Garlock v. Gallagher

Decision Date17 January 2003
Docket NumberNo. 1268,1268
Citation814 A.2d 1007,149 Md. App. 189
PartiesGARLOCK, INC., et al. v. Richard GALLAGHER, et al.
CourtCourt of Special Appeals of Maryland

Steven J. Parrott (Nancy L. Weller, The Parrott Firm, Annapolis, Thomas P. Bernier, John Turlik and Goldfein & Hosmer, Baltimore, on brief for appellants, Anchor Packing Co. and Garlock, Inc.) Peter A. Woolson (Deborah L. Robinson, Melodie M. Mabanta and Robinson, Woolson, P.A., on the brief for appellant, John Crane, Inc.), Baltimore, for appellants.

Edward J. Lilly (Scott Shellenberger and the Law Offices of Peter G. Angelos, on the brief for appellee, Gallagher), Baltimore, (McCarter & English, LLP, Donald S. Meringer and Brandy Peeples, on the brief for appellee, ACandS, Inc.), Baltimore, for appellees.

Argued by SONNER, PAUL E. ALPERT and CHARLES E. MOYLAN, JR., (Retired, specially assigned), JJ.


This appeal arises from the consolidated tort actions of Christine Gallagher and Mary Tamburrino, the surviving spouses of Richard Gallagher and James Tamburrino.1 The men allegedly died from asbestos that they were exposed to in their working lives, Richard Gallagher as a pipe fitter, and James Tamburrino as a warehouseman. Although plaintiffs listed more than a dozen defendants in their original complaint, at this juncture, the active defendants are John Crane, Inc.; Garlock, Inc.; Anchor Packing Company; and ACandS, Inc. Notwithstanding the consolidation of the tort actions below, some of the legal issues raised in this appeal refer only to the Gallagher plaintiffs, while others stem from the Tamburrino case. Still, there are a number of issues that overlap within the two cases. Accordingly, in an organization that makes sense to us, we have categorized the appellate questions into three sets: (I) the Gallagher issues; (II) the Tamburrino issues; and (III) the overlap issues.

I. The Gallagher Issues
A. Evidence at Trial

We begin with a review of the evidence presented at trial. In 1998, Gallagher was diagnosed with mesothelioma. The cancer obliterated the left pleura in his throat, encasing the lung and chest wall, and then spread to other organs in his body. He died before trial, but the jury heard from him by way of a videotaped deposition, taken some months before his death. From that videotape, the jury learned that Richard Gallagher worked as a pipe fitter for Bethlehem Steel in Sparrows Point, Maryland, from 1946 until his retirement in 1979.

The labyrinth of pipes in the steel plant carried steam and corrosive fluids, which needed to be contained and not released into the surrounding environment. For the better part of Gallagher's work life, the plant used asbestos, a natural mineral product, to insulate the pipes and maintain the flow of materials. Gallagher's primary asbestos exposure derived from gaskets, which pipe fitters use to seal the "flanges," or connections, between pipes. Gallagher explained that he cut and shaped gaskets prior to installation, and removed old gaskets by hand scraping or power grinding, two processes that produced visible dust. He identified Crane gaskets, as well as some other brands, and testified to working with these products "everyday." Moreover, Gallagher described his asbestos exposure from insulation, pipe covering, and cement products.

Plaintiffs buttressed Gallagher's deposition testimony with the live testimony of Andrew Youngbar, who worked with Gallagher at Bethlehem Steel for about fourteen years. Gallagher served as Youngbar's direct supervisor for a year, and the two men worked together regularly until Gallagher retired. Youngbar described Gallagher as a "hands-on supervisor."

On direct examination, Youngbar identified Crane gaskets and packing as common work materials that were placed in the "bonnet" of a valve. These products arrived at the plant in the manufacturer's packaging, along with literature discussing their content and purpose. From these enclosures, Youngbar learned that the products contained asbestos. And beyond the printed words, Youngbar recalled the "snow storm" of particles created when a gasket was removed.

Much of Youngbar's testimony focused on whether and to what extent he witnessed Gallagher working specifically with Crane products. He was sure that Gallagher had manipulated packing products because "[h]e taught [Youngbar] to use it." He also recalled Gallagher making and removing gaskets.2 At defense counsel's prodding on cross-examination, however, Youngbar could not remember a specific instance when Gallagher used a Crane gasket or packing product. To him, the products of the various manufacturers were "interchangeable," and he could only say that Gallagher used asbestos products regularly.

