Owens-Illinois, Inc. v. Hunter

• Citation: 875 A.2d 157,162 Md. App. 385
• Decision Date: 01 June 2005
• Docket Number: No. 2215,2215
• Parties: OWENS-ILLINOIS, INC. v. Barbara HUNTER, Personal Representative of the Estate of Harry Hunter et al.
• Court: Court of Special Appeals of Maryland

875 A.2d 157

162 Md. App. 385

OWENS-ILLINOIS, INC. v. Barbara HUNTER, Personal Representative of the Estate of Harry Hunter et al.

No. 2215, September Term, 2003.

Court of Special Appeals of Maryland.

June 1, 2005.

Robert Riley (Gerry H. Tostanoski, Scott Patrick Burns, Tydings & Rosenberg, on the brief), Baltimore, for appellant.

Edward Lily (Gary J. Ignatowski, Law Offices of Peter G. Angelos, on the brief), Baltimore, for appellee.

Panel: DAVIS, SALMON, JOHN J. BISHOP (Retired, specially assigned), JJ.

DAVIS, J.

In the Circuit Court for Baltimore City, Harry Hunter and his wife Barbara Hunter sued Owens-Illinois, Inc., alleging that the company was responsible for Mr. Hunter's development of mesothelioma after he was exposed to asbestos almost fifty years earlier. Mr. Hunter died two months after his complaint was filed.¹ After the jury awarded the plaintiffs a multi-million dollar verdict, the trial court granted Owens-Illinois's motions for remittitur and to apply Maryland's statutory cap on noneconomic damages to the wrongful death damages award.

Owens-Illinois noted this appeal and presents three questions for our review, which we have rephrased:

I. Did the circuit court err in concluding that the Hunters produced sufficient evidence to prove Mr. Hunter's exposure to Owens-Illinois's asbestos product?

II. Did the circuit court err in concluding that, because the Hunters' loss of consortium claim arose before the enactment of Maryland's noneconomic damages cap, the cap did not apply to their loss of consortium claim?

III. Did the circuit court err in concluding that the Hunters' loss of consortium claim was not barred as a matter of law because Mr. Hunter had been exposed to asbestos before the Hunters married?

Ms. Hunter noted a cross-appeal, and presents the following two questions, which we also rephrase:

IV. Did the circuit court err in granting Owens-Illinois's motion for remittitur of the loss of consortium damages?

V. Did the circuit court err in applying the noneconomic damages cap to the wrongful death count?

We conclude that the circuit court did not err in any of these respects. Therefore, we shall affirm the judgment.

FACTUAL BACKGROUND

This case began almost fifty years ago at the United States Coast Guard's shipyard (the Yard) located at Curtis Bay, in south Baltimore, Maryland. From July 23 to September 10, 1956, between his junior and senior years of college, Mr. Hunter worked as an electrician's helper at the Yard for a total of thirty-three days. Before his death, Mr. Hunter testified by videotape that military ships were refurbished at the Yard when he worked there. The plaintiffs alleged that, while working at the Yard, Mr. Hunter was exposed to asbestos dust from Kaylo, a pipe-covering product manufactured by Owens-Illinois. Shortly after his work at the Yard, the Hunters married in 1960. His mesothelioma was not diagnosed until 2001, the year he died.

At trial, only one witness testified that Mr. Hunter was exposed to asbestos at the Yard. William Edwards worked at the Yard as one of the electricians to whom helpers were assigned. Based on a photograph provided by the Hunters' counsel, Edwards testified that he recognized Mr. Hunter by face, but not by name. Edwards also testified that, although Mr. Hunter never worked as his helper, he remembered seeing Mr. Hunter working at the Yard in the 1950s.

Edwards was 79 years old when he testified. He had trouble remembering the exact name of Owens-Illinois's product, but he testified that he saw the name on boxes of the product. He called the pipe-covering "Kayo," but its proper name was Kaylo. Regarding Mr. Hunter's exposure to asbestos dust from Kaylo, Edwards testified:

[Plaintiffs' counsel]: [W]hen this pipe covering was cut, what, if anything, did you see in the air?

[Edwards]: Oh, a lot of — a lot of stuff flying around.

[Plaintiffs' counsel]: And how long a period of time was the gentleman in the — do you recall the gentleman in the picture being at the Coast Guard Yard in the mid '50s?

[Edwards]: Well, I don't think he was there long, something like three or four months at the most.

[Plaintiffs' counsel]: Okay. And how often would you see him in the dust from the Kayo you have described?

[Defense counsel]: Objection.

THE COURT: Overruled.

[Edwards]: I would say it was quite often.

