Owens-Illinois v. Armstrong
| Decision Date | 01 September 1990 |
| Docket Number | No. 933,OWENS-ILLINOIS,EAGLE-PICHER,933 |
| Citation | 591 A.2d 544,87 Md.App. 699 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,937 , et al. v. Othello ARMSTRONG, et al. Frederick STORMER, et al. v.INDUSTRIES, INC. , |
| Court | Court of Special Appeals of Maryland |
Patrick C. Smith (F. Leigh Swann and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellant, Owens-Illinois.
Shepard A. Hoffman (Harry Goldman, Jr., William A. Musto and Goldman & Skeen, P.A., on the brief), Baltimore, for appellants, Stormer and Celozzi.
Shepard A. Hoffman (William Musto, Harry Goldman, Jr. and Goldman & Skeen, P.A., on the brief), Baltimore, for appellees, Armstrong and Wood.
Kristine A. Crosswhite, Miles & Stockbridge, on the brief, Baltimore, for appellee, Owens Corning Fiberglas.
Diane V. D'Aiutolo, Frederick C. Leiner and Tydings & Rosenberg, on the brief, Baltimore, for appellee, Fibreboard Corp.
Edward F. Houff and Church & Houff, on the brief, Baltimore, for appellee, GAF Corp. and Armstrong World Industries, Inc. Patrick C. Smith, F. Leigh Swann and Whiteford, Taylor & Preston, on the brief, Baltimore, for appellees, Owens-Illinois, Inc., Keene Corp. & ACandS, Inc.
Argued before BISHOP, ALPERT and DAVIS, JJ.
This appeal involves the consolidated cases of three shipyard workers, Othello Armstrong, Forrest Wood, and Dominic Celozzi, and one warehouseman, Frederick Stormer, who sued companies that manufactured, installed or supplied asbestos-containing insulation products. All four cases were submitted to the jury on the claims of negligence and strict liability, based on the contention that the asbestos-containing insulation products were defective. For clarity, we shall divide our discussion of the cases into two sections. In section I, we will address the appeal of Owens-Illinois, Inc. from judgments in favor of Othello Armstrong and Forrest Wood and his wife, Loretta. In section II, we will address the appeals of Frederick Stormer and his wife, Alice, and Dominic Celozzi and his wife, Beatrice, from judgments in favor of Eagle-Picher Industries, Keane Corporation and Owens-Corning Fiberglas, and ACandS, Inc., Armstrong World Industries, Celotex Corporation, Eagle-Picher Industries, Fiberboard Corporation, GAF Corporation, Owens-Corning Fiberglas and Owens-Illinois, Inc., respectively.
The appeal of Owens-Illinois, Inc. is derived from the cases of Othello Armstrong versus Eagle-Picher Industries, Owens-Corning Fiberglas and Owens-Illinois, Inc. and Frederick and Loretta Wood versus Owens-Corning Fiberglas and Owens-Illinois, Inc. The jury returned verdicts in favor of Armstrong and the Woods and against each defendant. Pursuant to Md.Cts. & Jud.Proc.Code Ann § 11-109(b) (1989) 1, the jury itemized their damage awards. To Armstrong, the jury awarded $730,000 in compensatory damages of which $5,000 was for future medical expenses and the remaining $725,000 for non-economic damages. To Forrest and Loretta Wood, the jury awarded $635,000 in compensatory damages of which $22,000 was for injury to the Woods' marital relationship. The jury also determined that there was sufficient evidence to allow an award of punitive damages against Owens-Illinois, Inc. and Owens-Corning Fiberglas. After the compensatory damage awards, but before the punitive damage amount was determined, Owens-Corning Fiberglas settled both cases. Armstrong settled for $304,166.33 of which $243,333.33 was designated as settlement of the compensatory damage award and $60,833 as settlement of the punitive damage claim. The Woods settled for $409,625 of which $328,500 was designated as settlement of the compensatory damage award and $82,125 as settlement of the punitive damage claim. Two days later, the jury returned a punitive damage award against Owens-Illinois, Inc. of $1,000,000 in each case.
At a post-trial motions hearing, the compensatory damage award in the Armstrong case was reduced by one-third to $486,666.67 due to the settlement with Owens-Corning Fiberglas pursuant to the Uniform Contribution Among Tort-feasors Act, Md.Code Ann. art. 50, § 19 (1986). The compensatory damage award in the Wood case was reduced by one-half to $317,500 for the same reason. Owens-Illinois, Inc. and Eagle-Picher Industries filed motions for new trial, revision of the judgment, judgment notwithstanding the verdict and remittitur. The court denied the motions and entered final judgments on the verdicts. Owens-Illinois Inc. and Eagle-Picher Industries appealed. The appeal of Eagle-Picher Industries, however, has been stayed by its filing of a bankruptcy petition under Title 11 of the United States Code in the United States Bankruptcy Court for the Southern District of Ohio and thus, Owens-Illinois, Inc. is the sole appellant in these two cases.
