hewitt, and Roger Jr., as personal representative of Hewitt’s estate, filed an amended short form complaint, incorporating the counts set forth in the original complaint-loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud, and adding a count alleging wrongful death.

The case caption on the amended short form complaint identified the following use plaintiffs: Penny and Idalyn, surviving daughters. ⁴⁹⁶ On the same day, July 24, 2009, Roger Jr. filed an Amendment by Interlineation to Add Disease Process, alleging that recent medical records indicated that, in addition to asbestosis, Hewitt had also suffered from lung cancer causally connected to his exposure to asbestos and asbestos products. (2) Pre-Trial Proceedings On November 10, 2009, the circuit court consolidated the four cases for trial, scheduled to begin on January 18, 2011. (a) Answers to Interrogatories In three of the cases—the James, Lawrence, and Carter cases—personal representatives filed answers to interrogatories, referring to themselves as the singular “Plaintiff.” In the Hewitt case, plaintiff Roger Jr. filed answers to interrogatories. Throughout the answers to interrogatories, Roger Jr. is referred to as the singular “Plaintiff.” In one answer, Roger Jr. stated that Hewitt smoked approximately one-half to one pack of cigarettes per day from approximately 1943 to approximately 2008.

(b) Proposed Voir Dire On December 20, 2010, approximately one month before the start of trial, the plaintiffs filed proposed voir dire. As to plaintiffs, question 2 of the proposed voir dire asked the following: Is any member of the panel or any member of your immediate family, or close circle of friends related to or otherwise acquainted with the plaintiffs: Rufus E. Carter Sonia Carter (PR & Child) Johanna Carter (Spouse) Kenneth Carter (Child) Rufus Carter, Jr. (Child) Natasha Sloan (Child) *** Roger C. Hewitt, Sr. Roger C. Hewitt, Jr. (PR & Child) Annette Hewitt (Spouse) ⁴⁹⁷ Levester James Willcan Peoples (PR & Child) Katherine James (Spouse) Monica James (Child) Tony James (Child) Mayso A. Lawrence, Sr. Arthur L. Dragcr, Esq. (PR) Bernice Lawrence (Spouse) Elaine L. McPherson (Child) Mayso Lawrence, Jr. (Child) Tyrone Lawrence (Child) Tanesha Lawrence (Child) Pha[e]dr(]a Bailey (Child) Ceph[u)s Lawrence (Child) Sean Lawrence (Child) (c) Pre-Trial Motions On January 3, 2011, appellant filed a motion to exclude fact witnesses not produced for discovery deposition. Asserting that trial was scheduled to begin in two weeks and that its ability to prepare a defense had been “significantly and unfairly prejudiced[,]” appellant requested that the circuit court exclude all fact witnesses not offered for deposition by October 18, 2010, from testifying at trial.

The circuit court denied the motion to exclude and continued the trial for three weeks. During the three week continuance, appellant’s counsel conducted approximately thirty depositions of family members, including some of the individuals identified as use plaintiffs. (3) Trial Generally A jury trial was held from February 9, 2011, to February 11, 2011, February 14, 2011, to February 18, 2011, February 22, 2011, to February 25, 2011, and February 28, 2011, to March 2, 2011. (a) Voir Dire On February 9, 2011, during the morning session of voir dire, the circuit court asked the following questions as to the plaintiffs in the case: The plaintiffs in the case are Rufus Carter, Roger Hewitt, Levester James, Mayso Lawrence.

Do any of you know any of these folks? Any of you know them? ⁴⁹⁸ During the afternoon session of voir dire, the circuit court again identified the plaintiffs in the case as Rufus Carter, Roger Hewitt, Levester James, and Mayso Lawrence. (b) Opening Statements In opening statement, plaintiffs’ counsel identified the plaintiffs in the case as follows: Good morning, Ladies and Gentlemen of the Jury----I, along with my co-counsel, represent the four plaintiffs and families in this matter. The plaintiffs are Levester James, Rufus Carter, Roger Hewitt and Mayso Lawrence.

(c) Apportionment in the Hewitt Case Hewitt was a crane operator who worked at Bethlehem Steel from 1946 to the late 1970s. Hewitt was a cigarette smoker who smoked a half a pack to a pack per day. Hewitt was diagnosed with lung cancer in October 2008, and died on December 20, 2008, at eighty-one years old. At trial, Dr. Steven Zimmet testified that asbestos exposure was a substantial contributing cause to Hewitt’s lung cancer, and that smoking was also a cause of Hewitt’s lung cancer.

According to Dr. Zimmet, he could not differentiate “which caused what” because the two exposures are “not just additive, they are synergistic which means they multiply exposures.” At trial, appellant conceded that Hewitt had asbestosis and that asbestos had contributed to his lung cancer. Appellant’s counsel requested that the circuit court permit apportionment of damages, and appellees’ counsel objected, arguing that trial courts have never addressed the apportionment of damages for smoking, and that it would not be possible to apportion anyway. Appellant’s counsel responded that there was a “strong foundation” for apportionment and that its expert, Dr. Gerald R. Kerby, would render an opinion that apportionment of damages is possible based on epidemiology studies and other scientific studies. The circuit court expressed doubt that the damages could be apportioned, commenting: ⁴⁹⁹ No, I understand there is statistical basis for likelihood of risk.

But in a given—with a given plaintiff, I don’t know how you can apportion it. But, you know, I guess, the witness can say what he says if he is qualified to say it. But I’m not going to give an instruction on this because it is not—I don’t perceive it at this point to be the law in these type of cases. You can apportion risk.

