ACandS, Inc. v. Godwin

• Decision Date: 01 September 1994
• Docket Number: No. 23,23
• Citation: 667 A.2d 116,340 Md. 334
• Parties: , Prod.Liab.Rep. (CCH) P 14,416 ACandS, INC. et al. v. Thomas GODWIN et al. ,
• Court: Maryland Court of Appeals

Page 334

340 Md. 334

667 A.2d 116, Prod.Liab.Rep. (CCH) P 14,416

ACandS, INC. et al. v. Thomas GODWIN et al.

No. 23, Sept. Term, 1994.

Court of Appeals of Maryland.

Oct. 18, 1995.

On Motion for Reconsideration

Dec. 1, 1995.

Roger W. Titus (Patrick L. Clancy, Paula T. Laboy, Venable, Baetjer and Howard, LLP, Rockville, Gerry Hoban Tostanoski Scott Patrick Burns, Tydings & Rosenberg, Baltimore, William D. Harvard, Blasingame, Burch, Garrard & Bryant, P.A., Athens, GA; R. Cornelius Danaher, Frank H. Santoro, Danaher, Tedford, Lagnese & Neal, P.C.; [Attorneys for Pittsburg Corning Corporation]; Louis G. Close, Jr., Warren N. Weaver, Fenton L. Martin, Gardner M. Duvall, Whiteford, Taylor & Preston, LLP, Baltimore [Attorneys for Porter Hayden Company] ), all on brief.

B. Ford Davis (Whiteford, Taylor & Preston L.L.P., Baltimore, all on brief), William D. Harvard, Warren N. Weaver, James D. Miller, for appellants/cross-appellees.

Patricia J. Kasputys (Peter G. Angelos, Kenneth D. Pack, Law Offices of Peter G. Angelos, Towson, Ronald L. Motley, Joseph F. Rice, Susan Nial, Ness, Motley, Loadholt, Richardson & Poole, Charleston, SC; John J. McConnell, Jr., Robert J. McConnell, Ness, Motley, Loadholt, Richardson & Poole, Providence, RI, all on brief), John J. McConnell, Jr., David L. Palmer, Thomas P. Kelly, Kenneth D. Pack, for appellees/cross-appellants.

F. Ford Loker, Church & Houff, P.A., amicus curiae.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RODOWSKY, Judge.

In this opinion we address the appeals and cross appeals in the consolidated actions known to the Maryland asbestos litigation industry as Abate I. With one exception we shall affirm the judgments for compensatory damages and, for insufficient evidence, reverse the judgments for punitive damages.

Abate I is the first trial after the consolidation in the Circuit Court for Baltimore City of 8,555 actions involving claims for personal injuries or wrongful death allegedly resulting from exposure to asbestos. In that trial, held from February 18 to August 10, 1992 before Judge Marshall A. Levin, certain common issues relating to liability were decided, as well as all issues between six illustrative plaintiffs and certain nonsettling, trial defendants. The issues that we address in this opinion are tabulated, infra.

In September 1987, when there were approximately 1,000 asbestos case filings in the Circuit Court for Baltimore City, Judge Levin was administratively designated as the "judge in charge" of asbestos litigation in that court. By April 1990 the number of such cases in Baltimore City had increased to more than 4,900. It was anticipated that asbestos cases would continue to be filed at the rate of up to fifty cases per week. Judge Levin had been applying alternative dispute resolution techniques, but with only limited success.

The case management plan in April 1990 called for trying on all issues batches of ten plaintiffs' actions per consolidated trial. This represented an increase from five plaintiffs' actions per consolidated trial caused by a reduction to two judges from the four judges previously available to try asbestos cases. If these cases were heard eleven months of the year, and if a new consolidation were set for trial in each of those eleven months before each of the two available judges, a maximum of 220 Baltimore City asbestos cases could be disposed of by trial or, with the incentive of a fixed trial date, by settlement. But the queue of undisposed of cases would lengthen into the Twenty-first Century, because annual new filings were approximately ten times greater than the number of cases that could be tried in the same period.

Against that background Judge Levin determined to consolidate the common issues of all of the Baltimore City asbestos cases into one trial.

The initial mass consolidation order of April 1990 applied to all asbestos personal injury and wrongful death cases in the Circuit Court for Baltimore City filed as of April 1, 1990 in which process was served by June 1, 1990. ¹ The principal common issues to be decided in the consolidated phases of the trial were "state of the art" and punitive damages.

