Eagle-Picher Industries, Inc. v. Balbos

• Decision Date: 01 September 1989
• Docket Number: No. 1739,EAGLE-PICHER,1739
• Citation: 84 Md.App. 10,578 A.2d 228
• Parties: , Prod.Liab.Rep. (CCH) P 12,562 INDUSTRIES, INC., et al. v. Paul BALBOS, Personal Representative of the Estate of Leslie Balbos, et al. ,
• Court: Court of Special Appeals of Maryland

Page 10

84 Md.App. 10

578 A.2d 228, Prod.Liab.Rep. (CCH) P 12,562

EAGLE-PICHER INDUSTRIES, INC., et al. v. Paul BALBOS, Personal Representative of the Estate of Leslie Balbos, et al.

No. 1739, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Aug. 29, 1990.

Dennis C. Whelley (Mann & Whelley, on the brief), Towson, for appellant, Eagle-Picher Industries, Inc.

Warren N. Weaver (Louis G. Close, Jr., Lisa A. Kershner and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellants, ACandS, Inc., Owen-Illinois, Inc., Pittsburgh Corning Corp. and Porter Hayden Co.

(H. Emslie Parks, Anthony J. Breschi, John F. Eckhart and Parks, Hansen & Ditch, on the brief), Towson, for appellant, Celotex Corp. Harry Goldman, Jr. (David M. Layton, Steven G. Warm and Goldman and Skeen, P.A., on the brief), Baltimore, for appellees.

Argued before ALPERT, ROBERT M. BELL and CATHELL, JJ.

ALPERT, Judge.

In this, the last decade of the 20th Century, our judicial system faces an apocalypse in the guise of asbestos cases. As did the "Apocalyptic beast," ¹ asbestos rose up "as from the depths of the sea," after having lain dormant for decades, to plague our industries initially and our judicial system consequentially, spreading cancer and asbestosis to thousands of workers along the way.

This 10-week case is just one of more than 8,000 asbestos cases that have been filed in Maryland since 1980. ² Although estimates vary, it has been reported that there are as many as 50,000 asbestos cases pending nationally. ³ Quite apart from the sheer magnitude in numbers, asbestos litigation presents features that, unfortunately, are common to complex litigation. Most of the cases are of the multi-litigant variety, averaging as many as twenty defendants. ⁴ When the multitude of cross-claims between those defendants are factored in, the complex metamorphosizes into the maxi-complex. Thus, it seems quite possible that our dockets shall be visited with asbestos litigation well into the next century, each case presenting its unique yet similar tragic scenario.

The immensity of the problem has already required at least one innovative approach here in Maryland. The Court of Appeals recently added new § (d) to Rule 2-327 (Transfer of Action) that permits, inter alia, the transfer of " 'any claims or issues' in actions to a circuit court in which the actions might have been brought and in which similar actions are pending." See 112th Report of the Standing Committee on Rules of Practice and Procedure, May 23, 1990.

Leslie Balbos and Sutton Knuckles are cast in the leading roles of the tragedy that here unfolds, for they were the victims of mesothelioma, a form of cancer caused by exposure to asbestos. Cast in the roles of the transgressors are:

ACandS, Inc.--Armstrong Contracting and Supply Company--a Delaware corporation which has operated since 1958. ACandS installed asbestos-containing thermal insulation products and is a defendant in the Knuckles case.

Celotex Corporation--a successor to the Philip Carey Company. Celotex manufactured and/or sold asbestos-containing pipe covering, block, and cement from 1906 to 1984 and is a defendant in both the Balbos and Knuckles cases.

Eagle-Picher Industries, Inc.--manufactured asbestos-containing insulating cement from approximately 1930 to 1971, and distributed under its own label Owens-Corning Fiberglass Hylo block and pipe covering from 1960 to 1972. Eagle-Picher is a defendant in both the Balbos and Knuckles case.

Owens-Illinois, Inc.--manufactured and sold Kaylo brand asbestos-containing pipe covering and block insulation from 1948 to 1958 and is a defendant in the Knuckles case.

Pittsburgh Corning Corporation--manufactured and sold "unibestos" pipe covering from 1962 to 1972. A different company manufactured and sold "unibestos" prior to 1962. Pittsburgh Corning is a defendant in the Knuckles case.

Porter Hayden Company--installed asbestos-containing insulation products and operated in four states: Maryland New Jersey, Virginia, and North Carolina. Porter Hayden is a defendant in both the Balbos and Knuckles cases.

Decedent Leslie Balbos was employed as a sheet metal mechanic at the Fairfield Shipyard from 1942 to 1944. The Fairfield Shipyard was owned and operated by Bethlehem Steel and engaged solely in the new construction of naval ships. Mr. Balbos was diagnosed in November 1982 as having malignant mesothelioma (cancer of the pleura or lining of the lung) caused by occupational exposure to asbestos during his employment at the shipyard. He died of that disease in September 1983.