Appellant Owens-Illinois, Inc. presents seven issues which we have re-worded and re-ordered as follows:
1. Whether the court erred when it failed to admit into evidence a report of a dust count conducted at its Baltimore shipyards by the Bethlehem Steel Corporation;
2. Whether the court committed reversible error when, in its jury instructions, it refused to define the term "substantial factor";
3. Whether the court erred when it denied appellant's motion for judgment on the issue of proximate cause;
4. Whether the court erred when it denied appellant's motion for judgment on the issue of punitive damages because appellees Armstrong and the Woods failed to introduce sufficient evidence that Kaylo, an asbestos-containing product, was made by appellant with substantial knowledge of a danger to appellees and a gross indifference to that danger;
5. Whether the court erred when it failed to reduce Armstrong's compensatory damages award pursuant to Md.Cts. & Jud.Proc.Code Ann. § 11-108 (1989) which places a cap of $350,000 on non-economic damages;
6. Whether the award of punitive damages violated appellant's right to due process of law by subjecting it to multiple punishments for the same wrong; and 7. Whether the court erred when it did not off-set the jury awards for appellees Armstrong and the Woods by both the compensatory and punitive amounts of the settlements with Owens-Corning Fiberglas.
This appeal concerns the exposure of appellees Armstrong and Wood to Kaylo, an asbestos-containing product used for industrial high temperature thermal insulation in such forms as pipe covering and block insulation. 2 Kaylo was manufactured and sold by Owens-Illinois, Inc. from 1948 to 1958. In 1958, Owens-Illinois, Inc. sold the Kaylo product line to Owens-Corning Fiberglas.
Asbestosis is a pulmonary disease caused by the inhalation of asbestos fibers. It is a progressive condition which causes shortness of breath and difficulty in breathing. The disease is present and active from the time the first fiber gets into the lungs. Depending on the amount of damage to the lungs, the symptoms may not appear for twenty or thirty years.
Othello Armstrong was a laborer and then a welder who was employed at various Bethlehem Steel shipyards from 1942 to 1963, where he worked in the engine and boiler rooms of ships. As a laborer, Armstrong swept up the dust and debris left by others who had cut and installed Kaylo pipe coverings. As a welder, he worked in closed boiler and engine rooms while pipe coverers cut and installed Kaylo pipe coverings and boilermakers cut and fitted Kaylo insulation blocks onto boilers. The cutting, fitting and installation of Kaylo pipe coverings and insulation blocks was extremely dusty work. In 1963, he left the shipyards to work as a stationary engineer at Eudowood Plaza. It appears from the record that Armstrong was not exposed to Kaylo insulation products during the time he worked at Eudowood Plaza from 1963 until his retirement in 1980.
Forrest Wood was a rigger at the Bethlehem Steel Key Highway shipyard from 1941 to 1975. As a rigger, Wood primarily assisted other tradesmen in the removal of equipment and materials from ships. This work included assisting pipefitters in the removal and installation of pipe coverings. This work, like that performed by Armstrong, was extremely dusty.
Additional facts will be presented in the discussion of each issue.
Whether the court erred when it failed to admit into evidence a dust count report conducted by the Bethlehem Steel Corporation at its Baltimore shipyards.
The dust count report is a four page document written by the Industrial Health Engineer of the Bethlehem Steel Corporation who investigated the exposure of employees to asbestos dust at various Bethlehem Steel Corporation shipyards. The defendants moved for the admission of the dust count report and the plaintiffs objected on the grounds that it was not relevant or trustworthy. Although the court appeared to find that the report qualified as a business record, it refused to admit the report because it found it to be untrustworthy and unreliable. The defendants offered to have a custodian of records testify to the foundational requirements necessary to qualify it as a business record pursuant to Md.Cts. & Jud.Proc.Code Ann. § 10-101 (1989). The court found that a custodian of records could not salvage the admissability problems of the dust count report and restated its ruling. We affirm the ruling of the trial court not only on the basis of that court's reasoning, but also because the dust report does not qualify as a business record.
"The rule in Maryland is that business records may be introduced, even though hearsay in nature, when the entry meets the test of 'necessity and circumstantial guarantee of trustworthiness.' " Burroughs Int'l Co. v. Datronics, 254 Md. 327, 348, 255 A.2d 341 (1969) (citations omitted). The criteria are codified in Md.Cts. & Jud.Proc.Code Ann. § 10-101 (1989) which provides in part:
A writing or record made in the regular course of business as a memorandum or record of an act, transaction,...
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