Crane, Inc. v. Scribner

Decision Date11 June 2002
Docket NumberNo. 92,92
Citation800 A.2d 727,369 Md. 369
PartiesJOHN CRANE, INC. v. James SCRIBNER, et al. John Crane, Inc. and Garlock, Inc. v. James Scribner, et al.
CourtMaryland Court of Appeals

Deborah L. Robinson (Peter A. Woolson, Melodie M. Mabanta, Becky S. Brelsford of Robinson Woolson, P.A., on brief), Baltimore, for Petitioner in No. 92, Sept. Term, 2001.

John E. Griffith, Jr., Piper, Marbury, Rudnick & Wolfe LLP, Baltimore, brief of amicus curiae Maryland Defense Counsel filed on behalf of Petitioner in No. 92, Sept. Term, 2001.

Edward J. Lilly (Scott Shellenberger of Law Offices of Peter G. Angelos, on brief), Baltimore, for Respondents in No. 92, Sept. Term, 2001.

George S. Tolley, III, Dugan, Jakubowski, Babij & Spector, LLC, Timonium, brief of amicus curiae Maryland Trial Lawyers Ass'n filed on behalf of Respondents in No. 92, Sept. Term, 2001.

Steven J. Parrott (Nancy Leibowitz Weller of The Parrot Firm, Annapolis; Bernard Levinthal of Goldfein & Hosmer, Philadelphia, PA), all on brief, for Appellants in No. 99, Sept. Term, 2001.

Edward J. Lilly (Bruce C. Hill, Steven W. Smith of Law Offices of Pater G. Angelos, on brief), Baltimore, for Appellees in No. 99, Sept. Term, 2001.

Argued Before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

WILNER, Judge.

These appeals are from judgments entered by the Circuit Court for Baltimore City in actions for personal injury and wrongful death arising from the exposure of James Scribner to asbestos-containing products manufactured by petitioners, John Crane, Inc. and Garlock, Inc. The issues presented to us principally concern (1) whether Scribner's cause of action against petitioners arose prior to July 1, 1986, the effective date of a statutory limit, or "cap," on the amount of non-economic damages recoverable in a personal injury action, and (2) the procedure used by the Circuit Court to address and resolve that question.

We shall, in this case, set the proper standard for determining when, for purposes of Maryland Code, § 11-108(b) of the Courts and Judicial Proceedings Article—the cap statute—a cause of action for cancer or other disease based on exposure to asbestos arises. We shall also conclude that, if there is a genuine dispute of fact as to whether the plaintiff's cause of action arose prior to July 1, 1986, the plaintiff has the burden of establishing that the cause of action arose prior to that date, and the issue is for the trier of fact to resolve. Our resolution of these issues will result in an affirmance of the judgments entered by the Circuit Court.

BACKGROUND

(1) Procedural Background

In 1995, Mr. Scribner filed suit against Crane, Garlock, Owens-Corning Fiberglas, Inc. (OCF), Flexitallic, Inc., and several other defendants. When Scribner died shortly thereafter, in November, 1995, his widow continued his action as personal representative of his estate and, along with Scribner's two children, commenced a wrongful death action.1 The Scribners' case was consolidated with several other asbestos-related cases in a cluster that included five sets of plaintiffs and more than 35 defendants, many of which filed cross-claims and third-party claims against each other. Prior to submission of the case to the jury, the other four plaintiffs settled, the Scribners settled with OCF and one other defendant, and many of the cross-claims and third-party claims were resolved, leaving the jury to consider only the Scribners' case against petitioners Crane and Garlock and petitioners' cross-claims or third-party claims against OCF, Flexitallic, and two other former defendants.

The issues at trial concerned whether Mr. Scribner's exposure to gaskets manufactured by Garlock and gaskets and packing material manufactured by Crane was a proximate cause of the mesothelioma that became manifest years later and from which he eventually died, whether those defendants should be held negligent and strictly liable, and the appropriate amount of compensation in the event the jury found liability on the part of the defendants. At the close of evidence, Crane and Garlock moved for judgment on the ground that there was insufficient evidence regarding Scribner's exposure to their products, of Garlock's failure to warn of the danger of asbestos, and of a respirable release of asbestos fibers from Crane's products. The Scribners also moved for judgment on the issue of whether Scribner developed his mesothelioma prior to July 1, 1986. Those motions were denied. The court, at the time, was of the belief that the issue of when the cause of action arose, for purposes of the cap statute, was for it, and not the jury, to determine.