[Plaintiffs' counsel]: What type of ventilation was there in the ship, sir?

[Edwards]: Well, we had the ventilation off on the ship.

[Plaintiffs' counsel]: The ventilation was off?

[Edwards]: Yes.

[Plaintiffs' counsel]: Okay.

[Edwards]: Sometimes it would be on, too. And whenever it was on, it [blew] it all over.

[Plaintiffs' counsel]: What would blow all over?

[Edwards]: [The] asbestos.

[Plaintiffs' counsel]: Okay, and from your observation, where would the asbestos dust go from the Kayo product you described?

[Edwards]: Right on the deck, lie right on the deck, right on the people.

[Plaintiffs' counsel]: And how often did you see the . . . gentleman in the picture around the dust from the Kayo?

[Defense counsel]: Objection. He already answered.

[Edwards]: Whenever —

THE COURT: Just a minute. Sustained.

[Plaintiffs' counsel]: I apologize if I already asked that.

Additionally, Ms. Hunter, who was dating Mr. Hunter at the time, testified that she remembered Mr. Hunter leaving work at the Yard with his clothes covered in "a whitish gray dust." She added that the dust also accumulated in Mr. Hunter's car.

The jury found Owens-Illinois liable for Mr. Hunter's asbestos exposure. In Mr. Hunter's survival action, his estate was awarded $10,000 in noneconomic damages for his personal injury, as well as compensatory damages of $5,000 for household services, and medical and funeral expenses of $57,503.43. The Hunters were awarded $2 million in noneconomic damages for their loss of consortium claim. Ms. Hunter was awarded $4.3 million in noneconomic damages, and a total of $81,529 in compensatory damages, for Mr. Hunter's wrongful death.

In addition to Owens-Illinois's motion for judgment notwithstanding the verdict, which was denied, the company sought remittitur of the $2 million loss of consortium damages. The trial judge found a gross disparity between the damages awarded for Mr. Hunter's personal injury in the survival action and the damages awarded to the couple for loss of consortium. On that basis, the judge granted the motion for remittitur, requiring the plaintiffs to agree to remit $1 million of the loss of consortium damages, or to face a new trial. The plaintiffs agreed to the remittitur. Thereafter, Owens-Illinois noted this appeal, and Ms. Hunter noted her crossappeal.

LEGAL ANALYSIS

We first review the circuit court's denial of Owens-Illinois's motion for judgment notwithstanding the verdict, filed under Maryland Rule 2-532. In reviewing the court's decision, "we must view the evidence and the reasonable inferences therefrom in the light most favorable to" the Hunters, and "[i]f there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then we must affirm the jury's verdict on that issue." Owens-Corning v. Walatka, 125 Md.App. 313, 342, 725 A.2d 579 (1999), overruled on other grounds by John Crane, Inc. v. Scribner, 369 Md. 369, 383-90, 800 A.2d 727 (2002)

.

I

Owens-Illinois first argues that the Hunters failed to satisfy their burden, under Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992), of proving that Owens-Illinois substantially contributed to Mr. Hunter's death by showing that he had been subjected to a sufficient level of asbestos exposure. Under the analytical framework described in Balbos, Mr. Hunter is considered a "bystander," because he was an electrician working in the vicinity of asbestos workers, but he was not directly working with asbestos. Id. at 210, 604 A.2d 445. Balbos set the bystander standard of proof as follows:

Whether the exposure of any given bystander to any particular supplier's product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant's product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product. In addition, trial courts must consider the evidence presented as to medical causation of the plaintiff's particular disease.

Id. at 210-11, 604 A.2d 445 (citations and quotation marks omitted). This has become known as the "frequent, proximate, and regular" standard, or simply the Balbos standard. See also Georgia-Pacific Corp. v. Pransky, 369 Md. 360, 800 A.2d 722 (2002)

(applying Balbos to an asbestos bystander); Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 526-30, 682 A.2d 1143 (1996) (same).

Owens-Illinois's argument, more specifically stated, is that while Edwards testified that Mr. Hunter was exposed "quite often" to asbestos dust, when Edwards' testimony is considered as a whole, it is so fraught with impossibilities and irreconcilable inconsistencies that, under the Court of Appeals' holdings in York Motor Express Co. v. State ex rel. Hawk, 195 Md. 525, 534, 74 A.2d 12 (1950), and Kucharczyk v. State, 235 Md. 334, 201 A.2d 683 (1964), his testimony was devoid of any probative value. Owens-Illinois asserts that because the Hunters'"entire case depends on [Edwards's] testimony," once that testimony is discredited, their case fails.

The operative principle in York Motor Express is...