Owens-Corning Fiberglas Corp. v. Garrett

• Citation: 343 Md. 500,682 A.2d 1143
• Decision Date: 01 September 1995
• Docket Number: No. 117,OWENS-CORNING,117
• Parties: FIBERGLAS CORPORATION, et al. v. Ralph GARRETT, et al. ,
• Court: Court of Appeals of Maryland

Page 500

343 Md. 500

682 A.2d 1143

OWENS-CORNING FIBERGLAS CORPORATION, et al. v. Ralph GARRETT, et al.

No. 117, Sept. Term, 1995.

Court of Appeals of Maryland.

Aug. 28, 1996.

Reconsideration Denied Oct. 4, 1996.

Gregory L. Lockwood (John P. Sweeney, Douglas B. Pfeiffer, Miles & Stockbridge, on brief); Lawrence L. Hooper (Scott Patrick Burns Tyding & Rosenberg L.L.P., on brief); and Warren N. Weaver (Louis G. Close, Jr., Padraic McSherry Morton, Whiteford, Taylor & Preston, L.L.P., on brief), Baltimore, for appellants.

Peter T. Nocholl, Baltimore (Ann Ritter, Ness, Motley, Loadholt, Richardson & Poole, Charleston, SC; Patrick S. Guilfoyle, Washington, DC, on brief); and Shepard A. Hoffman (Brian C. Parker, Kenneth R. Rhoad, Gebhardt & Smith, on brief) Baltimore, for appellees.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

KARWACKI, Judge.

The plaintiffs/appellees brought suit in the Circuit Court for Baltimore City against numerous manufacturers and distributors of asbestos products, alleging negligence and strict liability for failure to warn of the dangers of the asbestos products. Two of the plaintiffs were men suffering from asbestos-related mesothelioma, and another was the surviving wife of a man who had died of mesothelioma. Their cases were consolidated for trial. ¹ Today we address the numerous issues raised in appeals from judgments entered following the consolidated trial, in which three of the direct defendants were found liable by the jury for varying amounts of compensatory damages and punitive damages were assessed against one of those defendants. We affirm all the liability verdicts and the compensatory damages awarded by the jury, and reverse the punitive damages award for lack of sufficient clear and convincing evidence of actual malice.

I.

A. Overview

These suits were brought to recover damages resulting from asbestos exposure experienced by Harvey Scruggs, Ralph Garrett, and William Hohman. All three men worked with or near asbestos products for several years in a variety of jobs, described in more detail in the following paragraphs and later in the opinion when relevant to our analysis. Mr. Scruggs and Mr. Garrett, still alive when suit was instituted, have since died of malignant pleural mesothelioma, a rare form of cancer believed by medical experts to be caused almost exclusively by exposure to and inhalation of asbestos dust. ² Lenora Scruggs as personal representative of Mr. Scruggs' estate, ³ and Louis Bittner, as personal representative of Mr. Garrett's estate, were substituted as plaintiffs at trial and are appellees in this case. Mr. Hohman died in 1986 of mesothelioma and his wife Jeanette instituted suit both as personal representative of his estate and on her own behalf; she too died during trial and the personal representative of her estate, her daughter, Victoria Croghan, was substituted as a plaintiff in her mother's wrongful death action and as the successor personal representative of the estate of William Hohman. She is the third appellee in this case. For convenience, however, we will refer to the three men who died of mesothelioma, rather than their personal representatives, when discussing the issues presented in this appeal. ⁴

The three defendants/appellants before us are Owens-Corning Fiberglas Corporation (hereinafter "OCF"), Porter Hayden Company (hereinafter "PH") and Owens-Illinois, Inc. (hereinafter "OI"). PH was an insulation distributor and installer in industrial facilities around Baltimore. OCF and OI manufactured and distributed products containing asbestos, notably pipe and boiler insulation. From the late 1940's to 1953, OI manufactured and distributed Kaylo, an insulation material containing asbestos. From 1953 to 1958, although OI was still the manufacturer of Kaylo, OCF distributed the product; in 1958, OCF bought the Kaylo manufacturing facility from OI and continued to manufacture and distribute Kaylo until 1972, when asbestos-free Kaylo was introduced. The other direct and cross-claim defendants in this consolidated case are not parties to this appeal, although liability of cross-claim defendants is an issue and will be addressed in part III, section B, infra.

B. Harvey Scruggs

From 1968 to 1972, Mr. Scruggs was an equipment mechanic apprentice and journeyman at the Curtis Bay Coast Guard Shipyard in Baltimore as a civilian employee of the Navy. In 1970, for a two-month period of time, Mr. Scruggs was also trained to be and worked as a pipecoverer. During those four years, according to his own testimony, he worked mostly in the boiler and engine rooms of Coast Guard cutters, exposed daily to asbestos products:

"Q. When you were working in the engine and boiler rooms, Mr. Scruggs, did the dust from the asbestos products get in your hair?

