Kennedy v. Lasting Paints, Inc.

• Decision Date: 07 May 2008
• Docket Number: No. 88, Sept. Term, 2007.,88, Sept. Term, 2007.
• Citation: 947 A.2d 503,404 Md. 427
• Parties: Renee KENNEDY, Next Friend, et al. v. LASTING PAINTS, INC., et al.
• Court: Court of Special Appeals of Maryland

947 A.2d 503

404 Md. 427

Renee KENNEDY, Next Friend, et al. v. LASTING PAINTS, INC., et al.

No. 88, Sept. Term, 2007.

Court of Appeals of Maryland.

May 7, 2008.

Ronald E. Richardson (Law Offices of Peter G. Angelos, Baltimore), on brief for Petitioners.

Philip H. Curtis (Nancy G. Milburn, Arnold & Porter LLP, New York City); John B. Isbister and Toyja E. Kelley, Tydings & Rosenberg LLP, Baltimore, Counsel for Atlantic Richfield Company.

Richard W. Mark, Orrick, Herrington & Sutcliffe, LLP, New York City; Raymond G. Mullady, Jr., Orrick, Herrington & Sutcliffe, LLP, Washington, DC, Counsel for American Cyanamid Company.

Peter F. Axelrad and Ronald A. Baradel, Council, Baradel, Kosmerl & Nolan, P.A., Annapolis, Counsel for the Doe Run Resources Corp., sued as St. Joe Minerals Corporation.

Michael T. Nilan (Scott A. Smith, Halleland, Lewis, Nilan & Johnson, P.A., Minneapolis, MN), Counsel for SCM Corporation.

Andrew Gendron and Matthew T. Murnane, Venable LLP, Baltimore; Carl A. Henlein and Susan S. Wettle, Frost Brown Todd LLC, Louisville, KY, Counsel for The Glidden Company.

George M. Church, Miles & Stockbridge, P.C., Baltimore; Paul M. Pohl, Charles M. Moellenberg, Jr. and Jones Day, Pittsburgh, PA, Counsel for the Sherwin-Williams Company.

James P. Ulwick, Kramon & Graham, P.A., Baltimore; Elizabeth L. Thompson, Andre M. Pauka, Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL; Timothy S. Hardy, Denver, CO, Counsel for NL Industries, Inc.

Deborah L. Robinson, Robinson Woolson O'Connell, LLP, Baltimore, Counsel for Duron, Inc.

Charles S. Hirsch, Ballard Spahr Andrews & Ingersoll, LLP, Baltimore; Steven R. Williams, McGuire Woods, Richmond, VA, Coundel for E.I. DuPoint de Nemours & Company.

Robert H. Bouse, Anderson, Coe & King LLP, Baltimore; James R. Miller and Michael J. Sweeney, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, Counsel for PPG Industries, Inc.

Gerard P. Martin and Thy Christine Pham, Rosenberg, Martin, Greenberg, LLP, Baltimore, Counsel for Benjamin Moore & Company.

James K. Archibald, Venable LLP, Baltimore; Thomas F. Karaba, Crowley, Barrett & Karaba, Ltd., Chicago, IL, Counsel for Fuller-O'Brien Corporation.

William C. Parler, Jr., Parler & Wobber, LLP, Towson, Counsel for Valspar Corporation.

Frank F. Daily (Law Offices of Frank F. Daily, P.A., Hunt Valley), for Respondents.

Argued before BELL, C.J.^* RAKER, HARRELL, BATTAGLIA, GREENE, MURPHY, DALE R. CATHELL, (Retired, specially assigned), JJ.

HARRELL, Judge.

I.

Nearly ten years ago, seven minor plaintiffs (Reginald Smith, Jr., Shatara Smith, Shatavia Smith, Christian Brantley, Brandon Hamilton, Gerald Shorter, and Octavia Shorter) from four families (the Smiths, the Brantleys, the Hamiltons, and the Shorters) filed a complaint in the Circuit Court for Baltimore City. Based on exposure to the element, lead, these four families sought to recover damages from twenty-one defendant companies on varied products liability-related claims.¹ The fifteen-count complaint, filed 20 September 1999, alleges that the defendant companies are liable to the plaintiffs because they either 1) produced tetraethyl lead (TeL) used in motor vehicle gasoline;² 2) produced lead pigment used in manufacturing paint; 3) produced paint that contained the lead pigment;³ 4) produced lead-free paint without warning consumers on the containers how to remove safely previously applied lead paint in the surface preparation instructions; or 5), in the case of two trade organization defendants, allegedly promoted the use and unsafe removal of lead paint.

