ACandS, Inc. v. Asner

Decision Date01 September 1994
Docket NumberNo. 1021,1021
Citation104 Md.App. 608,657 A.2d 379
Parties, Prod.Liab.Rep. (CCH) P 14,225 ACandS, INC., et al. v. Ida Sara Masket ASNER, et al. ,
CourtCourt of Special Appeals of Maryland

Dale B. Garbutt (Dana C. Petersen, Padraic McSherry Morton and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellant, Porter Hayden Co.

B. Ford Davis (Dwight W. Stone, II and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellant, ACandS, Inc.

Edward J. Lilly (Peter G. Angelos, Gary J. Ignatowski, Ronald E. Richardson, and Andrew M. Cantor on the brief), Baltimore, for appellees.

Argued before BISHOP, ALPERT and SALMON, JJ.

BISHOP, Judge.

TABLE OF CONTENTS

                  I.  FACTS
                      A.    Corporate and Commercial History of Appellants        p. 383
                      B.    Work and Medical Histories of Decedents               p. 384
                             1.         Asner                                     p. 384
                             2.         Wilson                                    p. 384
                             3.         Payne                                     p. 384
                 II.  DISCUSSION
                      A.    Motion for Judgment on Issue of Punitive Damages      p. 385
                             1.         Standard of Review                        p. 385
                             2.         The Zenobia Standard                      p. 386
                             3.         The Evidence Against AC & S               p. 387
                             4.         The Evidence Against PH                   p. 391
                             5.         The Holding Regarding Punitive Damages    p. 393
                                        a.                   Wilson and Payne     p. 393
                                        b.                   Asner                p. 393
                      B.    Threshold Limit Values                                p. 394
                      C.    Loss of Consortium and Solatium Damages               p. 396
                      D.    Exposure to Asbestos of Non-parties                   p. 398
                      E.    Johns"Manville Sales to Fairfield                     p. 400
                      F.    Substantial Factor Causation                          p. 400
                             1.         The Law                                   p. 400
                             2.         AC & S's Substantial Factor Causation     p. 401
                             3.         PH's Substantial Factor Causation         p. 402
                III.  CONCLUSION
                ----------
                

Appellee, Ida S. Asner ("Ms. Asner"), filed suit individually and as personal representative of the estate of Zalma Asner ("Asner"), in the Circuit Court for Baltimore City against thirty-one companies. The complaint alleged that Asner developed mesothelioma because of exposure to asbestos-containing products that those companies manufactured or supplied. The Asner action and the similar actions brought by appellee, Mary M. Wilson ("Ms. Wilson"), individually and as personal representative of the estate of Charles F. Wilson ("Wilson"), and appellees, Harriet G. Payne Hess ("Ms. Hess"), as personal representative, and Jean A. Payne ("Ms. Payne"), individually and as personal representative of the estate of Milton Payne ("Payne"), were consolidated for the November 1993 Group II cluster of the mesothelioma trials.

Appellees filed motions in limine to exclude evidence of threshold limit values and to exclude evidence of decedents' exposures to the asbestos-containing products of non-parties. The trial court granted both motions. The jury trial began November 3, 1993, and, with the exception of appellants, ACandS, Inc. ("AC & S") and Porter Hayden Company ("PH"), all of the other companies settled, became bankrupt, or were dismissed from the case. AC & S was dismissed from the Payne action. Appellants cross-claimed for contribution against Owens-Illinois, Inc., GAF, Inc., Pittsburgh Corning Corporation, and Armstrong World Industries, Inc.

At the close of appellees' case, and at the close of all the evidence, appellants' motions for judgment on the issues of substantial factor causation and punitive damages were denied. The jury returned verdicts against AC & S in both the Asner and Wilson actions and against PH in all three actions. Damages were assessed as follows: Ms. Asner was awarded $528,003.58 in compensatory damages as personal representative of Asner's estate, $1,000,000 for loss of consortium, $1,000,000 for solatium damages, and $500,000 in punitive damages; Ms. Wilson was awarded $510,089.47 in compensatory damages as personal representative of Wilson's estate, $1,000,000 for loss of consortium, $1,000,000 for solatium damages, and $500,000 in punitive damages; Ms. Payne and Ms. Hess were awarded $549,464.49 in compensatory damages as co-personal representatives of Payne's estate; Ms. Payne also received awards of $1,000,000 for loss of consortium, $1,000,000 in solatium damages, and $250,000 in punitive damages. The jury found for appellants as to their cross-claims. Appellants moved for judgment N.O.V. on the issue of loss of consortium and also moved for new trial or, in the alternative, for remittitur on the issue of the amount of consortium damages. The court denied appellants' motions and entered judgment on March 21, 1994. This appeal followed.

Issues

Appellants raise several issues, which we rephrase and reorder:

I. Did the trial court err in denying appellants' motions for judgment on appellees' claims for punitive damages?

II. Did the trial court err in excluding evidence of threshold limit values?

III. Does the death of an injured spouse abate the cause of action for loss of consortium, thereby preventing a surviving spouse from recovering both loss of consortium damages and solatium damages?

IV. Did the trial court err in excluding evidence of decedents' exposures to the asbestos products of non-parties?

V. Did the trial court err in excluding evidence of the direct sales of Johns-Manville Products to Fairfield Shipyard?

VI. Did the evidence presented at trial support the jury's finding of substantial factor causation?

I. Facts
A. Corporate and Commercial History of Appellants

AC & S, an insulation contracting company, was incorporated in the State of Delaware in November of 1957 as Armstrong Contracting and Supply Corporation. From its incorporation, until 1969, AC & S was a wholly-owned subsidiary of Armstrong Cork Company ("Cork"), presently Armstrong World Industries, Inc. ("Armstrong"). In 1969, Cork sold Armstrong Contracting and Supply Company, and the name was changed to ACandS, Inc. AC & S held itself out as a manufacturer of Cork products and secured the exclusive rights to use the Armstrong name and logo. AC & S was solely responsible for all Armstrong asbestos-containing thermal insulation products from 1958 to 1969. After 1969, all products had the AC & S name and logo. Certain employees who worked for Cork became employees of AC & S, including James W. Liddell, President of AC & S from 1958 to 1981.