I don’t know how, in an individual plaintiff’s] case, you can apportion damages. I don’t know. It is a mystery to me. We’ll find out.

This doctor will show up, and we’ll hear about it. Subsequently, appellant’s counsel filed an offer of proof regarding Dr. Kerby’s testimony, which provided, in pertinent part, as follows: 1. Dr. Kerby has reviewed the [Hewitt] case including Mr. Hewitt’s medical records, currently in evidence as Defendant’s Exhibit no. 6, x-rays and Plaintiffs Answers to Defendants’ Master Interrogatories, attached hereto as Defendant’s Exhibit No. 1 for identification. 2. Based on a review of the information contained in Paragraph No. 1, Dr. Kerby understands that Mr. Hewitt was occupationally exposed to asbestos from 1943 to 1978 while working for the Pennsylvania Railroad and Bethlehem Steel Sparrows Point Steel Mill.

Further, Dr. Kerby understands, based on the information contained in Paragraph No. 1 herein, that Mr. Hewitt smoked cigarettes from 1943 to 2008 at a rate of 1/2 pack to 1 pack per day. 3. Based on a review of the information contained in Paragraph No. 1 herein, Dr. Kerby is aware that Mr. Hewitt developed lung cancer in October 2008 and died on December 20, 2008 as a consequence of the lung cancer. 4. Based on his review of Mr. Hewitt’s medical records and x-rays identified in Paragraph No. 1, Dr. Kerby is of the opinion that Mr. Hewitt had pulmonary asbestosis and as a result, Mr. Hewitt’s history of occupational exposure to ⁵⁰⁰ asbestos was a substantial contributing factor to the development of Mr. Hewitt’s lung cancer and death therefrom. 5. Further, based on his review of the information contained in Paragraph No. 1, Dr. Kerby is also of the opinion that Mr. Hewitt’s cigarette smoking history was also a substantial contributing factor to the development of Mr. Hewitt’s lung cancer and death therefrom. 6.

Dr. Kerby is of the opinion that there is a reasonable medical and scientific basis for determining the relative contributions of Mr. Hewitt’s cigarette smoking history and Mr. Hewitt’s occupational history of asbestos exposure to the development of Mr. Hewitt’s lung cancer and death therefrom. 7. The reasonable medical and scientific basis for determining the relative contributions of Mr. Hewitt’s cigarette smoking history and occupational history of asbestos exposure to the development of his lung cancer and death therefrom is derived from epidemiologic studies concerning asbestos, cigarette smoking and the risk of lung cancer. 11. Based on the foregoing, Dr. Kerby, if permitted, would opine that the relative contribution of Mr. Hewitt’s cigarette smoking history to the development of his lung cancer and resultant death was 75%. 12. Based on the foregoing, Dr. Kerby, if permitted, would opine that the relative contribution of Mr. Hewitt’s history of occupational exposure to asbestos (in the setting of asbestosis) to the development of his lung cancer and resultant death was 25%.

The circuit court accepted the offer of proof, but excluded Dr. Kerby’s testimony concerning apportionment of damages, stating: “It is just this effort to apportion doesn’t really work for me. It doesn’t make any sense[.]” Appellant’s counsel offered Dr. Kerby as an expert in pulmonary medicine and the historical development of knowledge in the medical and scientific community regarding asbes ⁵⁰¹ tos and disease. The circuit court accepted Dr. Kerby as an expert in those areas with no objection from the plaintiffs. (d) Use Plaintiffs At the conclusion of the plaintiffs’ case, appellant filed a Motion for Directed Verdict Based on the Statute of Limitations, arguing, in pertinent part, as follows: Plaintiffs in the [James ] and [Carter ] cases failed to join all necessary parties to the action as required under Maryland Rule 15-1001.

Certain “use” plaintiffs—e.g., those not joined in the action-were never properly added to these cases. In both cases, plaintiffs listed “use” plaintiffs for the decedent’s family members when filing their wrongful death actions. At trial, plaintiffs have called the “use” plaintiffs to present evidence as to their wrongful death claims against [appellant]. The “use” plaintiffs were never amended into the Plaintiffs’ complaints and limitations has run.

Plaintiffs are now precluded from amending their complaints to add necessary parties. [Appellant] is therefore entitled to directed verdict as to the claims of the “use” plaintiffs. (Citation omitted). Appellant requested that the circuit court “find that the current wrongful death claims for ‘use’ plaintiffs Katherine James, [Kevin] James, Monica James, Kenneth Carter, Rufus Carter, Jr., and Natasha Sloan [were] improper” and time barred. At the conclusion of the plaintiffs’ case, appellant’s counsel orally moved for judgment “against all the plaintiffs cases on all the respective counts.” Appellant’s counsel argued, in pertinent part, that the use plaintiffs failed to join the action as “necessary parties,” and that the use plaintiffs were identified only to give them notice of the action.

The circuit court denied the motion for judgment with leave for appellant’s counsel to renew the motion at the close of all the evidence. After the close of all of the evidence, appellant’s counsel renewed the motion for judgment. As to the issue of the use plaintiffs, the circuit court observed the following: ⁵⁰² To my mind, usually a use plaintiff sues filing in one person’s name for use of another person. And that’s usually been where I bump into it.

