MCIC, Inc. v. Zenobia, No. 1580

CourtCourt of Special Appeals of Maryland
Writing for the CourtJAMES S. GETTY
Citation86 Md.App. 456,587 A.2d 531
Parties, Prod.Liab.Rep. (CCH) P 12,886 MCIC, INC., et al. v. William ZENOBIA, Sr., et al. Sept. Term 1989.
Docket NumberNo. 1580
Decision Date27 March 1991

Page 456

86 Md.App. 456
587 A.2d 531, Prod.Liab.Rep. (CCH) P 12,886
MCIC, INC., et al.
v.
William ZENOBIA, Sr., et al.
No. 1580 Sept. Term 1989.
Court of Special Appeals of Maryland.
March 27, 1991.

[587 A.2d 533]

Page 461

Patrick C. Smith (Laura B. Black, Gardner M. Duvall and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellant, Porter Hayden Co.

Lee Baylin (John G. Sakellaris, Gregory G. Broikos and Bernstein, Sakellaris & Ward, on the brief), Baltimore, for appellant, Anchor Packing Co.

John J. Nagle, III, Ann M. Potthast and Power & Mosner, P.A., on the brief, Towson, for appellant, MCIC, Inc.

[587 A.2d 534] H. Barnes Mowell and Mann & Whelley, on the brief, Towson, for appellant, Eagle-Picher.

Clifford W. Cuniff, Baltimore (James J. Pettit, Michael A. Galpern and Greitzer and Locks, on the brief), Louis Dickerson, Philadelphia, Pa., for appellee/cross-appellant.

Argued before MOYLAN, GARRITY and JAMES S. GETTY (Retired, Specially Assigned), JJ.

JAMES S. GETTY, Judge.

This products liability case consolidated for trial the claims of Louis L. Dickerson and William L. Zenobia, who allege that they contracted asbestosis as a result of their exposure to products containing asbestos which were either manufactured or supplied by the named defendants herein. At trial in the Circuit Court for Baltimore City (Hubbard, J.), the case proceeded before a jury on the theory of strict liability.

The defendants in Dickerson's case are Owens-Illinois, Inc., Eagle-Picher, and Celotex Corp., all manufacturers, and MCIC, Inc., and Porter Hayden Company, both suppliers of asbestos products. The defendants in Zenobia's case include Owens-Illinois, MCIC, Porter Hayden and an additional supplier, Anchor Packing Company.

Page 462

Other named defendants settled with both plaintiffs at different stages of the trial and became the target of cross-claims for contribution by the above-named original defendants. Included in the settling category are Raymark Industries, Inc., which settled with both Dickerson and Zenobia before trial, and the following defendants, who settled during trial: Armstrong World Industries, GAF Corporation, AC & S, Inc., and Owens-Corning Fiberglass settled with Dickerson; Owens Corning was stricken from the Zenobia case and the above-named companies remaining also settled with Zenobia.

Trial began on November 21, 1988, and culminated in a jury verdict on January 19, 1989, awarding Dickerson compensatory damages against all five defendants in the amount of $1,300,000.00 and further allotted Zenobia the sum of $1,200,000.00, assessed against the four defendants in his case.

The jury also decided that punitive damages were warranted against Owens-Illinois, Porter Hayden and Celotex. At a subsequent hearing, punitive damages were awarded Dickerson against Owens-Illinois in the amount of $235,000.00; against Porter Hayden in the amount of $2,500.00; and against Celotex in the amount of $372,000.00. In Zenobia's case he was accorded the identical amounts charged to Owens-Illinois and to Porter Hayden.

All post trial motions were denied by the trial court, final judgments were entered on April 12, 1989. Thereafter, the trial court granted all defendants' cross-claims for contribution against the five settling defendants in the Dickerson case and entered the same order against the four defendants who settled with Zenobia. The compensatory judgments, therefore, were reduced by half by operation of the settlement releases and pursuant to the Uniform Contribution Among Tort-Feasors Act, Md.Ann.Code art. 50, § 16-20. Additionally, the trial court granted Anchor's cross-claim for indemnification against Raymark and dismissed Anchor from the case based upon Zenobia's release of Raymark.

Page 463

The compensatory and punitive damages judgments have been appealed by Owens-Illinois, MCIC, Porter Hayden, Eagle-Picher and Anchor. Dickerson and Zenobia have appealed from the cross-claim judgments entered by the trial court.