From 1958 until 1973, AC & S contracted with various site owners or general contractors to do insulation work. AC & S, which admits that certain of its products contained asbestos, employed insulators, men who worked with insulation products on a daily basis, from the locals of the International Association of Heat and Frost Insulators and Asbestos Workers Union. In Baltimore, AC & S used workers from Local 11. By 1972, the cements used by AC & S did not contain asbestos, and by January 1974, AC & S discontinued its use of all asbestos-containing insulation products.

PH, a Maryland insulation contracting corporation, was formed in 1966 by the merger of Reid-Hayden, Inc. and H.W. Porter & Company, Inc. At all times relevant to the case sub judice, PH installed insulation in industrial facilities in the Baltimore area. PH concedes that some of the materials it installed in the facilities contained asbestos.

B. Work and Medical Histories of Decedents
1. Asner

Asner was employed as an outside machinist at Bethlehem Steel's Key Highway Shipyard ("Bethlehem"), a ship repair yard, from 1941 to 1982. Asner worked around insulators who applied, cut, and mixed asbestos-containing products used to cover steam and water pipes in the engine room. In 1985, Asner was diagnosed with lung cancer, and, in 1988, he was diagnosed with mesothelioma. Asner died on December 6, 1988. AC & S, which began performing substantial insulation contracts at Bethlehem in 1965, concedes that asbestos-containing products were used at Bethlehem until 1973. Neither AC & S nor PH contest substantial factor causation for Asner.

2. Wilson

Wilson worked as a sheet metal worker at Maryland Shipbuilding and Drydock Company ("Drydock") in the 1940s, prior to AC & S's incorporation, where he was exposed to asbestos. From 1946 to 1975, Wilson was a supervisor of the sheet metal workers at Allegheny Ballistics Lab ("ABL") in Western Maryland. Wilson was in charge of the sheet metal workers responsible for covering the asbestos insulation to hold it in place on the boilers, ducts, and steam lines.

At trial, Mr. John Lohr, employed as a tin shop worker and pipe fitter at ABL from 1956 to the 1970s, testified regarding Wilson's exposure to asbestos. Mr. Lohr saw Wilson almost every day "out and around and ... checking on the jobs that his men [were] doing." Mr. Lohr insulated boilers, ducts, and steam lines with "asbestos shorts," a dry powder mixed with water to form asbestos cement. Mixing the asbestos cement generated a considerable amount of dust that made the workers' clothes appear as if they had "flour" on them. Mr. Lohr testified that the logos "Armstrong" and "Mansfield" appeared on the packages of asbestos shorts, that those two products were used the entire time that he worked as a pipe fitter, that Wilson worked around these products and was exposed to the asbestos dust, and that no precautions were taken during the mixing process to minimize the dust created. Wilson was diagnosed with mesothelioma in 1992 and died on August 23, 1992. PH does not contest substantial factor causation for Wilson's mesothelioma; however, AC & S does dispute liability...

To continue reading

Request your trial
16 cases
  • Owens Corning v. Bauman
    • United States
    • Court of Special Appeals of Maryland
    • 1 Febrero 1999
    ... ... Arguing that we adopted a "bright-line" rule, i.e., the manifestation standard, in ACandS, Inc. v. Abate, 121 Md.App. 590, 710 A.2d 944, cert. denied, 350 Md. 487, 713 A.2d 979 (1998), ... 497, 709 A.2d 141 (1998); Anchor Packing Co. v. Grimshaw, supra ; ACandS v. Asner, 104 Md.App. 608, 657 A.2d 379 (1995), rev'd on other grounds and remanded, 344 Md. 155, 686 ... ...
  • FutureCare NorthPoint, LLC v. Peeler
    • United States
    • Court of Special Appeals of Maryland
    • 28 Julio 2016
    ...713, 589 A.2d 956 (1991) ). In effect, the personal representative “steps into the shoes of [the] decedent[.]” ACandS, Inc. v. Asner, 104 Md.App. 608, 644, 657 A.2d 379 (1995), rev'd on other grounds, 344 Md. 155, 686 A.2d 250 (1996).In Dickerson v. Longorio, 414 Md. 419, 995 A.2d 721 (2010......
  • Crane v. Puller
    • United States
    • Court of Special Appeals of Maryland
    • 31 Mayo 2006
    ...marital unit that occur while the injury victim, as an indispensable member of that marital unit, remains alive. In ACandS v. Asner, 104 Md.App. 608, 645, 657 A.2d 379 (1995), reversed on other grounds, ACandS v. Asner, 344 Md. 155, 686 A.2d 250 (1996), this Court emphatically We held, ther......
  • Futurecare Northpoint, LLC v. Peeler, 2602
    • United States
    • Court of Special Appeals of Maryland
    • 28 Julio 2016
    ...other grounds, 322 Md. 713 (1991)). In effect, the personal representative "steps into the shoes of [the] decedent[.]" ACandS, Inc. v. Asner, 104 Md. App. 608, 644 (1995), rev'd on other grounds, 344 Md. 155 (1996). In Dickerson v. Longorio, 414 Md. 419 (2010), the Court of Appeals discusse......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT