Eagle-Picher Industries, Inc. v. Balbos

Citation326 Md. 179,604 A.2d 445
Decision Date01 September 1991
Docket NumberEAGLE-PICHER,No. 22,22
Parties, Prod.Liab.Rep. (CCH) P 13,124 INDUSTRIES, INC. et al. v. Paul BALBOS, Personal Representative of the Estate of Leslie Balbos et al. ,
CourtCourt of Appeals of Maryland

Louis G. Close, Jr. (Warren N. Weaver, Lisa A. Kershner, Whiteford, Taylor & Preston, Baltimore, all on brief), Dennis C. Whelley (Mann & Whelley, P.A., Towson, on the brief), for petitioners/cross respondents.

Harry S. Johnson, Gardner M. Duvall, Whiteford, Taylor & Preston, Baltimore, amicus curiae for Owen-Illinois, Inc.

Harry Goldman, Jr. (David M. Layton, Steven G. Warm, William A. Musto, Goldman & Skeen, P.A., Baltimore, all on brief), for respondents/cross petitioners.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW and KARWACKI, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (Retired), Specially Assigned.


These consolidated tort actions arise out of the deaths of two former shipyard workers. Their deaths were caused by malignant mesothelioma resulting from inhalation of microscopic asbestos fibers. Judgments in favor of the plaintiffs were appealed to the Court of Special Appeals which affirmed the award of compensatory damages and reversed the award of punitive damages. Eagle-Picher Indus. v. Balbos, 84 Md.App. 10, 578 A.2d 228 (1990). Thereafter, we granted cross petitions for certiorari. 322 Md. 737, 589 A.2d 968 (1991), 325 Md. 248, 600 A.2d 418 (1992).

The instant appeals were argued on the same day as Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633, reh'g denied, 325 Md. 665, 602 A.2d 1182 (1992). Unlike Zenobia, where the jury verdicts in favor of the plaintiffs rested exclusively on strict liability in tort under the principles of § 402A of the Restatement (Second) of Torts, the plaintiffs' verdicts in the instant matter were rendered solely on their negligence claims. 1

One of the decedents, Leslie Balbos, died in 1983. His asbestos exposure occurred during 1942-1944 when he worked as a sheet metal mechanic at the Fairfield Shipyard of Bethlehem Steel Corporation (Bethlehem). The other decedent, Sutton Knuckles (Knuckles), was employed at Bethlehem's Key Highway Shipyard from 1941 to 1982 as an iron worker-erector. He died in 1984.

From among the defendants originally named, we are concerned here only with three asbestos manufacturers and two suppliers/installers of asbestos. The three manufacturers are Eagle-Picher Industries, Inc. (Eagle), Owens-Illinois, Inc. (Owens), and Pittsburgh Corning Corporation (Pittsburgh). The two installers are ACandS, Inc. (ACandS) and Porter Hayden Company (Porter).

In the Knuckles case judgment was entered for $1.8 million in compensatory damages against certain defendants, including petitioners ACandS, Eagle, Owens, Pittsburgh, and Porter. In addition, judgments were entered in favor of the Knuckles plaintiffs for punitive damages of $100,000 against Owens and of $50,000 against Eagle. In the Balbos case judgment for compensatory damages totaling $2 million was entered on jury verdicts against certain defendants, including petitioners Eagle and Porter. No punitive damages were assessed against any defendant in Balbos.

Each petitioning defendant was allegedly a supplier of chattels, i.e., asbestos products. Each decedent was allegedly a member of a class whom the supplier should have expected to have been endangered by the product. The only theory of liability with which we are concerned is a negligent failure to warn. It is conceded that no defendant warned users of the dangers of asbestos prior to the mid-1960s. No defendant contends that it was physically impossible or economically prohibitive for it to have affixed a warning to its product at an earlier time. No defendant contends that either decedent was guilty of contributory negligence. Rather, the defendants' principal arguments address the sufficiency of any nexus between their conduct and the allegedly wrongful deaths.

Although the careful and comprehensive opinion by Judge Alpert for the Court of Special Appeals in its Balbos addressed twenty issues, 84 Md.App. 10, 578 A.2d 228, the issues that the petitioners present on this certiorari review can be consolidated into ten issues. These involve: (I) the number of defense peremptory strikes; Eagle's (II) and Porter's (III) duties to warn; Eagle's (IV) and Porter's (V) products as substantial factors in causation; Bethlehem as a sophisticated user (VI) and its conduct as a superseding cause (VII); the possible efficacy of any warning (VIII), particularly in mesothelioma cases (IX); and (X) a bundle of punitive damages arguments.