On October 2, 1984, Anne Balbos, as surviving widow and personal representative of her husband's estate, and Paul Balbos, as the sole surviving adult child of Leslie Balbos, filed wrongful death and survival actions in the Circuit Court for Baltimore City against eighteen manufacturers, installers, and suppliers of asbestos-containing products including among the named defendants Celotex Corporation, Eagle-Picher Industries, Inc., and Porter Hayden Company. The plaintiffs alleged defendants' negligence, breach of warranty, and strict liability. Anne Balbos died in March 1985, and the complaint was then amended. The amended complaint was brought by Paul Balbos, individually and as substitute personal representative for the estate of Leslie Balbos, and Robert Fox, as personal representative for the estate of Anne Balbos.

Decedent Sutton Knuckles was employed as an "erector" at the Key Highway Shipyard owned and operated by Bethlehem Steel from 1941 to 1982. As an erector, Mr. Knuckles worked primarily with heavy pieces of steel used in the repair of ships. The Key Highway Shipyard was a major ship repair facility that serviced ships from all over the world. Mr. Knuckles was diagnosed in August 1984 as having malignant mesothelioma caused by occupational exposure to asbestos during his employment at the shipyard. He died of that disease in November 1984.

Sutton Knuckles filed a complaint in the Circuit Court for Baltimore City, which was amended upon his death to designate Lucille Killian, Mr. Knuckles's sister, as the personal representative for his estate. The amended complaint named a total of 28 defendants, including ACandS, Inc.; Celotex Corporation; Eagle-Picher Industries, Inc.; Owens-Illinois, Inc.; Pittsburgh Corning Corporation; and Porter Hayden Company. The amended complaint contained eight counts, including claims based on negligence, breach of warranty, and strict liability.

The Balbos case and the Knuckles case were consolidated for trial. In summary, both cases involved claims for damages arising out of asbestos-related cancer deaths from mesothelioma caused by occupational exposure to asbestos and alleged negligence, breach of warranty, and strict liability.

A jury trial involving 14 defendants was conducted in the Circuit Court for Baltimore City before Judge David Ross. The jury returned verdicts in favor of the plaintiffs on the negligence claims ⁵ and in favor of all the defendants on the product defect claims. ⁶ In the Knuckles case, the jury assessed punitive damages against Eagle-Picher and Owens-Illinois, Inc. ⁷ The court denied the defendants' post-trial motions for judgment notwithstanding the verdict or, in the alternative, for a new trial.

All of the defendants mentioned above appealed. Collectively, they raise a total of twenty issues as set out below.

1. The trial court erred in excluding the testimony of Professor Howard Ayer.

2. The trial court erred in failing to order a new trial because the jury's verdicts were inconsistent as a matter of law.

3. The trial court erred in failing to direct judgment for Porter Hayden Company in that there was insufficient evidence that decedent Knuckles was exposed to any product for which this appellant was legally responsible.

4. Plaintiffs failed to present legally sufficient evidence to establish that they inhaled sufficient respirable asbestos from Eagle-Picher products to render such products a substantial factor in causing them harm.

5. The trial court erred in refusing to instruct the jury in respect to the definition of "substantial factor" in the context of asbestos-related diseases.

6. Plaintiffs failed to present legally sufficient evidence to establish that the defendants' failure to place warnings on their products amounted to negligence.

7. The trial court erred in refusing to instruct the jury in respect to the defense of contributory negligence.

8. The trial court erred in refusing to instruct the jury that the focus of their analysis of allegedly culpable conduct should be confined to conduct at and before plaintiff's last mesothelioma-producing exposure to asbestos.

9. The trial court erred in failing to give appellant's requested instructions on the sophisticated user defense and superseding cause.

10. Plaintiffs failed to present legally sufficient evidence to establish that Eagle-Picher's conduct was so egregious as to support an award of punitive damages.

11. The trial court erred in denying Eagle-Picher's motion to dismiss Knuckles' claim for punitive damages in count one of his amended complaint seeking damages for negligence on grounds the complaint failed to state a claim for punitive damages upon which relief could be granted.

12. The trial court erred in denying Eagle-Picher's motion to dismiss Knuckles' claim for punitive damages in that such claim was unconstitutional and in violation of the Maryland Declaration of Rights.

13. The award of punitive damages violates Owens-Illinois' right to due process of law by subjecting the defendant to multiple punishments for the same alleged wrong.

14. The award of punitive damages violates Owens-Illinois' right to due process of law because the standards for calculating the sum of the award gave no guidance regarding the appropriate amount of punishment.

15. The trial court erroneously deprived appellant of its right to participate in...