So that implies that someone has a fiduciary relationship and someone else is supposed to be serving their interest. But that’s not what goes on here. The circuit court commented: “What is the harm of leaving them in, let them render a judgment, that way if it goes up on appeal and they happen to be right—it doesn’t matter whether they are right, if they happen to convince several people that they are right, then there is no—they have to go back and retry the use plaintiffs.” The circuit court reasoned that it was best to include the use plaintiffs on the verdict sheets because if it decided appellant’s counsel was correct, then it could “just strike all the verdicts against the use plaintiffs and it goes up on appeal and they can deal with it however they choose to deal with it.” (e) Verdict Sheets On February 23, 2011, appellant filed proposed revised verdict forms for the four cases. In the Hewitt case, the proposed verdict form contained questions concerning apportionment, including the following: 6.

Do you find by a preponderance of the evidence that the compensatory damages of the Estate of Roger Hewitt can be apportioned between cigarette smoking and asbestos exposure? YES_NO_ [If YES, answer 6a and 6b below. If NO, go to question 7] 6a. What percent of the Estate of Roger Hewitt’s compensatory damages are related to Mr. Hewitt’s cigarette smoking? _% 6a.

What percent of the Estate of Roger Hewitt’s compensatory damages are related to Mr. Hewitt’s asbestos exposure[?] _% ⁵⁰³ 7. What amount of compensatory damages, if any, do you award Annette Hewitt, widow of Roger Hewitt, as a result of the death of Mr. Hewitt? 8. Do you find by a preponderance of the evidence that the compensatory damages of Annette Hewitt can be apportioned between cigarette smoking and asbestos exposure? YES_NO_ [If YES, answer 8a and 8b below.

If NO, go to question 9] 8a. What percent of [ ] Annette Hewitt’s compensatory damages are related to Mr. Hewitt’s cigarette smoking? _% 8b. What percent of Annette Hewitt’s compensatory damages are related to Mr. Hewitt’s asbestos exposure[?] _% After the close of all of the evidence, plaintiffs’ counsel addressed the verdict sheets and apportionment, stating: “I am concerned about the verdict sheets. If Your Honor ruled, I would ask if [appellant’s counsel] is going to do the verdict sheets that the apportionment part come out and that each of the wrongful death claimants be listed.” The circuit court agreed.

As a result, in the Hewitt case, no question concerning apportionment was included on the verdict form. (f) Jury Instructions Prior to the court instructing the jury, the parties discussed jury instructions. Appellant’s counsel objected to instruction number 28, titled “state of the art,” arguing: I think the objection we have is the last language here at the end, manufacturer, supplier-installer, particularly we’re talking about supplier-installers have a duty to test, analyze, inspect. ⁵⁰⁴ And for the reasons we already discussed, that wouldn’t be appropriate. The circuit court overruled the objection.

Appellant requested a jury instruction concerning apportionment of damages in the Hewitt case, which read as follows: If you decide that plaintiff suffered from an asbestos-related lung disease for which the defendant is responsible, and that plaintiff had a history of smoking and/or tobacco exposure, and that plaintiffs asbestos exposure and plaintiffs smoking history and/or tobacco exposure were both substantial contributing factors in the development of plaintiffs lung disease, then you shall apportion the damages between plaintiffs asbestos exposure and plaintiffs smoking history/tobacco exposure. This apportionment of damages should be based on the percentage you believe each factor contributed to plaintiffs lung disease. The circuit court declined to give the requested instruction on apportionment, ruling: It is just not the law in these cases. But I understand the theory.

Although it does strike me, with all due respect. It is kind of a very unscientific wild guess you’re asking the jury to make. I mean, there is no real basis in the record, nor could there ever be. After the close of all the evidence, the circuit court instructed the jury, in pertinent part, as follows: The duty of the non manufacturer supplier to warn plaintiffs is different under some circumstances than the duty of a manufacturer.

In general, the supplier-installer is not held to a standard as strict as imposed on the manufacturer. If, however, that you find—if, however, you find that the plaintiffs’ claim against the supplier-installer is based upon claimed exposure to the installation or application of asbestos-containing products by the defendant, then the installer-supplier has the duty to warn the plaintiff of the dangers of which the installer-supplier was actually then aware or which it should have discovered in light of its particular ⁵⁰⁵ skill, knowledge, or expertise gained in the course of handling or installing such products. When a seller or other manufacturer is nothing more than a conduit between manufacturer and customer, the retailer or supplier ordinarily has no duty to discover the defects or dangers of a particular product. However—pardon me.

However, if the installer-supplier does something more than merely act as a conduit of goods, then those additional acts may impose a higher standard of care. If you find the installer-supplier not only supplied asbestos products to various job sites, but also that its employees installed these products, and if you further find the installer created a danger to other workers, that may impose upon the installer-supplier a duty to discover the products were dangerous by reading the literature that was available at the time. You may consider what reasonably should have been discovered in light of the supplier and installer’s particular oppor—peculiar opportunity and competence as a dealer in a particular product. As to strict liability only, strict liability does not apply where the predominant purpose of the defendant’s conduct was provision of a service rather than sale of the good.

If you find the predominant purpose of the defendant’s product at work in which it used any asbestos-containing building materials was the provision of a service only rather than a sale of goods, then you must find in favor of the defendant as to the plaintiffs’ claim of strict liability. State of the art. You heard a lot of discussion about state of the art. Under both negligence and strict liability theories, the manufacturer is held to the knowledge of and skill of an expert.

The manufacturer’s status as an expert means that, at a minimum, the manufacturer must keep abreast of ⁵⁰⁶ scientific knowledge, discoveries, and advances, and is presumed to know what is imparted thereby. Industry standards and the state of the art are not synonymous. State of the art includes all available knowledge on a subject at a given time. This includes scientific, medical, engineering, and other knowledge that may be available.