Along with setting out Gallagher's exposure history, plaintiffs sought to establish the dangerousness of the asbestos products. First, William Longo, Ph.D., testified as an expert in the evaluation of asbestos-containing materials. He studied Crane gaskets and determined them to contain between sixty and seventy percent chrysotile asbestos.3 Second, James Millette, Ph.D., testified as an expert in environmental science, microscopy, and the identification and quantification of asbestos fibers. He also studied a certain type of Crane gasket and determined it to contain about eighty percent chrysotile asbestos. Dr. Millette offered more complete testimony than Dr. Longo, because besides testing the asbestos content of Crane gaskets, he had studied the amount of asbestos fiber emitted into the air when workers used those gaskets in the course of routine pipe fitting. Both experts supplemented their complicated testimonials with videotaped demonstrations.

The third spoke in Gallagher's wheel of a case was medical evidence as to how his asbestos exposure harmed him. Collectively, three doctors, Samuel Hammer, M.D.; Arnold Brody, Ph.D.; and Edward Gabrielson, M.D.; explained the cause and effect relationship between asbestos and mesothelioma. They described the different types of asbestos, its chemical properties, the difference between occupational and environmental asbestos exposure, how mesothelioma develops, and the latent versus active phases of the disease. Two other doctors, Ronald Dodson, Ph.D., and Laura Welch, M.D., spoke more specifically to Gallagher's disease history. All the experts shared the opinion that Gallagher's exposure to asbestos caused the onset of his mesothelioma, which, in turn, caused his death.

The defense put forward two medical witnesses, James Crapo, M.D., and Andrew Churg, M.D., who testified primarily as to the onset of Gallagher's mesothelioma. Establishing the timing of the disease was important for determining whether Maryland's statutory cap on non-economic damages applied.

Before trial, the Gallagher plaintiffs settled their direct claims with all the defendants originally listed in the complaint, except Crane. Plaintiffs settled their claims with Garlock and Anchor with "pro-tanto" releases, which meant that any award that they achieved would be reduced by the amount of consideration paid for the releases—$365 for Garlock and $400 for Anchor. Garlock and Anchor remained in the case, however, on Crane's cross-complaint for contribution. They participated fully in the trial.

The jury found that asbestos caused Gallagher's mesothelioma, Crane's products were a substantial contributing factor in the development of the disease, and that Crane was both negligent in, and strictly liable for, the use of its products. The jury also concluded that Crane was not alone in its liability; Garlock and Anchor, along with nine other cross-defendants, owed Crane contribution.

Unbeknownst to the jury and the court, just before deliberations, Crane executed a stipulated dismissal of its cross-claims against Garlock and Anchor, pursuant to Maryland Rule 2-506. Neither cross-defendant paid any consideration for the release. Apparently, the parties signed the dismissal on April 23, 2001, following the court's recitation of the jury instructions, but they did not file it until April 25, 2001. Meanwhile, the jury returned its verdict on April 24, 2001, and the court entered final judgment in the case on June 28, 2001.

Crane's maneuver presented the court with a dispute as to how many defendants, that is, shares of liability, it should consider in computing the Gallagher award. The rub was that although Garlock and Anchor were tied to the case when the jury deliberated, according to Crane, they were no longer involved by the time the court entered the verdict. Ultimately, the circuit court ruled Crane's stipulation was invalid, counted Garlock and Anchor as distinct shareholders in the liability, and entered judgment against all three companies. The court awarded the Gallagher plaintiffs $2,157,641.52 and awarded Crane $233,418.21 each from Garlock and Anchor.

B. Sufficiency of the Evidence

Plaintiffs carried the burden of proving that Crane's negligence in producing its asbestos-containing products was a "substantial factor" in the development of Gallagher's death. Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208-09, 604 A.2d 445 (1992) (quoting Restatement (Second) of Torts § 431). Crane argues plaintiffs failed to meet that burden of proof because they presented "no evidence" of the frequency of Gallagher's use of Crane's products, and "no competent expert testimony" that Crane's products, particularly its gaskets, produced respirable asbestos fibers in amounts sufficient to cause disease.

Naturally, plaintiffs read the evidence presented at trial very differently. They emphasize Gallagher and Youngbar's testimony about Gallagher's use of Crane gaskets and packing, as well as their testimony as to how its gaskets produced dust when manipulated. They also read Dr. Longo's and Dr. Millette's testimony together as proof of the dangerous asbestos content of Crane's products.

We must review this claim of insufficient evidence...

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