Owens-Corning v. Walatka

Decision Date01 September 1998
Docket NumberNo. 385,OWENS-CORNING,385
Parties, et al. v. Vernon WALATKA, et al. ,
CourtCourt of Special Appeals of Maryland

Thomas G. Hungar (Mark A. Perry, Larry L. Simms, Wesley L. Hsu, Gibson, Dunn & Crutcher LLP, Washington, DC, John Parker Sweeney, Gregory L. Lockwood and Miles & Stockbridge), Baltimore, on the brief, for appellant, Owens Corning.

Gerry H. Tostanoski (Scott Patrick Burns and Tydings & Rosenberg LLP, Baltimore, on the brief) for appellant, Owens-Illinois, Inc.

Harry Goldman, Jr. (Neal S. Wadler and Goldman, Skeen & Wadler, P.A., on the brief), Baltimore, for appellees.

Edward F. Houff, R. Thomas Radcliffe, Jr., Laura A. Cellucci and Church & Houff, P.A., Baltimore, amicus curiae.

Thomas V. Monohan, Jr. and Goodell, DeVries, Leech & Gray, LLP, Baltimore, for amicus curiae, Maryland Defense Counsel.

Argued before MOYLAN, ADKINS and THEODORE G. BLOOM (Retired, Specially Assigned), JJ.

ADKINS, Judge.

This appeal involves two of six asbestos-related cases that were consolidated for trial before the Circuit Court for Baltimore City. At issue are the claims of Marian Walatka, surviving widow and personal representative of her deceased husband, Vernon Walatka, Sr., and the claims of Myrtle Adams, surviving widow of Bill Adams, and his co-personal representatives alleging injuries and death resulting from exposure to asbestos. 1 Mr. Walatka contracted the disease of mesothelioma (a type of cancer) from his exposure to asbestos and died at the age of seventy-four.

Mr. Adams developed lung cancer after exposure to asbestos and died in 1995 at the age of seventy-three. Following a trial, 2 the jury rendered its verdict awarding damages to Mrs. Walatka for $703,500 for personal injury in the survival action, $250,000 for loss of consortium, and $1,500,000 for wrongful death. In the Adams action, the jury rendered a verdict of $50,000 for wrongful death, $50,000 for loss of consortium, and $203,500 for personal injury in the survival action.

With respect to the Walatka verdicts, appellants, 3 Owens Corning (OC) and Owens-Illinois, Inc. (OII), filed motions requesting application of the statutory cap on noneconomic damages set forth in Maryland Code (1974, 1995 Rep.Vol., 1997 Supp.), § 11-108 of the Courts & Judicial Proceedings Article (hereinafter "statutory cap" or "cap"). No party requested that the jury make any factual determinations relative to the statutory cap, and the trial court ruled on the motions. Pursuant to the cap, the trial court reduced the wrongful death award in the Walatka action to $515,000, but declined to reduce the personal injury and loss of consortium verdicts. The trial court ruled that appellants had the burden to establish that appellees' causes of action arose after the effective date of the statutory cap. It found that there was no evidence introduced regarding the date on which the plaintiff acquired mesothelioma and, in the absence of such proof, held that the statutory cap was not applicable except to appellees' actions for wrongful death, which did not arise until after the effective date of the statutory cap.

After the trial court issued its decision regarding application of the statutory cap, OC sought to satisfy the burden of proof imposed upon it by the trial court by taking the deposition of Dr. Andrew Churg. OC submitted Dr. Churg's deposition transcript and a proffer of his expected testimony that "Mr. Walatka's mesothelioma tumor developed no earlier than April, 1990." At a hearing on November 4, 1997, the trial court expressed displeasure with the form of this proffer. After OC filed its notice of appeal on November 4, it filed a further proffer that Dr. Churg would testify that "at an outer limit, a mesothelioma tumor is present for five years before diagnosis." On November 17, 1997, the trial court ordered that Dr. Churg's deposition could not be used as a proffer.