A. Yes, sir.

Q. Did it get in your nose?

A. Yes.

Q. Did it get in your mouth?

A. Some of it did.

Q. What did your clothes look like at the end of any particular day?

A. Dusty. My face was dusty, my glasses were dusty, my hair was dusty."

Mr. Scruggs testified at trial that the asbestos dust came in part from the daily sawing and cutting of OCF Kaylo, an insulation available in block and pipecovering form, in the boiler rooms in which he worked. Kaylo was described thus in a 1956 marketing brochure produced by OCF "Kaylo TM Block Insulation, a white, rigid hydrous calcium silicate heat insulation developed and manufactured by Owens-Illinois Glass Company and distributed nationally by Owens-Corning Fiberglas Corporation, effectively insulates indoor and outdoor heated equipment up to 1200 ? F. Kaylo Block Insulation offers excellent heat insulation, high strength and moisture resistance to a variety of high temperature installations. A chemically-reacted material, it contains asbestos fibers for reinforcement."

Kaylo contains approximately 15% asbestos. Jerry Helser, quality control supervisor at the Kaylo plant in Berlin, New Jersey in the 1960's, testified that asbestos fibers were critical to the production of Kaylo. Asbestos served as a reinforcement, or a bonding agent, to hold together in solid block form the variety of minerals which, when combined and heated under pressure in an autoclaving process, reacted to form the hydrous calcium silicate. The dust created by cutting or sawing Kaylo contained asbestos fibers which could be inhaled.

Mr. Scruggs and a co-worker, Donald Kaiser, also testified to seeing PH trucks at the shipyard delivering asbestos materials, including Kaylo and the products of a number of the cross-claim defendants.

After 1972 the areas of the ships where asbestos pipecovering was used were off-limits to all workers except those who actually installed the pipecovering. Mr. Scruggs continued working for the Navy in a series of office jobs until December of 1992, three months after he had been diagnosed with mesothelioma. He died during the trial, after testifying in a videotaped deposition and in the courtroom.

C. Ralph Garrett

In 1942, Ralph Garrett worked full-time for approximately a year as a pipecoverer for Maryland Shipbuilding and Drydock, using a variety of asbestos pipecovering, block, and cement insulation products on the ships in the yard. In his videotaped deposition shown to the jury, Mr. Garrett described the dust created in using the block insulation: "Q. Mr. Garrett, do you recall what was--what type of work was done with this asbestos pipecovering that you have referred to? How was it used?

A. Well, it was put on pipes and joints of any such kind, which would be put mud around that. And if it were a big joint, they would put pieces of block on it and put the mud around it to hold, make it a form. And you would have to saw this stuff, and it would make you look like a snowman. That would keep you white all day long, from the time you got there until you left.

Q. Mr. Garrett, do I understand that you, yourself, sawed this insulation?

A. Oh, yes."

(Emphasis added.) During that time, according to his testimony and that of a co-worker William Moody, he used Kaylo pipecovering and block insulation, as well as other asbestos products.

Mr. Garrett then went to work as an electrician, and testified that around 1950, for approximately one year, he worked on a job at Crownsville Hospital near co-workers who were covering pipes using asbestos products and creating asbestos dust which got on his clothes. He identified during his deposition the products used as "some of the ones that we have said before." This statement apparently referred to his testimony about materials at Maryland Shipbuilding and Drydock; Garrett did specifically but tentatively mention Kaylo.

In 1955 he went to work for Western Electric as an electrician, where he worked for the next thirty years. During his tenure at Western Electric, Mr. Garrett regularly used and cut gasket material containing asbestos. His work with the gasket material created a small amount of asbestos dust, but Mr. Garrett also worked overtime weekends at least twice per month as a pipecoverer for Western Electric; it was on these shifts that he was exposed to asbestos dust from the pipecovering and the "mud" (the cement containing asbestos) used to seal the joints of the pipes. He again identified the brand names of the products they used for pipecovering at Western Electric as the same products he had used at Maryland Shipbuilding and Drydock in 1942. His co-workers who testified at trial also identified Kaylo as one of the products used.

Mr. Garrett tentatively identified PH as one of the insulating contractors he worked with and around. One witness, John Lantz, also testified that PH was an outside contractor performing insulation work at Western Electric during 1957-59, installing asbestos pipecovering among other tasks.

Mr. Garrett developed mesothelioma in 1993, and died before trial.

D. William Hohman

William Hohman worked for Continental Oil Company (hereina...