State of the art includes the amount of time, what was known, when was this knowledge available. The manufacturer supplier or installer is under a duty to use ordinary care to test, analyze, and inspect the products it sells, installs, or uses—sells, supplies, or installs. I’m sorry. Efficacy of warning.

If a warning would not have prevented the harm from occurring, then a defendant who failed to warn is not responsible because the absence of a warning could not have been or would not have been the cause of the injury. Considering this issue may—you may presume that people ordinarily exercise—pardon me—that people exercise ordinary care for their own safety. Presumption of due care arises from the natural instinct of human beings to guard against danger, namely the known and ordinary disposition of people to guard themselves from danger or risk. It is therefore presumed that if a warning is given, it will be read and heeded.

(Emphasis added). At the end of jury instructions, appellant’s counsel excepted to several instructions, arguing: I would like to make an objection on the record now about the particular item, No. 24, Your Honor, the duty to inspect. It wasn’t plead by the plaintiff. There’s no duty from the supplier-installer regarding design, manufacture, testing or inspection. ⁵⁰⁷ Furthermore, you read it in regard to manufacturer.

I think it is confusing to the jury. Next, 28 state of the art, they did not plead failure to analyze test or inspect. There is no duty to analyze, test, or inspect, and it did not include the nonobscure literature reference this time. And lastly, just to reserve under the apportionment of damages you had a prior ruling so obviously it wasn’t read but.

One additional one, Your Honor. To the extent that the instructions as a whole are referring to plaintiffs as plaintiffs, wherein we contest that use plaintiffs had not been joined to this action and had claims said in this action, I want to register an objection now because it just conferred plaintiffs status to the jury for use plaintiffs. The circuit court noted the exceptions, but took no further action. (g) Verdicts and Judgments The jury returned verdicts in favor of the plaintiffs and use plaintiffs, in the following amounts: (1) James case— $2,035,684.71; (2) Lawrence case—$2,930,532.09; (3) Carter case—$2,017,302.50; and (4) Hewitt case—$2,686,686.07.

On May 12, 2011, the circuit court entered orders in the four cases reducing the jury verdicts after application of the cap on non-economic damages, bankruptcy settlement payments, and joint tortfeasor credit for appellant’s cross-claims against another defendant (i.e. pro rata share allocation). The jury verdicts were reduced to the following judgments: ⁵⁰⁸ (1) James case Survival $503,959.39 (total) Wrongful death $476,250.50 (total) Use Plaintiff Katherine James $238,125.50 Use Plaintiff Monica James $119,062.50 Use Plaintiff Kevin James $119,062.50 Total Judgment: (2) Lawrence ease $980,209.89 Survival $261,371.24 (total) Wrongful death $521,250 (total) Plaintiff Bernice Lawrence $108,593.74 Use Plaintiff Elaine McPherson $ 32,578.13 Use Plaintiff Mayso Lawrence, Jr. $ 32,578.13 Use Plaintiff Phaedra Bailey $ 32,578.13 Use Plaintiff Tyrone Lawrence $ 32,578.13 Use Plaintiff Cephus Lawrence $ 32,578.13 Use Plaintiff Sean Lawrence $ 32,578.13 Use Plaintiff Tanesha Lawrence $217,187.48 Total Judgment: (3) Carter case $782,621.24 Survival $499,953.41 (total) Wrongful death $476,250 (total) Plaintiff Sonia Carter $119,062.50 Use Plaintiff Rufus Carter, Jr. $119,062.50 Use Plaintiff Kenneth Carter $119,062.50 Use Plaintiff Natasha Sloan $119,062.50 Total Judgment: (4) Hewitt case $976,203.41 Survival $ 687,394 (total) Loss of consortium $ 169,050.97 (total) Wrongful death $ 469,050.98 (total) Plaintiff Annette Hewitt $ 172,808.26 Plaintiff Roger C. Hewitt, Jr. $ 98,747.58 Use Plaintiff Idalyn Williams $ 98,747.57 Use Plaintiff Penny Hewitt $ 98,747.57 Total Judgment: $1,325,495.95 ⁵⁰⁹ On November 30, 2011, and December 1, 2011, the circuit court issued notices of recorded judgments. (4) Post-Trial Motion and Rulings Appellant filed a Motion for Judgment Notwithstanding the Verdict, Motion for New Trial, and Motion for A Remittitur (the “post-trial motion”), again raising the issue of the use plaintiffs, apportionment in the Hewitt case, and issues as to the jury instructions. As to the issue of apportionment in the Hewitt case, appellant argued that the circuit court erroneously refused to instruct the jury as to apportionment and excluded the expert testimony of Dr. Kerby.

Appellant asserted that Maryland law generally recognizes apportionment of damages in tort cases where the criteria set forth in the Restatement are satisfied. According to appellant, “Dr. Kerby’s proffered testimony satisfied the Restatement’s requirements for allowing the jury to apportion damages between the two causes.” In a response to the post-trial motion, as to the apportionment of damages in the Hewitt case, appellees contended that Hewitt’s lung cancer was an indivisible injury, and that appellant’s request was actually a request to apply comparative fault, which has “been refused both in [Maryland] courts and by legislature.” Appellees argued that because Maryland is not a comparative fault state, the circuit court did not need to address the exclusion of Dr. Kerby’s testimony. Appellant filed a reply memorandum in support of its post-trial motion. On July 21, 2011, the circuit court held a hearing on the post-trial motion.