Additional facts necessary for a consideration of each question will be presented with the discussion of that issue.

I Peremptory Challenges

The petitioning defendants submit that the circuit court erred by denying them their right to participate in the exercise of six peremptory challenges. Maryland Rule 2-512(h) governs. It reads:

"Each party is permitted four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impanelled. For purposes of this section, several plaintiffs or several defendants shall be considered as a single party unless the court determines that adverse or hostile interests between plaintiffs or between defendants justify allowing to each of them separate peremptory challenges not exceeding the number available to a single party. The parties shall simultaneously exercise their peremptory challenges by striking from the list."

The problem here arose near the end of a day devoted to voir dire. The working premise of the circuit judge had been to consider manufacturer defendants and installer defendants as adverse or hostile interests, to each of which the court would allow separate peremptory challenges equal to the number available to a single party. This approach had been used in other asbestos disease cases in Maryland trial courts. Inasmuch as the circuit judge had determined to seat four alternate jurors, that approach would allow a total of eighteen peremptory strikes and require, at a minimum, a venire of thirty-four persons (12 + 4 + 18). Excuses and challenges for cause had reduced the venire to twenty-eight persons.

The court explored alternatives with counsel. The plaintiffs were willing to waive two challenges and to exercise only four, thereby making a total of eight challenges available for all defendants (12 + 4 + 4 + 8 = 28). For present purposes there were two separate interests on the defendants' side of the case, the petitioning defendants and MCIC, Inc., an installer which had separate counsel. MCIC insisted on independently exercising six peremptories. 2 Petitioners insisted that they be allowed to exercise six peremptory challenges, separately from MCIC. 3 The circuit court ruled that there would be eight peremptory challenges exercised on the defendants' side, four by petitioners and four by MCIC, separately from each other.

As a result of this ruling, the petitioning defendants did not participate in exercising six peremptory strikes. Further, by treating MCIC as a separate interest, the court necessarily concluded that MCIC and the petitioning defendants had adverse or hostile interests. The trial judge need not expressly have articulated that finding. See Kloetzli v. Kalmbacher, 65 Md.App. 595, 599, 501 A.2d 499, 501 (1985), cert. denied, 305 Md. 621, 505 A.2d 1342 (1986). Petitioners, who had urged in the circuit court that they be treated as an interest adverse to MCIC, do not question the underlying finding of adversity. 4

Petitioners' argument is that, upon the finding of adverse interest, Rule 2-512(h) "requires that ... adverse co-parties are entitled to participate in the exercise of the same number of peremptories as the co-parties would otherwise collectively share in the absence of adversity." Brief of ACandS, et al., at 38. In terms of a jury of twelve persons with four alternates, petitioners' submission is that they were entitled to participate in six strikes, so that MCIC would have been entitled to exercise six strikes as well.

This argument ignores a previous interpretation of Rule 2-512(h) in St. Luke Evangelical Lutheran Church v. Smith, 318 Md. 337, 568 A.2d 35 (1990), where we stated: "When there is a single party on one side and multiple parties on the other, the single party will be entitled to four peremptory challenges while the coparties will ordinarily share four strikes. A single party, then, will have twice as many strikes as each opposing coparty. If, however, the court rules that the coparties have adverse or hostile interests, those parties may be allowed up to four peremptory strikes each."

Id. at 342-43, 568 A.2d at 37 (emphasis added). Although this language clearly conveys that the trial judge has discretion to limit each adverse coparty's interest to less than a full allotment of strikes, the quoted language was not essential to the outcome of the case. Here, after considering the history and purpose of Rule 2-512(h), we confirm the interpretation in St. Luke Church and in the instant case by the Court of Special Appeals.

The Court of Special Appeals interpreted Rule 2-512(h) to provide that, upon finding hostility with a coparty, the trial court, in its discretion, could divide among the separate interests the strikes to which, absent hostility, all plaintiffs or all defendants were entitled, to be exercised separately, or the court could grant additional strikes and allocate the peremptories, so increased, among the separate interests, to be exercised separately by each interest. Balbos, 84 Md.App. at 85, 578 A.2d at 265. The Court of Special Appeals further held that "[t]he only limit placed on the discretion of the trial judge is that the number of challenges to be exercised separately by an adverse [interest] may not exceed the number available to...

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