On a special verdict sheet, the jury determined that Scribner's exposure to asbestos-containing products manufactured, sold, or supplied by Crane and Garlock was a substantial contributing factor in the development of the mesothelioma that caused his death, and that those defendants were both negligent in and strictly liable for the manufacture, sale, supply, or distribution of asbestos-containing products. The jury assessed damages in the survival action in the amount of $3,500 for funeral expenses, $43,000 for medical expenses, $5,000 for economic loss, and $2,000,000 for pain and suffering. In the wrongful death action, it assessed damages to Mrs. Scribner of $1,000,000 for economic loss and $1,000,000 for pain and suffering, and to each of the two children an unitemized $370,000. It awarded Mrs. Scribner, in addition, $450,000 for loss of consortium, making the total judgment $5,241,500. On the cross- and third-party claims, the jury found that Scribner's exposure to asbestos-containing products manufactured, supplied, installed, or distributed by Flexatillic and OCF was a substantial contributing factor in the development of his mesothelioma and that both of those companies were negligent in and strictly liable for the manufacture, sale, supply, or distribution of those products.

Following the return of those verdicts and the discharge of the jury, but before entry of final judgment on the verdicts, the Court of Special Appeals rendered two decisions—Owens Corning v. Bauman, 125 Md.App. 454, 726 A.2d 745, cert. denied sub nom. Owens Corning v. Hammond, 354 Md. 572, 731 A.2d 970 (1999) and Owens-Corning v. Walatka, 125 Md.App. 313, 725 A.2d 579, cert. denied, 354 Md. 573, 731 A.2d 971 (1999)—in which it concluded, among other things, that, in asbestos-related litigation, the plaintiff had the burden of proving that his or her cause of action arose prior to the effective date of the statutory caps on non-economic damages and that, if there was a genuine dispute on that issue, it was for the trier of fact—in a jury case, the jury—to determine. Because an essential element of a wrongful death action is the death of the person, and it was undisputed that Mr. Scribner died after October 1, 1994—the effective date of the cap on non-economic damages awarded in a wrongful death action—there was little disagreement that the cap applied to the wrongful death action filed by Mrs. Scribner and the children and that the non-economic damages awarded in that action would have to be reduced from a total of $1,740,000 to $772,500.2

The dilemma arose with respect to the survival action. Having concluded that the issue could not be resolved as a matter of law and having already discharged the trial jury, the court impaneled a new jury to consider only the question of whether Mr. Scribner's cause of action arose against Crane and Garlock prior to July 1, 1986, the effective date of the cap on non-economic damages in a personal injury action. Crane and Garlock, contending that the issues of liability and when the cause of action arose were intertwined, objected to that approach and moved, unsuccessfully, for a new trial on all issues.

In what the parties refer to as Phase II, they presented to the new jury much of the same evidence regarding the disease of mesothelioma and how it grows in the body that was presented to the first jury. That evidence was supplemented by new testimony regarding doubling time, post-operative growth theory, and explosive growth theory in an effort to determine the time when Scribner's mesothelioma first developed. On that evidence, the jury determined, in a special verdict, that (1) the first cellular changes which led to the existence of Scribner's mesothelioma began prior to July 1, 1986, and (2) the mesothelioma itself arose in Scribner prior to July 1, 1986. Upon those findings, the court concluded that the cap did not apply to the survival action and, after deducting the pro rata shares of the two settling defendants also found liable (OCF and Flexitallic), entered joint and several judgments against Crane and Garlock for a total of $2,137,000 ($1,025,750 in the survival action, $225,000 for loss of consortium, and $886,250 in the wrongful death action).

Crane and Garlock appealed to the Court of Special Appeals, raising a multitude of evidentiary, substantive, and procedural issues, including some that went to the issue of the cap. They argued that the trial court erred in refusing to apply the cap to the survival action as a matter of law, that the bifurcation allowed the Scribners to present evidence to the second jury that was inconsistent with the evidence presented to the first jury, and that the court erred in including on the second verdict sheet a question that focused on when the cellular changes that led to Scribner's mesothelioma first occurred. The intermediate appellate court initially found reversible error on that last issue but then, in a corrected opinion, concluded that the error was essentially harmless and affirmed the judgments. We granted certiorari to consider (1) the proper standard to be applied in determining, for purposes of § 11-108(b), when a cause of action for cancer or other disease based...

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