Carter v. Wallace & Gale Asbestos Settlement Trust

Decision Date21 July 2014
Docket NumberNo. 84,84
CourtCourt of Special Appeals of Maryland

Sonia Carter, et al. v. Wallace & Gale Asbestos Settlement Trust, No. 84, Opinion by Greene, J.


In Maryland, apportionment of damages among different causes is only appropriate where the injury in question is reasonably divisible among multiple causes. Where the injury in question is death caused by lung cancer, and where there is a single tortfeasor involved in the litigation, apportionment of damages is inappropriate.


Under the state of the law at the time of trial in the present case, which was prior to this Court's decision in University of Maryland Medical Systems Corp. v. Muti, 426 Md. 358, 44 A.3d 380 (2012) and prior to the amendments to Maryland Rule 15-1001 (effective January 1, 2013), designated use plaintiffs were considered real parties in interest that were not required to formally join in the proceeding in order to share in an award for damages. Absent any clear direction or requirement that formal joinder was necessary, a use plaintiff's knowing consent to the litigation on his or her behalf and active participation in the litigation was the functional equivalent of joinder. So long as knowing consent to, and active participation in, the litigation occurred prior to the expiration of the statute of limitations, a use plaintiff could maintain a claim for damages where there was no formal joinder.

Circuit Court for Baltimore City

Case No.: 24-X-09-000419

Barbera, C.J.





Rodowsky, Lawrence F. (Retired, Specially


Raker, Irma S. (Retired, Specially



Opinion by Greene, J.

Battaglia and Raker, JJ., concur and dissent.

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.

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) whereWallace & 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 formcomplaint 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 numerousdefendants, 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. RogerJr. 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 motions and 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 directedthe 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...

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