Also pending as of April 1990 were more than 3,000 asbestos cases, in total, in the circuit courts for Baltimore, Prince George's, Allegany, and Washington Counties. These cases were transferred to the Circuit Court for Baltimore City pursuant to Maryland Rule 2-327(d) for pretrial and for trial of common issues as part of the same consolidation. ²

Judge Levin, in molding the consolidation, determined that the claims of six plaintiffs should proceed to complete disposition on all issues. Three plaintiffs were selected by agreement of counsel for the consolidated plaintiffs, and three plaintiffs were selected by agreement of counsel for the consolidation trial defendants. The purpose of trying these six illustrative claims in full was to give the jury a better understanding of the issues involved in an asbestos case.

Over one hundred different defendants had been sued, cumulatively, in the 8,555 actions that were consolidated. Prior to trial, however, the plaintiffs voluntarily dismissed their claims against all but fifteen of the defendants originally named. The trial court then severed from the consolidated trial the cross-claims brought by the fifteen remaining defendants against the defendants whom the plaintiffs had dismissed. Those cross-claims would be tried at a later time in a consolidated cross-claim trial (Abate II ). Cross-claims between the fifteen remaining defendants would be tried in Abate I as mini-trial issues applicable only to a particular illustrative plaintiff. If, however, any of the fifteen consolidated trial defendants should settle with the consolidated plaintiffs the cross-claim liability of that defendant then would be resolved, ordinarily, in Abate II. The exception to the latter procedure was that an Abate I defendant that settled with the consolidated plaintiffs could elect, at its sole option, to have certain issues relating to its cross-claim liability tried in Abate I as a common issue binding all cross-claimants in the consolidation.

Prior to jury selection one of the fifteen defendants settled. During jury selection two more defendants settled. During the trial six other defendants settled. Thus the jury ultimately considered the issues between the illustrative plaintiffs and only six defendants. In addition two of the settling defendants elected to have their cross-claim liability decided as a common issue in Abate I.

Judge Levin divided the issues to be decided into four phases, and the court took jury verdicts on special interrogatories for each phase. Phase I decided, as to specific products of each remaining defendant and of the two cross-claim defendants, whether that defendant was negligent and/or strictly liable and, if so, the year in which that liability arose and the year in which it may have ended. Phase I was submitted to the jury on July 10, 1992, and the verdict was rendered on July 13. Each of the six defendants and one of the cross-claim defendants were found negligent and strictly liable as to all products submitted. These issues were common to the consolidation, and the findings applied to the cases of the other 8,549 plaintiffs.

Phase II resolved individual issues as to the six illustrative plaintiffs. These issues included: (1) whether the plaintiff was a foreseeable user and/or bystander; (2) whether the plaintiff had contracted an asbestos-related disease and, in the wrongful death cases, whether that disease had caused the death; (3) the years, if any, during which the plaintiff was exposed to the products of specific defendants named in the special verdict form; ³ and (4) for those defendants for which years of exposure were found under issue three, whether that exposure was a substantially contributing factor in causing the asbestos related disease and/or death. The remaining issues in phase II dealt with cross-claims and the amount of compensatory damages. ⁴

The phase II issues were submitted to the jury on July 21, and the jury returned its verdict on July 23. The three plaintiffs selected by plaintiffs' counsel obtained verdicts. Each of the three illustrative plaintiffs selected by defendants' counsel was found not to have developed an asbestos-related disease, so that judgments in favor of the six trial defendants were entered as to those plaintiffs. The successful plaintiffs were Leggette McNiel (McNiel) and the survivors of Ira Russell (Russell) and of Lawrence Leaf (Leaf). McNiel was diagnosed with asbestosis in 1985, and he requires supplemental oxygen from a portable tank. Russell died of asbestosis in January 1992. Leaf's exposure to asbestos resulted in mesothelioma, from which he died in September 1986. Of the defendants against whom a verdict for compensatory damages was returned, those who are appellants in the instant matter are ACandS, Inc. (ACandS), Pittsburgh Corning Corporation (PCC) and Porter Hayden Company (PH).

Phases III and IV addressed punitive damages. The punitive damages issues were common issues under the consolidation order. The court granted a motion for judgment as to punitive damages in favor of ACandS and in favor of one other defendant. That latter defendant settled after the appeal was noted in this case. In the Phase III verdict, rendered on July 30, the jury found each of the four remaining defendants liable for punitive damages. One of these four defendants subsequently settled. Another, who filed a voluntary petition for relief under the Bankruptcy Code after the trial, was dismissed from the case.

The two defendants found liable for punitive damages who are appellants are PCC and PH. The jury found each liable for punitive damages to users of, and bystanders to users of, their products from 1965 to the date of the verdict, July 30, 1992.

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