Wright v. Eagle-Picher Industries, Inc.

ROSALYN B. BELL, Judge. This case arose from a tort action brought in the Circuit Court for Baltimore County by four men, Allen E. Wright, Vincent J. Bonadio, Charles K. Debrick and William J. Becker, Jr. (appellants) to recover for damages from asbestosis or asbestos-related lung diseases. Joyce Wright, Mildred Bonadio and Millicent Becker brought joint actions with their husbands for loss of consortium. The defendants at trial were Eagle-Picher Industries, Inc., MCIC, Inc. (f/k/a McCormick Asbestos Company), Wallace Insulation (appellees) and Raymark Industries, Inc. 1 Appellees are ⁶⁰⁹ manufacturers, suppliers and installers of insulation products containing asbestos.

The trial was before a jury which determined in a special verdict that appellants did not suffer from asbestosis. Judgment was entered in favor of appellees. Appellants’ motion for a new trial was denied. On appeal, appellants contend: —The trial court invaded the province of the jury by its instruction, despite conflicting competent medical evidence, that the medical condition of pleural plaques was not a compensable injury. —The exclusion of relevant evidence bearing on the reasonableness of appellants’ fear of cancer was error. —The exclusion of relevant evidence, establishing the need for and expénses of future medical monitoring to detect cancer, was error. —The exclusion of evidence of appellees’, the medical and scientific community’s, and the asbestos industry’s knowledge by 1947 of the causal connection between asbestos exposure and cancer was error.

Because we hold that there was no error in the jury instructions and affirm, we need not and will not address the three remaining issues which relate to damages. MOTION TO DISMISS Initially, we must address appellees’ motion to dismiss this appeal. Pursuant to Rule 8-603(c), appellees have included in their brief a motion to dismiss based on Rule 8-602(a)(10), which provides that the Court may dismiss an appeal if the case has become moot. Appellees contend that the issues presented on appeal are abstract questions of law which, when resolved, would have no impact on the judgments in these cases.

They urge that since none of the issues presented by appellants assert error in the jury’s finding that appellants did not have asbestosis, this appeal should be dismissed. They are mistaken. ⁶¹⁰ Generally, appellate courts will not decide academic or moot questions. Questions tend to become moot as a result of a change in a party’s position. State v. Siegel, 13 Md.App. 444, 471 , 285 A.2d 671 (1971), aff'd, 266 Md. 256 , 292 A.2d 86 (1972).

There has been no change in the parties’ position here. In addition, the Court of Appeals has held that “[a] question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Attorney General of the State of Maryland v. Anne Arundel County School Bus Contractors Ass’n, Inc., 286 Md. 324, 327 , 407 A.2d 749 (1979). There is still a disagreement between the parties in the present case, as is demonstrated by appellants’ claims of errors by the trial court. Moreover, we disagree with appellees’ assertion that appellants’ complaints are abstract questions which will not affect the judgment entered by the trial court.

As appellants point out, they are not challenging the jury verdict; rather, they contest the jury instruction regarding pleural plaques which they believe had an impact upon the result. We agree with appellants. Had we held that the trial court erred in its jury instruction, the case would have been remanded for a new trial and the verdict could well have changed. Thus, we deny appellees’ motion to dismiss.

JURY INSTRUCTIONS Appellants assign error to the trial judge’s instruction to the jury that the medical condition known as pleural plaques 2 alone is not a compensable injury. They argue that the trial judge invaded the province of the jury by telling it, despite the presentation of conflicting expert medical testimony, that the exhibition of pleural plaques ⁶¹¹ alone is not compensable. 3 They also assert that the jury instructions confused and misled the jury, and consequently, they were improper. —Credibility of Witnesses and Weight of Testimony— Appellants rely on Singleton v. Roman, 195 Md. 241, 246-47 , 72 A.2d 705 (1950), for the proposition that it is the province of the jury to determine issues of fact. Singleton also explains that the role of the trial judge is to “state the law to the jury.” Singleton, 195 Md. at 246 , 72 A.2d 705 . In Singleton , the trial judge instructed the jury to disregard the testimony of a State trooper stating there was a very slight odor of alcohol on defendant’s breath.

Singleton, 195 Md. at 246 , 72 A.2d 705 . The Court of Appeals held that the instruction was improper since it invaded the jury’s evaluation of the defendant’s level of intoxication which was relevant to determining his negligence. In the case at bar, Stuart L. Jacobs, M.D., one of appellants’ expert witnesses, testified that pleural thickening and pleural plaques are abnormal conditions of the lung. He testified as follows: “BY [APPELLANTS’ ATTORNEY]: “Q. So we get more specific here, the fibrosis that you are talking about when it is caused by asbestos, does that have a name, that particular type? “A. That is called asbestosis.

The term asbestosis is generally meant to be the fibrosis in the lung itself. “It is a matter of nomenclature. Some experts in asbestos lung disease use the term asbestosis to include ⁶¹² all of the fibrotic manifestations, including pleural plaques. Others use the word fibrosis just for the parenchyma. It is a matter of just being suscinct [sic] when you define your terms. “Q. Well, just so the jury will know what language you are speaking, when you speak of asbestosis what are you inferring or what is your meaning for it? “A. Well, I prefer to think of it as the entire picture of fibrosis in the parenchyma, fibrosis in the pleura.

Dr. Sellikoff, who is one of the premiere experts, uses that terminology. Other investigators and the ATS [American Thoracic Society], they use asbestosis to mean specifically the fibrosis in the lungs. So, it is just a matter of defining your terms. “Q. Well, those who use the term asbestosis to include the pleural portion of the scarring or fibrosis, how do they differentiate? How, if at all, do you differentiate pleural scarring from lung scarring? “A. Well, I would then use the term pleural asbestosis or parenchymal asbestosis.” Paul Sorrell Wheeler, M.D., one of appellees’ medical experts, testified: “[A]sbestosis, in the strictest sense relates to pneumoconiosis.

Pneumoconiosis by definition is lung fibrosis. There was a time, particularly early in the 1980’s, when a great many individuals were using the term, asbestosis, to refer to pleural plaques, which were a completely different entity involving not the lung but the outer later [sic] pleura.” Applying Singleton , appellants charge that since there was conflicting testimony regarding the meaning of “asbestosis,” (i.e., whether it includes fibrosis of the pleurae or is limited to fibrosis of the pulmonary parenchyma, the air sacks which form the lung), the jury should have been free to arrive at its own conclusion. While we agree, the pleural plaques instruction did not prevent both definitions of asbestosis from being argued to the jury. In fact, counsel for appellants opened his closing argument with this statement: ⁶¹³ “You received an instruction about not awarding money damages for pleural plaques alone, but recall Dr. Jacobs and Dr. Davidson telling you that the pleural plaques indicate, in their medical opinion, that there is fibrosis in the lungs and that is a compensable disease and that’s what we are seeking____” Further, appellants assert that there was differing testimony concerning whether pleural plaques or pleural thickening 4 indicate underlying fibrosis of the lung.

Again, we agree, but fail to see how the pleural plaques instruction prevented the jury from considering the evidence tending to support a finding that appellants had asbestosis. —The Current Medical Literature— A review of the articles in medical journals reveals that pleural plaques are frequently discussed under the topic of “benign pleural disorders,” 5 which would appear to corroborate the trial court’s jury instruction. A recent article which reviews numerous studies of the effects of benign, asbestos-related abnormalities exemplifies the current medical controversy concerning pleural plaques. See R. Jones, et al., “The radiographic pleural abnormalities in asbestos exposure: Relationship to physiologic abnormalities,” Journal of Thoracic Imaging, October 1988, vol. 3, # 4:57. In this