The circuit court denied the post-trial motion as to the apportionment issue, ruling from the bench: All right. I’m going to deny. I find it a fascinating argument. I’m going to deny it.

It will be preserved for appeal, if you can convince the Court of Special Appeals/Court of Appeals with this. It’s a fascinating argument. ⁵¹⁰ I just have no idea how—we’re already putting on the jury’s shoulders and into their heads material that, sitting here listening to these cases, I have listened to how many, eight or ten or how many I’ve heard is really—approaches the unknowable to start with. And then you start having them divide up and apportion different levels of the unknowable among different parties. It’s just too much.

It’s a fascinating issue. I think that if the legislature wanted to pass a bill saying in all cases where there’s smoking and there’s asbestos inhalation, we’ll divide the liability in the following fashion based upon epidemiological studies, I guess they could do that. If the Court of Appeals wants to send us down that path to another swamp, I suppose we could do that. It’s an interesting issue.

Technologically, it’s interesting. But we don’t have any basis for drawing an intelligent conclusion regarding what we’re going to plug into the matrix. So no, we’re not doing that. Interesting argument.

Like it, but never happen in here. As to the giving of the jury instruction on the duty to inspect, test, or analyze, the circuit court denied the post-trial motion, ruling: “I’m not going to grant the motion, because I think even if I were wrong, I think it was harmless.” At the end of the post-trial motion hearing, the circuit court held the issue of the use plaintiffs sub curia, stating: Now, this—so we’re on the record and clear about this. I’m going to hold off on this mess with the use plaintiffs, but not too long, because I’ll forget everything we argued about if I go too long, and we’re going to try to have a time ... when ... we can have an intelligent discussion. On October 13, 2011, the circuit court held a brief hearing on the outstanding issue of the use plaintiffs, and ruled as follows: Right.

Right. And there is no question that use plaintiffs have to be included. They’re supposed to be included. They’re necessary parties. ⁵¹¹ Honestly, I don’t know what the right answer is.

But I’m going to rule in favor of the plaintiffs on this and get this on to appeal by allowing the verdicts, although I have serious qualms, quite frankly, in my own mind as to how you can throw someone in. I did it, admittedly. I did it, so I might as well deal with the consequences of it. I did it sort of as a safety device, and I don’t think the law is particularly clear.

The issue clearly is defined in my mind as does a use plaintiff who otherwise didn’t appear until the trial and never got moved into the case until it was ready for verdict, are they entitled to have a verdict entered in their name? Or are they simply entitled to share in whatever verdict is taken in the name of the plaintiffs in the case. Common sense tells me that if you’re a use plaintiff, you shouldn’t—I shouldn’t have put them on the verdict sheet. But the court of appeals decision—I don’t think it really clears the issue up.

But since I put them on the verdict sheet, I’ll stick with that. And we’ll allow the verdict to stand with respect to that and overt ]rule motions, although I think honestly it is very dubious. I’m doing the best I can with what I have because I did it. Whatever mess we have, I created by not dealing with that up front.

So, I’ll allow it to stand. And it will go on appeal. And it will work out itself. I don’t think there is any definitive law in Maryland on exactly how to deal with exactly this factual situation.

On October 18, 2011, the circuit court entered an order denying appellant’s post-trial motions. On November 15, 2011, appellant filed a notice of appeal. DISCUSSION I. (1) Contentions Relying on Univ. of Md. Med.

Sys. Corp. v. Muti, 426 Md. 358 , 44 A.3d 380 (2012), appellant contends that the ⁵¹² “failure of the ‘use plaintiffs’ to join the actions precludes them from recovering damages.” Appellant argues that, by the plain language of Maryland Rule 15-1001, use plaintiffs are statutory beneficiaries who have not joined the action as party plaintiffs. Appellant argues that the circuit court lacked jurisdiction over the use plaintiffs as they were not served with process, and that the use plaintiffs were “not required to participate in pretrial proceedings, submit to written discovery, or accept other obligations imposed on a party.” Appellant asserts that the plaintiffs in the instant case “acted as if the use plaintiffs were not parties and owed no obligations to the defense[,]” and “ignored discovery requests and refused to present the use plaintiffs for deposition until compelled by the [circuit] court[.]” Appellant maintains that the use plaintiffs inexplicably failed to join the action throughout the case, waiting until the end of the trial, after the close of evidence, to move to join as plaintiffs. Appellant contends that the failure of the use plaintiffs to timely join the action is “fatal” as the statute of limitations has expired as to their claims.

Appellant argues that under the Wrongful Death Act, an action must be brought within three years after discovery of an occupational cause of death, and, under the Claims Resolution Procedures for its bankruptcy discharge, claims must be brought against appellant before the expiration of limitations as set forth in the Wrongful Death Act or December 28, 2010, whichever is later. Appellant asserts that, as to the Carter and James cases, the use plaintiffs were required to join the action, i.e. bring a claim for wrongful death, by December 28, 2010, as to the Lanrrence case, February 21, 2011, and, as to the Hewitt case, December 20, 2011, or, at the latest, July 24, 2012. Appellant maintains that, as the claims of the use plaintiffs would supplement the claims of the named plaintiffs and possibly increase appellant’s liability, the claims of the use plaintiffs do not “relate back” and are time-barred. Appellees respond that “designating individuals as use plaintiffs accomplishes joinder of those use plaintiffs in the action so that they are proper parties in interest in the case.” ⁵¹³ Appellees contend that the use plaintiffs were parties to the action and were properly awarded damages by the jury.

Appellees argue that appellant and the circuit court had “clear notice” that all of the plaintiffs—including the use plaintiffs-were “claiming their share.” In support of this argument, appellees point out the following as to the use plaintiffs: “They were listed in plaintiffs’ Answer to Interrogatories; they were deposed pre-trial; they were introduced to the jury at voir dire; they were called as witnesses at trial and they were on the verdict sheets.” Appellees contend that appellant’s reliance on dicta from Muti is misplaced, and that Muti is not dispositive as it addressed a different factual scenario. Appellees argue that, unlike in Muti—where a potential beneficiary was not named as a use plaintiff—in this case, all plaintiffs and use plaintiffs participated in the action. As to the statute of limitations, appellees contend the use plaintiffs are not time barred because they are not new parties, and do not bring new causes of action. Appellees argue that the filings of the use plaintiffs would relate back to the original filing when the wrongful death claimants were named. 2 In a reply brief, reiterating that Muti is dispositive and that the use plaintiffs are not parties, appellant asks: “How could [the use plaintiffs] be bound by a judgment of the court absent service of process or voluntary invocation of the court’s jurisdiction?” Appellant contends that, contrary to appellees’ arguments, counsel for the plaintiffs never entered an appearance on behalf of any of the use plaintiffs, and conceded before the circuit court that the use plaintiffs had not affirmatively joined the case. ⁵¹⁴ (2) Law The Maryland Wrongful Death Act, contained at Md.Code Ann., Cts. & Jud.

Proc. Art. (“C.J.P.”) § 3-901 et seq., sets forth provisions governing actions for wrongful death. C.J.P. § 3-904, entitled “Action for wrongful death,” provides, in pertinent part: (a) Primary beneficiaries.— (1) Except as provided in paragraphs (2) and (3) of this subsection, an action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person. (c) Damages to be divided among beneficiaries.— (1) In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death.

(f) Restriction to one action under this subtitle.—Only one action under this subtitle lies in respect to the death of a person. (g) Action to commence within three years; deaths caused by occupational disease or criminal homicide.— (1) Except as provided in paragraph (2) or (3) of this subsection, an action under this subtitle shall be filed within three years after the death of the injured person. (2) (i) In this paragraph, “occupational disease” means a disease caused by exposure to any toxic substance in the person’s workplace and contracted by a person in the course of the person’s employment. (ii) If an occupational disease was a cause of a person’s death, an action shall be filed: 1.

Within 10 years of the time of death; or 2. Within 3 years of the date when the cause of death was discovered, whichever is the shorter. ⁵¹⁵ At the time of the actions underlying this appeal, Maryland Rule 15-1001, governing wrongful death actions, provided, in pertinent part: (a) Applicability. This Rule applies to an action involving a claim for damages for wrongful death. (b) Plaintiff.

If the wrongful act occurred in this State, all persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiffs whether or not they join in the action. The words “to the use of’ shall precede the name of any person named as a plaintiff who does not join in the action. (c) Notice to use plaintiff. The party bringing the action shall mail a copy of the complaint by certified mail to any use plaintiff at the use plaintiffs last known address.

Proof of mailing shall be filed as provided in Rule 2-126. In Walker v. Essex, 318 Md. 516, 524 , 569 A.2d 645 (1990), a wrongful death case, the Court of Appeals vacated a judgment entered on behalf of only one of two potential beneficiaries, holding that the “judgment should not have been entered in the [trial] court unless it included the interests of all of the known beneficiaries.” In Walker, id. at 523 , 569 A.2d 645 , the Court of Appeals discussed the unique nature and purpose of the Maryland Wrongful Death Act, explaining: [U]nder our statute the suit is brought in the name of a person entitled to recover, and to the use of all such parties who may have an interest. Many states require a cause of action to be brought in the name of the personal representative, executor or administrator of the estate. When a wrongful death action is settled by the personal representative, the proceeds are distributed according to statute.

An issue is unlikely to arise as to settlements by only one of several beneficiaries who are part of the suit where all are represented by one responsible plaintiff. Unlike most other states, Maryland has two independent causes of action; one claim is in the name of the personal representative for any claim the deceased could have maintained; the other claim is brought on behalf of the surviving heirs or beneficiaries ⁵¹⁶ for their loss resulting from the death of the spouse, parent or child. (Footnote omitted). The Court of Appeals held that, based on the language of the Wrongful Death Act and accompanying rule, settlement by one wrongful death beneficiary requires mutual consent of the other joined beneficiaries or court approval.

Id. at 518 , 569 A.2d 645 . The Court of Appeals concluded as follows: When looking to the direction of [C. J.P.] § 3-904[ ], we are told that “only one action under this subtitle lies in respect to the death of a person.” We are also instructed that, if a recovery or verdict is obtained in this one action, the amount recovered shall be “divided among the beneficiaries in shares directed by the verdict.” The statutory language does not allow a judgment for one of the beneficiaries to be made a matter of record, as by its very nature, other claims are forever foreclosed or barred. The trial [court] in this case considered the claims of the beneficiaries to be severable. The statute does not.

A judgment should not have been entered in the [trial] court unless it included the interests of all of the known beneficiaries. Id. at 523-24, 569 A.2d 645 . In Williams v. Work, 192 Md.App. 438, 463 , 995 A.2d 744 (2010), aff'd sub nom. Ace Am.