The parties raise and comprehensively brief a number of issues regarding application of Maryland's statutory cap in latent disease cases; in particular, the statutory language providing that the statutory cap shall apply "[i]n any action ... in which the cause of action arises on or after July 1, 1986...." CJ § 11-108(b). Some of these arguments revolve around the methodology for determining the date on which "a cause of action arises," e.g., whether the date should be determined by when the injured person first inhaled asbestos, when the disease came into existence according to the opinion of a qualified expert, or when the injured person first experienced clinical symptoms of the disease. These same arguments were addressed in a very recent published decision of this Court, and for that reason, will not be addressed in this opinion. See Owens Corning v. Bauman, 125 Md.App. 454, 726 A.2d 745 (1999) (holding that in a suit by a plaintiff who has suffered the disease of mesothelioma, the cause of action arose for purposes of application of the statutory cap when the disease came into existence, and the disease came into existence when, based on expert testimony, the carcinogen caused cellular changes which led to an irreversible, fatal, or disabling disease rather than the point in time when the plaintiff inhaled the asbestos, or when the plaintiff was diagnosed or manifested symptoms of such disease).

The issues relating to the statutory cap that were not decided in Bauman and must be decided here are: 1) whether the burden of showing if the statutory cap applies rests with the plaintiff or the defendant; 2) what is the proper application of that burden under the circumstances of this case; and 3) whether the statutory cap violates the separation of powers clause in the Maryland Declaration of Rights.

The only other issue raised in this appeal is OC's contention that the plaintiffs in the Adams case failed to prove that an Owens Corning product was a substantial contributing cause of the asbestos-related disease suffered by Adams and his eventual death. In this regard, contrary to the contention of the Adams appellees, we hold that OC's appeal was timely filed.


Three medical witnesses testified in the Walatka case on behalf of appellees--Dr. Samuel Hammar, a pathologist who reviewed pathology materials from Mr. Walatka, Dr. Sheldon Gottlieb, a treating physician who specializes in internal medicine, cardiovascular disease, and geriatric medicine, and Dr. Arnold Brody, a lung pathologist who did not review any of Mr. Walatka's pathology materials and did not testify specifically about Mr. Walatka. Appellants called no medical witnesses.

Dr. Samuel Hammar

Dr. Hammar received tissue obtained from Mr. Walatka's 1995 biopsy and performed tests on that tissue. In his opinion, the results confirmed a diagnosis of mesothelioma. He also opined that Mr. Walatka's mesothelioma was attributable to his exposure to asbestos. When Dr. Hammar was asked on cross-examination whether he could say within a reasonable degree of medical certainty how long before June of 1995 Mr. Walatka had mesothelioma, he replied:

There has only actually been one study that had looked at how fast mesotheliomas grow and how--what their doubling time is, and that study might not even be reliable,.... [Mesothelioma] is the type of tumor that might not be known for a long time until we get some better methods, because it doesn't grow as a spherical mass, it grows as a rind, and it is very hard to see the change in size over time which is necessary to calculate how fast a tumor grows.

Dr. Sheldon Gottlieb

Dr. Gottlieb originally saw Mr. Walatka in 1989, in connection with cardiac problems. After Mr. Walatka underwent bypass surgery, Dr. Gottlieb followed his condition, seeing him every three to six months. Dr. Gottlieb testified that, in June 1995, Mr. Walatka "presented for a routine visit and there was some fluid on physical examination." This fluid was removed, and when Walatka returned for a visit later in June, Gottlieb found that "he was more short of breath. He was having trouble getting around because of shortness of breath." He also lost weight since his earlier June visit. Mr. Walatka consulted a lung specialist, and Dr. Gottlieb learned "that he had a kind of cancer called mesothelioma." Gottlieb continued to see Mr. Walatka during the course of the mesothelioma.

Dr. Arnold Brody

Dr. Brody, who is a pathologist (not a medical doctor) testified generally about mesothelioma and its development. He explained that long before a patient has mesothelioma, there is cell division in the person's lungs. The cell division occurs as part of the body's normal process of replacing lung cells. Without any injury to the lung, the cells should divide at the rate of one out of one hundred cells, which he characterizes as a "very low rate of cell division." When there is lung injury, which can be caused by asbestos or other factors, there will be an increased rate of cell division. Cancer is only formed, however, according to Brody, when the genetic structure of the cells change, and the cells lose control of their growth. With cancer, Brody said, "you injure the genes that control cell growth." Asbestos exposure, he said, can cause gene mutation. He further explained that, "I don't know the Sometimes, where the lungs have been exposed to asbestos, as the cells divide and half of the chromosomes go to the new cell, "some of the chromosomal material has attached to the asbestos fibers and is not moving to its normal position." This abnormal chromosomal separation is known as aneuploidy. The "body defense mechanisms are very good at removing cells that are aneuploid, ... but the person who gets a cancer has not removed all of those cells." "Sometimes it takes 40 years after an exposure for an individual to come to the clinic with a cancer. That is because it has...

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