In 2005, this Court considered an earlier appeal in this matter, Smith v. Lead Indus. Ass'n, Inc., 386 Md. 12, 871 A.2d 545 (2005). The relevant procedural history from our opinion in Smith is worthy of reiteration here:

Early in the proceeding, the plaintiffs moved to sever the action into four separate cases, one for each family, or, in the alternative, to allow them to dismiss the action without prejudice in order that separate actions could be brought. The court denied that relief. Instead, it treated the motion as one for separate trials pursuant to Maryland Rule 2-503(b)[⁴] and granted that relief. In a subsequent pre-trial scheduling order, the court set four separate trial dates — one for the Smith children, one for the Brantley child, one for the Hamilton child, and one for the Shorter children — and established different discovery schedules with respect to the quadrifurcated claims. Although that scheduling order was amended from time to time, the question of severance was never revisited, and the case proceeded in accordance with the ruling denying the motion for severance but granting separate trials on a per family basis. The effect of the court's ruling was to maintain the action as a unitary one, involving all plaintiffs against all defendants....

The case then proceeded with a blizzard of motions to dismiss and for summary judgment, which ultimately were granted, in whole or in part. In August, 2001, the court denied a motion by Duron, Inc. to dismiss Count I of the Third Amended Complaint but "reassigned" Counts I, II, and III (Conspiracy, Concert of Action, and Aiding and Abetting) as part of the descriptive "Nature of the Action" appearing in preliminary paragraphs. The effect of that order was to dismiss those counts as substantive causes of action at least as to Duron.

On October 24, 2001, the court granted a motion for summary judgment in favor of Lasting Paints, Inc. "against the plaintiffs." The order granting the motion (1) is not in the record, although a copy was included in the record extract, and (2) was never docketed in this action. It appears to apply to the six plaintiffs then in the case. One child, Shatavia Smith, did not join the case as a plaintiff until a month later, and the order was never extended to include her. A motion by the plaintiffs to reconsider the granting of Lasting Paints' motion was denied.

The next day, October 25, 2001, the court granted a motion for partial summary judgment in favor of American Cyanamid Company. That company was sued in two capacities for its own conduct and as a successor-in-interest to John R. MacGregor Lead Company. The motion and the order granting it addressed only the successor-in-interest liability, which is why it was labeled a partial summary judgment. As with the grant of Lasting Paints' motion, it went against only the six plaintiffs then in the case, not Shatavia Smith, who was added a month later.

In February, 2002, the court dismissed (1) Counts IV through XV against PPG Industries, Inc. (PPG), E.I. DuPont de Nemours & Company (DuPont), and Ethyl Corporation with respect to the TeL claims made against them, (2) those same counts against Atlantic Richfield Company (Atlantic Richfield), NL Industries, Inc. (NL), SCM Corporation (SCM), Glidden Corporation (Glidden), The Sherwin-Williams Company (Sherwin-Williams), American Cyanamid Company (American Cyanamid), and Fuller-O'Brien Corporation (Fuller-O'Brien) with respect to the lead pigment claims made against them, (3) those counts generally against National Paint and Coatings Association (NPCA) one of the two trade associations, (4) Counts V, VIII, and XI through XV against Lead Industries Association, Inc. (LIA), the other trade association, and (5) Counts XI through XIV — the fraud counts — against all defendants. A week later, the court dismissed all remaining counts as to Atlantic Richfield and American Cyanamid and all counts as to ASARCO, Inc. and Doe Run Resources.

That left Counts IV through X and XV (Alternative Liability, Negligent Product Design, Negligent Failure to Warn, Supplier Negligence, Strict Liability/Defective Design, Strict Liability/Failure to Warn, Commercial Seller Liability, and Consumer Protection Act) alive against ten paint manufacturing defendants (Sherwin-Williams, SCM, Glidden, DuPont, Fuller-O'Brien, PPG, Valspar Corporation, Benjamin Moore & Company, and Duron, Inc.) and Counts IV, VI, VII, IX, and X alive against LIA.

On November 15, 2002, the court granted summary judgment on Counts IV through X and XV in favor of all defendants except Fuller-O'Brien and LIA, but only as to the Smith plaintiffs. On November 21, it granted summary judgment to Fuller-O'Brien on those counts, but, as Fuller-O'Brien's motion went to "all plaintiffs," presumably the judgment did as well. That was the last order entered by the Circuit Court. On December 10, 2002, all of the plaintiffs filed an appeal "from all appealable Orders, including but not limited to the final judgments entered on November 15, 2002."

The Court of Special Appeals, in an unreported opinion, recognized that there was no final judgment in the case in that many of the counts against many of the defendants were still unresolved with respect to the Brantley, Hamilton, and Shorter plaintiffs. It assumed, however, that all claims against all defendants had been finally resolved with respect to the Smith children, and concluded, as a result, that "to condition the Smith appeal upon the entry of final judgment in the claims brought by the other plaintiffs would be inefficient, at best, and possibly foolish." That was so, it said, because the facts for each family of plaintiffs were different and because a decision in the Smith appeal might clarify issues that remain in the other cases. On that ground, the intermediate appellate court, invoking Maryland Rule 8-602(e)(1)(C),[⁵] purported to enter final judgment on the Smith claims and proceeded to address the substantive issues presented in the appeal.

The Court of Special Appeals affirmed the trial court's grant of summary judgment with respect to the fraud, negligent misrepresentation, and intentional concealment claims on the ground that the plaintiffs failed to produce sufficient evidence of reliance on their part, which the appellate court held was necessary to establish liability. The court also agreed that the...