Keene Corp., Inc. v. Hall

• Decision Date: 01 September 1992
• Docket Number: No. 236,236
• Citation: 626 A.2d 997,96 Md.App. 644
• Parties: , Prod.Liab.Rep. (CCH) P 13,693 KEENE CORPORATION, INC. v. Daniel HALL, et ux. ,
• Court: Court of Special Appeals of Maryland

Page 644

96 Md.App. 644

626 A.2d 997, Prod.Liab.Rep. (CCH) P 13,693

KEENE CORPORATION, INC. v. Daniel HALL, et ux.

No. 236, Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 1, 1993.

Julia K. Evans (F. Ford Loker and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellant.

Joseph A. Vansant (Law Offices of Peter G. Angelos, on the brief), Baltimore, for appellees.

Argued before GARRITY, DAVIS and MOTZ, JJ.

MOTZ, Judge.

In October 1988, appellees, David Hall, a laborer at the Bethlehem Steel Sparrows Point Steel Mill from 1936 to 1939 and at the Bethlehem Steel Sparrows Point Shipyard from 1940 to 1976, and his wife, Henrietta, filed this action in the Circuit Court for Baltimore City against various manufacturers or providers of asbestos products and their successors, including appellant, Keene Corporation. The Halls alleged, inter alia, product defect and negligence and claimed compensatory and punitive damages. Their case was consolidated with four others and tried for four and one half weeks before a jury. The jury awarded the Halls no punitive damages; it did award them $471,323.78 in compensatory damages ($466,000 of which was for non-economic damages) against Keene, Owens-Illinois, Inc. and the Manville Asbestos Disease Compensation Trust Fund. Verdicts in favor of other plaintiffs were also returned but, due to set-offs from prior settlements, no other judgments against Keene were entered. Accordingly, no other plaintiffs are appellees here; moreover, no other defendant has appealed. On appeal, Keene raises five issues, which we have reordered, but not reworded, as follows:

1. Whether the trial court erred in permitting Dr. Gerrit Schepers to testify upon scientifically unsound medical diagnostic techniques and resultant opinions in violation of the Frye/Reed Standard.

2. Whether the trial court erred in failing to enter judgment for Keene in that the testimony of Plaintiff's expert witness was insufficient to support a finding of a causal relationship between plaintiff's laryngeal cancer and his exposure to asbestos.

3. Whether the trial court erred in denying Keene's motion for mistrial when plaintiff's counsel during rebuttal argument referred to defendants as corporate liars, mutilators, murderers, and common criminals.

4. Whether the partiality and improper conduct of the trial judge against defendants and their counsel so tainted the proceedings and prejudiced the jury as to warrant a new trial.

5. Whether the errors, omissions and inaudible passages in the trial transcript have so prejudiced Keene's right to appellate review as to require a new trial.

(i)

At trial, the Halls' expert, Dr. Gerrit Schepers, testified that, in his opinion, the cause of Mr. Hall's laryngeal cancer was exposure to asbestos. That opinion was based on several factors, one of which was Dr. Schepers's use of polarized light microscopy (PLM) to identify asbestos fibers embedded in Mr. Hall's tissue at the site of his tumor. Keene asserts that asbestos fibers cannot be identified through the use of PLM on a stained tissue slide and that Dr. Schepers's attempt to do so is a use of PLM that is neither reliable nor generally accepted. Accordingly, Keene claims that permitting Dr. Schepers to testify as to this use of PLM was error. Specifically, Keene asserts that this testimony violated the standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923)- and adopted in Maryland in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), i.e., a methodology must be "generally accepted as reliable within the expert's particular scientific field." Reed, 283 Md. at 381, 391 A.2d 364.

The lower court held a Frye hearing on the admissibility of Dr. Schepers's use of PLM on human tissue. Dr. Schepers, who was not the treating physician of any of the plaintiffs but has a background in the study of dust diseases and has testified as an expert for plaintiffs in numerous asbestos cases, explained his use of PLM. He stated that he examines a tissue sample under a microscope, equipped with a polarizing filter. He then rotates the stage which holds the tissue sample until refractive materials become visible. Dr. Schepers testified that, by using a quartz filter, dirt or collagen in the tissue sample are filtered out. By manipulating the power setting on the microscope, Dr. Schepers claims the ability to identify asbestos fibers in human tissue. Dr. Schepers then photographs the polarized material. Plaintiffs proffered that Dr. Schepers's photomicrographs were evidence that asbestos fibers were visible in plaintiffs' tissue samples and confirmed the causation link between asbestos exposure generally and development of the specific malignancy under consideration.

