Georgia-Pacific Corp. v. Pransky

• Decision Date: 11 June 2002
• Docket Number: No. 107,107
• Parties: GEORGIA-PACIFIC CORPORATION v. Lisa J. PRANSKY et al.
• Court: Maryland Court of Appeals

800 A.2d 722

369 Md. 360

GEORGIA-PACIFIC CORPORATION v. Lisa J. PRANSKY et al.

No. 107, Sept. Term, 2001.

Court of Appeals of Maryland.

June 11, 2002.

Reconsideration Denied July 17, 2002.

John Parker Sweeney (T. Sky Woodward, E. Benjamin Alliker and Angela N. Whittaker of Miles & Stockbridge, P.C., Baltimore; R. Thomas Radcliffe, Jr., Church, Loker, Radcliffe & Silver, P.A., Baltimore; Dan K. Webb, Winston & Strawn, Chicago, IL), all on brief, for petitioner.

Sara Sadler Turnipseed, Charles E. Watkins, III, of Nelson Millins Riley & Scarborough, L.L.P., Atlanta, GA, on brief for petitioner.

John E. Griffith, Jr., Piper, Marbury, Rudnick & Wolfe LLP, Baltimore, Brief of amicus curiae Maryland Defense Council filed on behalf of Petitioner.

Melvin J. Sykes, Baltimore; Stephen W. Wilson, Michael B. Leh of Greitzer & Locks, Philadelphia, PA; Stephen J. Nolan, Nolan, Plumhoff & Williams, Chtd., Towson, all on brief, for respondents.

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

WILNER, Judge.

After concluding that Lisa Pransky contracted mesothelioma from her exposure to an asbestos-containing joint compound manufactured and distributed by petitioner, Georgia-Pacific Corporation, a jury in the Circuit Court for Montgomery County awarded Ms. Pransky and her husband damages of $9,188,000. Of that sum, $4,800,000 was for Ms. Pransky's non-economic damages. The Court of Special Appeals affirmed the judgment entered upon that verdict.

We granted certiorari to consider whether (1) under the test laid down in Eagle-Picher Indus. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992) (Balbos), sufficient evidence was presented to show that Ms. Pransky's exposure to petitioner's product was a substantial factor in causing her mesothelioma, and (2) if so, sufficient evidence was presented to show that her cause of action arose prior to July 1, 1986—the effective date of a statutory cap on the amount of non-economic damages that may be awarded in a personal injury action. We shall affirm the judgment of the Court of Special Appeals.

Substantial Factor Evidence

That Ms. Pransky had mesothelioma, from which she died at the age of 34 shortly after trial, is not in dispute. She attributed the disease to her exposure 25 years earlier to the asbestos-containing joint compound material, manufactured and distributed by petitioner, that her father used in the renovation of the basement of their home. Shortly after the family moved into the home in 1972, Lisa's father, a heating and air conditioning contractor, converted the unfinished basement into a recreation room. With occasional help from a carpenter, he did the work himself, in the evenings and on weekends. It involved putting up studs along the walls and ceiling, nailing drywall to the studs, taping the seams, applying petitioner's compound to the tape, and sanding the compound to get a smooth seam. He also applied the compound to the ceiling to create a stippled effect.

Lisa did not use the compound itself—she was only eight years old when the work was done. She was frequently in the basement while her father was working, however, either watching him or helping her mother with the laundry. Evidence was presented that the sanding created a lot of dust, that Lisa was exposed to that dust when she was in the basement, and that the dust was picked up by the ventilation system and spread throughout the house. Following completion of the work, Lisa played in the basement and was further exposed to dust occasionally emanating from the compound on the ceiling for about another 10 years, until she left the home to go to college.

These basic facts were not in substantial dispute. The issue was whether they sufficed to show that Lisa's mesothelioma was caused by that exposure. Petitioner produced a great deal of medical evidence to the effect that Lisa's mesothelioma was not asbestos-related at all and that, if it was, it emanated from the unusually high ambient levels of asbestos in her neighborhood, rather than from her limited exposure to petitioner's joint compound. That evidence, if credited by the jury, would have been more than sufficient to justify a verdict in favor of petitioner. The jury apparently was not persuaded by that evidence, however, for it found otherwise. On appeal, we must view the evidence, and the inferences reasonably deducible from the evidence, in a light most favorable to the Pranskys, looking only to whether, viewed in that manner, it was legally sufficient to create a triable issue. See Houston v. Safeway Stores, Inc., 346 Md. 503, 521, 697 A.2d 851, 859 (1997)

(observing that the standard for appellate review is whether there is "any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, ..."); Impala Platinum Ltd. v. Impala Sales, Inc., 283 Md. 296, 328, 389 A.2d 887, 906 (1978) (same); Owens-Corning v. Walatka, 125 Md.App. 313, 342, 725 A.2d 579, 593 (1999) (same).

Because Lisa did not handle the joint compound herself, she is to be regarded as a "bystander." We dealt with the issue of causation, with respect to a bystander, in Balbos. The plaintiffs there, Balbos and Knuckles, both worked in a shipyard during World War II. Although they did not handle asbestos products directly, they each worked in the engine rooms of ships—large but confined areas—where they were exposed to "great quantities" of Eagle-Picher's asbestos products. Balbos, supra, 326 Md. at 213, 604 A.2d at 461. We concluded that the evidence of that exposure sufficed to establish causation with respect to Eagle-Picher.

One of the plaintiffs, Knuckles, also asserted liability against another defendant, Porter-Hayden, based on evidence that it sold asbestos products that were used in other parts of the shipyard. Knuckles sought to connect his mesothelioma to the Porter-Hayden product under the "fiber drift theory," which assumes that asbestos fibers may become airborne or re-entrained and thus be carried from their source to other areas, and that, as a result, anyone present in the facility where the product exists is entitled to have the jury determine causation with respect to that product. Id. at 216-17, 604 A.2d at 463. We rejected that theory as so attenuating causation-in-fact as to be "inconsistent with the requirement of Maryland law that an actor's negligence be a substantial factor in causing the injury." Id. at 217, 604 A.2d at 463. The exposure must be more direct; the plaintiff must have been in or very near the presence of the asbestos-containing product and able to inhale fibers released from that product. In that regard, we stated:

"Whether the exposure of any given bystander to any particular supplier's product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant's product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the work place and of the relationship between the activities of the direct users of the product and

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