At the time of the trial, Dickerson was 57 years old and was employed by the Baltimore County Board of Education as a school custodian. Zenobia was retired at age 65 after working 32 years for the Carling Brewery Company in Baltimore.

Dickerson alleged that he was exposed to asbestos while working as a laborer at the Bethlehem Steel Sparrows Point Shipyard in Baltimore from 1953-1955 and from 1958-1963. He also claimed that he was exposed to asbestos from 1955 to 1958 when he worked at the hot strip mill at Sparrows Point. He had no exposure after 1963.

[587 A.2d 535] Zenobia alleged that he was exposed to asbestos during his employment as a painter for four months in 1948 at the Bethlehem Steel Sparrows Point Shipyard; while working for 18 months at the Maryland Shipbuilding and Drydock Company shipyard between 1951 and 1952; and while employed as a clean-up man at the Carling Brewery Company for three months in 1968. He had no exposure after 1968. Both men alleged that they contracted asbestosis as a result of their exposure to asbestos fibers during the periods listed herein. Neither man claimed lost wages or prior medical expenses in connection with their physical condition. Additional facts will be discussed as they relate to each case.

The five appellants, MCIC, Owens-Illinois, Porter Hayden, Eagle-Picher, and Anchor Packing, raise the following issues:

1. Punitive damages were erroneously assessed against Owens-Illinois and Porter Hayden.

2. Deposition testimony was erroneously introduced against all five defendants under Md.Rule 2-419.

Page 464

3. Porter Hayden's insulating and contracting activities were not a substantial factor in causing Zenobia's injuries.

4. The trial court erred in instructing the jury that Owens-Illinois had a continuing duty to warn after the time the company no longer manufactured, distributed, or sold asbestos-containing or other insulation products.

5. Owens-Illinois's contracting activities were not a substantial factor in Zenobia's injuries.

6. MCIC's contracting activities were not a substantial factor in any injury sustained by either Dickerson or Zenobia.

7. Anchor Packing was entitled to a judgment when Zenobia failed to prove that Anchor products contained asbestos or that he was regularly exposed to respirable asbestos dust from an Anchor product.

8. The trial court erred in refusing a new trial or remittitur on a $1,200,000.00 verdict when the plaintiff, Zenobia, gave a Swigert release to one defendant for $860.00 and offered to settle with all defendants for a total of $165,000.00.

9. The trial court erred by admitting state-of-the-art testimony as it existed after 1953, the last possible exposure of Zenobia to an Anchor product.

10. The trial court erred in instructing the jury that a manufacturer's conduct is not relevant in a "failure to warn" case based upon strict liability.

11. The trial court erred when it used the term "knew or could have known" rather than "knew or should have known" in describing a seller's duty to warn involving a dangerous product.

12. The trial court erred in instructing the jury that damages could be awarded not only if pleural plaques harmed the plaintiff, Dickerson, but if they were in themselves harmful.

Page 465

The issues raised by the cross-appellants, Dickerson and Zenobia, are the following:

13. Whether it was reversible error for the trial court to order contribution by the settling defendants.

14. Whether Raymark, an absent debtor in bankruptcy, may be adjudicated a tortfeasor, indemnitor or contributor without leave of the bankruptcy court.

15. Whether the trial court erred in granting the cross-claim by Anchor for indemnity against Raymark and striking the verdict of the jury against Anchor.

Preliminarily, we note that after the appeals in this case had been filed Celotex and Eagle-Picher filed for protection under Chapter 11 of the United States Bankruptcy Code. We shall, therefore, stay the proceedings as to each of those defendants, but allow the proceedings to proceed as to the remaining defendants as well as the cross-claims raised, excepting those involving[587 A.2d 536] the two bankrupt defendants. Title 11 U.S.C. § 362(a) provides that the filing of a petition under Chapter 11 of the Bankruptcy Act operates as a stay of judicial proceedings pending against the debtor when the petition was filed. See also Collier v. Eagle-Picher, et al., 86 Md.App. 38, 585 A.2d 256 (1991) (opinion by Wilner, C.J.).

Issue No. 1

Punitive Damages Against

Owens-Illinois and Porter Hayden

Both Dickerson and Zenobia received punitive damage awards of $235,000.00 against Owens-Illinois and $2,500.00 against Porter Hayden.

In our review of the trial court's denial of the motions for judgment and judgment n.o.v., we must resolve all conflicts in the evidence and make all reasonable inferences in favor of the party opposing the motion. Wesko v. G.E.M., Inc., 272 Md. 192, 200, 321 A.2d 529 (1974).

