Carter v. Trust

• Decision Date: 21 July 2014
• Docket Number: Sept. Term, 2013.,No. 84,84
• Citation: 439 Md. 333,96 A.3d 147
• Parties: Sonia CARTER, et al. v. The WALLACE & GALE ASBESTOS SETTLEMENT TRUST.
• Court: Maryland Court of Appeals

439 Md. 333

96 A.3d 147

Sonia CARTER, et al.

v.The WALLACE & GALE ASBESTOS SETTLEMENT TRUST.

No. 84, Sept. Term, 2013.

Court of Appeals of Maryland.

July 21, 2014.

Michael T. Edmonds (Law Offices of Peter T. Nicholl, Baltimore, MD; John Amato, IV, Goodman, Meagher & Enoch, LLP, Baltimore, MD), on brief, for Petitioners.

Mitchell Y. Mirviss (David S. Gray, Thomasina E. Poirot, Venable, LLP, Baltimore, MD; Theodore F. Roberts, Brian A. Zemil, Venable, LLP, Towson, MD), on brief, for Respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, McDONALD, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), and IRMA S. RAKER (Retired, Specially Assigned), JJ.

GREENE, J.

In the present case, we are called to decide whether apportionment of damages is appropriate in the wrongful death and asbestos litigation context, and whether the “use plaintiffs” ¹ here are precluded from recovering damages by not formally joining in the proceedings. We reverse the judgment of the Court of Special Appeals and hold that the intermediate appellate court erred when it held that the trial court erroneously refused to allow expert testimony and jury instructions on apportionment of damages, and when it held that the failure of the use plaintiffs to formally join in the action before the statute of limitations had run precluded them from recovering damages.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Parties and Cases

This case is an appeal from judgments in favor of plaintiffs and use plaintiffs in four asbestos cases that were consolidated for trial in Baltimore City. All of the plaintiffs were separately awarded damages for their wrongful death claims against Wallace & Gale Asbestos Settlement Trust (“WGAST”). The four decedents who are the subject of these consolidated cases, Levester James (“James”), Mayso A. Lawrence Sr. (“Lawrence”), Rufus E. Carter (“Carter”), and Roger C. Hewitt, Sr. (“Hewitt”), all worked for various companies (most frequently at Bethlehem Steel and American Smelting and Refining Company) where Wallace & Gale, Co. (“W & G”) installed asbestos-containing products. W & G was a Baltimore-based insulation and roofing contractor that was established in 1881.

W & G initially handled all asbestos claims filed against it until W & G filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code on November 16, 1985. Thereafter, the United States Bankruptcy Court for the District of Maryland entered an order affirming the Fourth Amended Joint Plan of Reorganization. This created WGAST, an entity that assumed liability for asbestos claims against W & G. On November 2, 2010, the United States Bankruptcy Court for the District of Maryland approved the “Second Amended and Restated Asbestos BI Claims Resolution Procedures.” In part, the procedures provided that claims may be brought against WGAST by either December 28, 2010, or the statute of limitations date, whichever is later. Based on the dates when the four complaints were amended to add wrongful death counts, the last dates to bring claims under this order were December 28, 2010 in the Carter and James cases, February 21, 2011 in the Lawrence case, and July 24, 2012 in the Hewitt case.

The Carter case

Carter worked as a laborer and crane operator at the Baltimore-based copper refinery American Smelting and Refining Company (“ASARCO”) from 1966 to 1975. He was exposed to asbestos from insulation applied to pipes. Carter died from lung cancer in November 2003. On February 17, 2006, Johanna Carter, as personal representative of Carter's estate, and Sonia, Carter's surviving daughter, filed an amended short form complaint against numerous defendants, claiming loss of consortium, negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. The complaint listed Carter's other children as use plaintiffs: Kenneth, Rufus Jr., and Natasha. Thereafter, Sonia filed a Notice to Substitute Parties, advising that Johanna had been removed as personal representative and Sonia had been appointed as successor because Johanna's marriage to Carter had been previously annulled.

The James case

James was a laborer in ASARCO's tank room from 1968 to 1972, where he was exposed to asbestos in pipe insulation. James died from lung cancer on July 4, 2004, at age 70. On January 5, 2007, James's stepdaughter Willean Peoples, as personal representative of his estate, filed a short form asbestos complaint against numerous defendants, including WGAST, containing counts of negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. James's children, Kevin and Monica, and his wife, Katherine, were named in the complaint as use plaintiffs.

The Lawrence case

Lawrence worked as a laborer at ASARCO from 1968 to 1969 and in Bethlehem Steel's “68–inch hot strip mill” at Sparrows Point from 1970 to 1979, where he was exposed to asbestos from pipe insulation. Lawrence died from lung cancer on October 8, 2007, at age 65. On February 21, 2008, Arthur L. Drager, as personal representative of Lawrence's estate and Bernice, Lawrence's widow, filed a short form asbestos complaint against numerous defendants, including WGAST, alleging negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. Lawrence's seven children, Mayso Jr., Tyrone, Cephas, Sean, Elaine, Phaedra, and Tanesha, were named in the complaint as use plaintiffs.

The Hewitt case

Hewitt worked as a laborer, mechanic steamfitter, and pipefitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel from 1946 to 1978, where he was exposed to asbestos in pipe insulation supplied by W & G. Hewitt was a long-time smoker, smoking half a pack to a full pack of cigarettes every day for 65 years. He died as a result of complications from lung cancer on December 20, 2008, at age 81. On September 7, 2006, prior to his death, Hewitt and his wife, Annette, filed a short form asbestos complaint against numerous defendants, alleging that Hewitt had been diagnosed with asbestosis and asbestos-related diseases in April 2006. On January 5, 2007, plaintiffs filed an Amendment by interlineation, adding WGAST as a defendant. Following Hewitt's death, Roger Jr., Hewitt's son, filed a Notice to Substitute Parties, notifying the Circuit Court for Baltimore City and the parties that he, as personal representative of Hewitt's estate, was added as a party plaintiff in the survival action. On July 24, 2009, Annette and Roger Jr. 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 added a count alleging wrongful death. Hewitt's daughters, Penny and Idalyn, were named in the amended complaint as use plaintiffs. Roger Jr. also filed an “Amendment by Interlineation to Add Disease Process,” alleging that Hewitt also suffered from lung cancer causally connected to his exposure to asbestos and asbestos products.

B. The Proceedings Below

On November 10, 2009, the Circuit Court for Baltimore City consolidated ten asbestos cases for trial, including the four at issue in this appeal. The trial was scheduled to begin on January 18, 2011. According to the scheduling order, plaintiffs were required to produce all fact witnesses for deposition by September 15, 2010, but this did not occur. Plaintiffs allege that it is typical of all asbestos cases tried in Baltimore City to defer all expert and family member depositions until the completion of settlement negotiations, and that this process was the reason for the delay in producing such fact witnesses. On January 3, 2011, WGAST filed two motions to exclude all fact and expert witnesses. The trial judge denied both motionsand allowed settlement negotiations between all the parties to continue. Ultimately, settlements were entered into among all plaintiffs and defendants except for defendant WGAST. The trial judge thereafter held summary judgment motions hearings, granted summary judgment in four other plaintiffs' cases, and denied summary judgment in the four cases at bar. Following those hearings, the only remaining claims were against WGAST in the Carter, James,Lawrence, and Hewitt cases, which were consolidated for trial and are now at issue in this appeal.

On January 17, 2011, the day before the scheduled trial date, the trial judge directed the plaintiffs to provide discovery and participate in depositions prior to the commencement of trial, which was continued to February 9, 2011. During that time, WGAST conducted thirty-one depositions, including depositions of experts, party plaintiffs, and individuals identified as use plaintiffs. A fifteen-day jury trial took place between February 9 and March 2, 2011, and the jury ultimately returned verdicts in favor of the plaintiffs, including those listed as use plaintiffs.

Apportionment in the Hewitt case

Hewitt worked at Bethlehem Steel for over thirty years and smoked half a pack to a pack of cigarettes a day. He was diagnosed with lung cancer in October 2008 and died two months later. During trial, Dr. Steven Zimmet testified that asbestos exposure was a substantial contributing factor to Hewitt's lung cancer and that smoking was also a cause of Hewitt's lung cancer. Dr. Zimmet further testified that he could not differentiate between the two causes because the two exposures are “not just additive, they are synergistic ² which means they multiply exposures.” WGAST admitted that Hewitt had asbestosis that contributed to his lung cancer and requested that the Circuit Court allow apportionment of the damages. Hewitt's counsel objected on the grounds that in Maryland, apportionment had never been applied in the asbestos litigation context and also, that apportionment was theoretically impossible in this situation. WGAST's counsel responded that there was a “strong...