Ins. Co. v. Williams, 418 Md. 400 , 15 A.3d 761 (2011), this Court vacated the trial court’s judgment and settlement, holding that “all statutory beneficiaries are to be either plaintiffs or use plaintiffs[.]” In the case, the decedent died as a result of an accident, survived by his wife, Lori, and his children. Id. at 443-44 , 15 A.3d 761 . The wife brought suit against the defendants, Williams I, as the decedent’s personal representative but two of the decedent’s sons were not named as plaintiffs or use plaintiffs.

Id. at 444 , 15 A.3d 761 . Later, the wife’s counsel, now representing the two sons, filed a second lawsuit against the defendants, Williams II, seeking damages for the wrongful death of the decedent. Id. at 448 , 995 A.2d 744 . A year later, the two sons moved to ⁵¹⁷ reopen Williams I and to consolidate it with Williams II, asserting that, “as primary wrongful death beneficiaries, who did not receive any compensation and who had not consented to the settlement in Williams I, they [were] entitled to recover for the wrongful death of their father.” Id.

The defendants filed motions for summary judgment in Williams II, which were granted. Id. at 449-50 , 995 A.2d 744 . We observed that nothing in the record demonstrated that the sons were named as plaintiffs as required by Maryland Rule 15-1001. Id. at 452 , 995 A.2d 744 .

In discussing the concept of use plaintiffs, we stated that Maryland Rule 15-1001 “is in the nature of a joinder rule or a condition precedent that requires all known statutory beneficiaries, i.e., the real parties in interest, be identified as parties to the litigation.” Id. We discussed Maryland Rule 15-1001 as follows: Although Rule 15—1001(b) does not require the statutory beneficiaries to formally join the litigation, “all persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiffs.” The words “to the use of’ simply identify plaintiffs who have not formally joined the action, but, as real parties in interest, they are plaintiffs whose interests must be acknowledged and protected throughout the litigation. Although Rule 15-1001(b) does not require formal joinder, the failure to include a known statutory beneficiary as a plaintiff or a “use plaintiff’ in a wrongful death action and to settle without providing for that beneficiary can be analogized to the failure to join a necessary party in an action where joinder is required. In our view, because of the one action rule, the failure to do so is a “defect” or “mistake” of jurisdictional proportions in the proceeding, which may be raised at any time.

That would be true whether the failure to name the statutory beneficiary as a plaintiff or use plaintiff is attributed to a failure to file or to a clerk’s error in docketing a filed pleading. In a situation where no financial provisions were made for known beneficiaries, the former is in the nature of a jurisdictional mistake and the latter is an irregularity of process or procedure. Either ⁵¹⁸ would permit, and, in the circumstances of this case, require, opening the judgment to protect the interests of those beneficiaries. Here, it appears that the parties did undertake compliance with Rule 15-1001.

A copy of the unfiled complaint was sent to the parties and, though not required by the Rule, it was “served” on Donna. But, even if we treated Rule 15-1001 as having been substantially complied with, the result would again be the same. Rather than looking to Rule 2-535(b), we would, instead, conclude that the judgment ... was not a final judgment under Walker v. Essex [.] Id. at 455-56 , 995 A.2d 744 (citations and emphasis omitted). As to Williams I, we noted that Lori’s counsel purposefully avoided contact with the use plaintiffs, and neither Lori nor her counsel notified the sons of the terms of the settlement, “much less actively sought [the sons’] consent to the Settlement Agreement.” Id. at 462 , 995 A.2d 744 .

This Court ultimately vacated the judgment and settlement approved in Williams I and granted the motion to consolidate Williams I and Williams II, “keeping in mind that all statutory beneficiaries are to be either plaintiffs or use plaintiffs in the consolidated case.” Id. at 463 , 995 A.2d 744 . In Ace Am. Ins. Co., 418 Md. at 403, 427 , 15 A.3d 761 the Court of Appeals affirmed this Court’s decision in Williams, concluding as follows: We agree with the [Court of Special Appeals]’s interpretation of Md. Rule 15-1001(b), which is entirely consistent with our holding in Walker v. Essex, [ ] as well as with the provisions of [C.J.P.] § 3-904.

We also share the [Court of Special Appeals]’s concerns about the yet to be resolved issues that have arisen as a result of the procedural violations in Williams I [.] ... We shall therefore adopt the above quoted portions of the [Court of Special Appeals]’s opinion and affirm the judgment of that Court. In Muti, 426 Md. at 384-85 , 44 A.3d 380 the Court of Appeals held that the trial court abused its discretion in dismissing the plaintiffs’ wrongful death claims as a sanction for omitting a ⁵¹⁹ decedent’s adopted stepson as a use plaintiff. The decedent, Elliott, died, survived by his widow, Guiseppina, and their children, Tom and David (“the plaintiffs”).

Id. at 363 , 44 A.3d 380 . After Elliott’s death, the plaintiffs brought a claim for wrongful death, but omitted as a use plaintiff Ricky, the decedent’s adopted stepson from a prior marriage, and did not otherwise notify Ricky of the action. Id. at 362 , 44 A.3d 380 . The defendant moved to dismiss the complaint for failure to join a necessary party.

Id. at 364 , 44 A.3d 380 . The plaintiffs did not amend the complaint to name Ricky as a use plaintiff. Id. at 366 , 44 A.3d 380 . At a hearing on the motion to dismiss, counsel for the plaintiffs argued that he had been unable to locate Ricky and that he would “amend, by relation back, if they found Ricky alive.” Id.

The trial court granted the motion to dismiss for failure to comply with Maryland Rule 15-1001, i.e. for failure to name Ricky as a use plaintiff. Id. In Midi, id. at 370-71 , 44 A.3d 380 the Court of Appeals discussed the Wrongful Death Act statute of limitations, stating: Since at least ... 1925[ ], this Court has construed the time limit in the wrongful death statute to be a substantive provision, that is, a condition precedent to asserting the statutorily created cause of action. A plaintiff who does not assert the cause of action within the statutorily prescribed time, now three years, loses the right to sue a defendant who is not estopped to assert the defense.

Even infancy of the plaintiff when a wrongful death claim was asserted and settled by a parent of the plaintiff does not toll the triggering of the timeliness condition. (Citations and footnote omitted). Pursuant to the time limit in the Wrongful Death Act, the Court of Appeals held that Ricky’s claim had expired because, as a beneficiary, he had not brought an action within three years of Elliott’s death. Id. at 376 , 44 A.3d 380 .

The plaintiffs argued that “the trial court erred by not applying the doctrine of relation back and treating Ricky as having been named as a use plaintiff when [they] filed their action.” Id. The Court of Appeals held that the doctrine of relation back would not be applied, however, ⁵²⁰ “because Ricky’s claim ha[d] expired by operation of the three year condition precedent.” Id. at 376-77 , 44 A.3d 380 . In other words, “relation back does not apply to wrongful death claims barred by the three year condition precedent.” Id. at 380-81 , 44 A.3d 380 . The Court of Appeals discussed Maryland Rule 15-1001, stating that the purpose of the Rule “is to implement the one-action provision in the statute.

The purpose of that provision ‘is to protect a defendant from being vexed by several suits instituted by or on behalf of different equitable plaintiffs for the same injury when all of the parties could be joined in one proceeding.’ ” Id. at 380 , 44 A.3d 380 (citation and emphasis omitted). As to prejudice to Ricky, the Court of Appeals observed that it was “difficult to consider how a claim by Ricky could have any value, even if it were timely asserted.” Id. As to the plaintiffs’ duty, the Court of Appeals stated, in no uncertain terms, that the plaintiffs should have identified Ricky as a use plaintiff, despite their lack of knowledge of his whereabouts. Id. at 381 , 44 A.3d 380 .

The Court of Appeals determined that Maryland Rule 15-1001(b) “requires that ‘all persons who are or may be entitled by law to damages’ be named as plaintiffs. Those beneficiaries who do not join are to be named as use plaintiffs.” Id. According to the Court of Appeals, the plaintiffs could have named Ricky as a use plaintiff and stated in their complaint that “any address for use plaintiff Ricky was unknown.” Id. at 382 , 44 A.3d 380 . In so making that representation in a complaint, however, the Court of Appeals stated that the plaintiffs’ counsel first had a duty to conduct a good faith and reasonably diligent search for the use plaintiff.

Id. The Court of Appeals concluded: In cases in which the identity and location of the beneficiaries is known by the original plaintiffs, there ordinarily should be no difficulty in complying with Rule 15-1001. In cases where the whereabouts of an identified beneficiary are unknown, compliance with the steps outlined above, i. e., identification of the use plaintiff, a bona fide and reasonably diligent search, and advising the court if the original plaintiff has been unable to find a last known address for the use ⁵²¹ plaintiff, ordinarily should satisfy whatever obligations an original plaintiff has to a use plaintiff that can be derived from [C.J.P.] § 3-904 or Rule 15-1001. Id.

The Court of Appeals thus held that the trial court abused its discretion in dismissing the plaintiffs’ wrongful death claims as a sanction for omitting Ricky as a use plaintiff. Id. at 384-85, 44 A.3d 380 . The Court of Appeals remanded the case for consideration of “what, if any, sanction for the omission is appropriate from the standpoint of reinforcing for the Bar as a whole the requirement for naming, as a use plaintiff, a potential beneficiary.” Id. at 385 , 44 A.3d 380 . In a section labeled “Some Considered Dicta,” in Midi, id. at 384 , 44 A.3d 380 the Court of Appeals stated the following: Even if Ricky had been identified as a use plaintiff when this action was filed, but did not “join” as a plaintiff within three years of Elliott’s death, his identification as a use plaintiff would not permit [h]im to join more than three years after Elliott’s death.

Rule 15-1001(b) distinguishes between those beneficiaries who join in the action for damages and those, the use plaintiffs, who do not. Use plaintiffs who wish to assert their respective claims for damages must timely join the action by indicating to the court and to the original parties in some clear fashion that they are claiming their “share.” Ordinarily, this is done by intervening.... Intervention in wrongful death cases is now covered by Rule 2-214. [C.J.P.] § 3-904 and Rule 15-1001 cannot be construed to anoint counsel for the original (i.e. joined) plaintiffs as the attorney for the use plaintiffs as well. By designating potential beneficiaries as use plaintiffs, counsel demonstrates that he or she does not represent them and has no authority to make decisions for them or to present evidence, including proof of damages, on their behalf.

To hold otherwise invites grave problems of conflict of interest. (Emphasis added). After the Court of Appeals’s decision in Mwti, on July 26, 2012, the Standing Committee on Rules of Practice and Proce ⁵²² dure issued its 174th Report, including a Notice of Proposed Rules Changes, stating that amendments to Maryland Rule 15-1001 were necessary: to conform with holdings in University of Md. Medical Systems [System ] v. Muti [ 426 Md. 358 44 A.3d 380 ] (2012), including the duty of the named plaintiffs to make a good faith