This Court, in Eagle-Picher v. Balbos, 84 Md.App. 10, 578 A.2d 228 (1990) (Alpert, J.), set forth the necessary showing for recovery of punitive damages in Maryland's

Page 466

asbestos personal injury cases. We indicated that we would require direct evidence that a particular defendant had substantial knowledge that the product(s) at issue was, or was likely to become, dangerous, and a gross indifference to the danger. Id. at 73, 578 A.2d 228. Elucidating, we said that we would require a showing that the defendant conducted itself "in an extraordinary manner characterized by a wanton and reckless disregard for the rights of others." Id., citing Exxon Corp. v. Yarema, 69 Md.App. 124, 516 A.2d 990 (1986); R. Gilbert, P. Gilbert, and R. Gilbert, Maryland Tort Law Handbook § 25.3.1 (1986).

In Balbos, supra, this Court reversed the judgments for punitive damages because we did not find the extraordinary conduct which warrants an award of punitive damages in Maryland. We...

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11 practice notes
  • Owens-Illinois, Inc. v. Zenobia, OWENS-ILLINOI
    • United States
    • Court of Appeals of Maryland
    • September 1, 1991
    ...against Owens-Illinois was affirmed, and the award of punitive damages against Porter Hayden was reversed. See MCIC, Inc. v. Zenobia, 86 Md. App. 456, 587 A.2d 531 Thereafter petitions and cross-petitions for a writ of certiorari were filed in this Court. The only manufacturer which filed a......
  • Harrod v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2010
    ...unavailability argument was not preserved for appellate review, and, as such, we decline to address it. See MCIC, Inc. v. Zenobia, 86 Md.App. 456, 471, 587 A.2d 531 (1991) ("Defendants did not raise the issue of plaintiffs' failure to establish the unavailability of the witnesses at trial. ......
  • ACandS, Inc. v. Abate, No. 1857
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...on other grounds, 326 Md. 107, 604 A.2d 47, cert. denied, 506 U.S. 871, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992); MCIC, Inc. v. Zenobia, 86 Md.App. 456, 481-84, 587 A.2d 531 (1991) (trial court properly instructed jury that it could not award damages for pleural plaques unless it found that pl......
  • Ragin v. Porter Hayden, No. 706
    • United States
    • Court of Special Appeals of Maryland
    • June 29, 2000
    ...stops manufacturing or selling asbestos. It does not stop when the plaintiff is no longer exposed to asbestos.'" MCIC, Inc. v. Zenobia, 86 Md.App. 456, 475, 587 A.2d 531 (1991) ("Zenobia I"), rev'd on other grounds, 325 Md. 420, 601 A.2d 633, reconsideration denied, 325 Md. 665, 602 A.2d 11......
  • Request a trial to view additional results
11 cases
  • Owens-Illinois, Inc. v. Zenobia, OWENS-ILLINOI
    • United States
    • Court of Appeals of Maryland
    • September 1, 1991
    ...against Owens-Illinois was affirmed, and the award of punitive damages against Porter Hayden was reversed. See MCIC, Inc. v. Zenobia, 86 Md. App. 456, 587 A.2d 531 Thereafter petitions and cross-petitions for a writ of certiorari were filed in this Court. The only manufacturer which filed a......
  • Harrod v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2010
    ...unavailability argument was not preserved for appellate review, and, as such, we decline to address it. See MCIC, Inc. v. Zenobia, 86 Md.App. 456, 471, 587 A.2d 531 (1991) ("Defendants did not raise the issue of plaintiffs' failure to establish the unavailability of the witnesses at trial. ......
  • ACandS, Inc. v. Abate, No. 1857
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...on other grounds, 326 Md. 107, 604 A.2d 47, cert. denied, 506 U.S. 871, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992); MCIC, Inc. v. Zenobia, 86 Md.App. 456, 481-84, 587 A.2d 531 (1991) (trial court properly instructed jury that it could not award damages for pleural plaques unless it found that pl......
  • Ragin v. Porter Hayden, No. 706
    • United States
    • Court of Special Appeals of Maryland
    • June 29, 2000
    ...stops manufacturing or selling asbestos. It does not stop when the plaintiff is no longer exposed to asbestos.'" MCIC, Inc. v. Zenobia, 86 Md.App. 456, 475, 587 A.2d 531 (1991) ("Zenobia I"), rev'd on other grounds, 325 Md. 420, 601 A.2d 633, reconsideration denied, 325 Md. 665, 602 A.2d 11......
  • Request a trial to view additional results

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