Defendants' expert, Dr. Grover Hutchins, a board certified pathologist, testified that this use of PLM was not generally accepted in the medical community. He explained that although PLM is useful to identify asbestos in inanimate building materials, he knew of no one else who has used PLM, as Dr. Schepers did, to identify asbestos fibers in human tissue and had found "no reference [in research materials] to anyone using this technique." Dr. Hutchins further testified unequivocally that, in his opinion, asbestos fibers cannot be identified through the use of PLM on a stained slide of human tissue. Rather, Dr. Hutchins opined that asbestos fibers could be visualized by using PLM on human tissue samples only after undertaking a very extensive process. One must take the tissue, digest it, accumulate the broken down tissue in a test tube, wash it, resuspend it, put it on a micropore filter and then, and only then, examine it with PLM or some other method. Alternatively, tissue must be burned away leaving residue, which is only then subject to PLM examination. Even if these elaborate processes are used, Dr. Hutchins stated that PLM is of limited value in examining human tissue because of its inability to differentiate among asbestos fibers and non-asbestos fibers of similar dimension in the tissue. Without digestion or burning, according to Dr. Hutchins, it is impossible to detect asbestos fibers in tissue because there are a number of elements that polarize, creating a confusing image. (It is conceded that Dr. Schepers did not employ the tissue digestion or burning preparations described by Dr. Hutchins.) Dr. Hutchins believed that the material in Dr. Schepers's photomicrographs, identified as asbestos by Dr. Schepers, was actually collagen. Dr. Hutchins cited and discussed two scientific articles as supporting his opinion that Dr. Schepers's use of PLM was neither reliable nor generally accepted in the scientific community.

Dr. Frank Haig, a professor of theoretical physics, also testified as an expert for the plaintiffs. Dr. Haig reviewed Dr. Schepers's deposition testimony and his photomicrographs and stated that Dr. Schepers's methodology was theoretically possible, in that pure and uncoated asbestos fibers have a known refractive that would allow visualization by PLM. Dr. Haig asserted that the underlying "physical principles were very well known, very well accepted" but that he did not know if PLM was generally used to detect asbestos fibers in human tissue and further that he did not know of any other doctor who had utilized PLM in this way to detect the presence of asbestos fibers in human tissue. Furthermore, he could not offer any scientific literature in which others had used PLM as Dr. Schepers did.

Dr. Schepers himself was also unable to name any other doctors who had employed PLM as he had. When asked by the trial court whether other researchers utilized the same technique as he did in this case, Dr. Schepers replied: "I can't answer for what other people don't know" and "other people use other methods." He referred to "institutes" in Germany and England that had published articles on this use of PLM. No book or article from these "institutes," however, was introduced as evidence at the Frye hearing; indeed, at that hearing, Dr. Schepers did not name even one author or article supporting his use of PLM.

At the conclusion of the Frye hearing, the trial court stated:

both [of plaintiff's] witnesses and Dr. Hutchins, and if I haven't read it, but they say the article as well, says it [PLM] just isn't a technique that's been used.

Nevertheless, the trial court decided

... to let it in. I have a lot of problems, as I expressed. The basic underlying technique is an accepted one, the polarized light and the phase contrast are accepted ways of bringing up the invisible. I have testimony from defendants' expert that it can't be done. I have a technique that hasn't been done according to--but I do not believe that the fact that it hasn't been done means that it's an improper technique under the Frye standard.

I really am not at all convinced that this is a Frye-type problem. If I were, I would be more conducive to the defendants' arguments, but I think what has happened here is that the plaintiffs' expert has used accepted things to bring about results that aren't accepted, that there is no Frye problem as such, and that the only answer to whatever effect Dr. Schepers' testimony will have is for the defendants to bring back Dr. Hutchins or whoever else they care to bring to try to convince the jurors that what Dr. Schepers will tell them is asbestos fiber either isn't asbestos fiber or that there's no way he could identify it as such. So I'm going to let it in.

Initially, the Halls assert that the Frye- Reed rule is inapplicable here for two reasons. First, they claim that the Frye- Reed standard is inapplicable in Maryland in civil cases. Second, they argue that, even if applicable in civil cases, Frye- Reed is "only appropriate as a test of novel scientific principles or techniques, not the application of those techniques in a specific case."

For the first argument, the Halls rely on three cases: Sabatier v. State Farm...