Owens-Illinois v. Gianotti

Decision Date30 October 2002
Docket NumberNo. 2644,2644
Citation813 A.2d 280,148 Md. App. 457
PartiesOWENS-ILLINOIS, INC., et al., v. John GIANOTTI, et ux. ACandS, Inc. v. Harry Cook, Sr., et al.
CourtCourt of Special Appeals of Maryland

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

B. Ford Davis (Gardner M. Duvall, Dwight W. Stone, II and Whiteford, Taylor & Preston, LLP, on the brief), Baltimore, for ACandS, Inc.

Edward J. Lilly (Scott Shellenberger and the Law Offices of Peter G. Angelos, on the brief), Baltimore, for appellees.

John E. Griffith, Jr. and Piper, Marbury, Rudnick & Wolfe, LLP, on the brief, Baltimore, for amicus curiae, Maryland Defense Counsel.

Argued before SALMON, KRAUSER, SHARER, JJ.

SALMON, Judge.

This case concerns the late John Gianotti, a worker whose exposure to asbestos manufactured by appellant, Owens-Illinois, Inc. ("Owens-Illinois"), and others caused him to contract mesothelioma. Mr. Gianotti died from mesothelioma after trial but before a final judgment was entered in this matter.

Several of the important issues briefed and argued in this case were answered in a decision by the Court of Appeals in the case of John Crane, Inc. v. James Scribner, 369 Md. 369, 800 A.2d 727 (2002). At issue in Scribner was the applicability of the "cap" statute set forth in section 11-1081 of the Courts and Judicial Proceedings Article of the Maryland Code (1998 Repl.Vol.). That statute limits the amount of noneconomic damages a plaintiff may recover in a personal injury case. The statute, however, is applicable only to causes of action that arise after July 1, 1986. A major issue presented below was whether Mr. Gianotti's injuries "arose"—for purposes of the "cap" statute-before July 1, 1986. The jury was asked to decide that issue, and it decided that Mr. Gianotti's injuries did arise prior to July 1, 1986. Therefore, the trial court refused to reduce the jury's award for noneconomic damages to Mr. Gianotti or the joint loss of consortium award in favor of Mr. Gianotti and his wife.

The Scribner Court held that, for purposes of section 11-108(b)(1), the proper manner of determining the date when a cause of action "arises" in a case founded on exposure to asbestos is the date when the plaintiff first inhaled asbestos fibers that caused cellular changes. 369 Md. at 394, 800 A.2d 727. The medical basis for this holding was (1) inhalation of asbestos fiber causes cellular damages and (2) such damage occurs "shortly after inhalation." Id. at 392, 800 A.2d 727. The Court noted:

Although the medical evidence shows that cancers take time to develop and may remain in situ and non-invasive for long periods of time, it has not been seriously urged, and we would not be prepared to accept it if it were urged, that an in situ and non-invasive cancer is not an injury; an undetectable tumor is an injury.

Id. (emphasis added).

Penultimately, the Scribner Court held:

[I]n actions for personal injury founded on exposure to asbestos, the court, as an initial matter, may look, for purposes of § 11-108(b)(1), to the plaintiff's last exposure to the defendant's asbestos-containing product. If that last exposure undisputedly was before July 1, 1986, § 11-108(b)(1) does not apply, as a matter of law. If the only exposure was undisputably after July 1, 1986, then obviously the cap applies as a matter of law. In those hopefully rare instances in which there was exposure both before and after July 1, 1986, and there is a genuine dispute over whether either exposure was sufficient to cause the kind of cellular change that led to the disease, the trier of fact will have to determine the issue based on evidence as to the nature, extent, and effect of the pre- and post-July 1, 1986 exposures.

Id. at 394, 800 A.2d 727.

Scribner overruled this Court's decision in Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 692 A.2d 5 (1997), and several other cases in which we held that (1) in asbestos cases, a worker's cause of action, for purposes of the "cap" statute, arose when the plaintiff suffered an injury; (2) an "injury occurs in such cases when the inhalation of asbestos fibers causes a legally compensable harm"; and (3) a legally cognizable "[h]arm results when the cellular changes develop into an injury or disease, such as asbestosis or cancer." Grimshaw, 115 Md.App. at 160, 692 A.2d 5. Thus, under Grimshaw, one looks to when the disease itself first arose in the body, while under Scribner one looks to when the worker first inhaled the fibers that caused the damage. Scribner, 369 Md. at 390, 800 A.2d 727; Grimshaw, 115 Md. App. at 159, 692 A.2d 5.

In the case at hand, Mr. Gianotti was last exposed to asbestos in 1974. Thus, as a matter of law, the cap statute was not applicable to his case.

Although the Scribner decision resolves the central issue in this case, several other matters must be determined.

The Gianottis did not marry until 1986. Therefore, the following question arises: If a worker marries after the date of his last exposure to asbestos, but before any symptoms of his mesothelioma appear, do the worker and his spouse have a viable joint claim for loss of consortium as a consequence of the mesothelioma? The answer to that question is complicated, because in the Grimshaw case one of our holdings was that, for purposes of applying the cap statute, a loss of consortium claim arises at the same time as does the underlying personal injury to the spouse who inhaled the asbestos. Grimshaw, 115 Md. App. at 166-67,692 A.2d 5. And, previously, we also have indicated that a marital relationship must exist at the time of the underlying personal injury in order for the spouses to later bring a joint loss of consortium action. Gillespie-Linton v. Miles, 58 Md.App. 484, 495, 473 A.2d 947 (1984).

Other questions presented by Owens-Illinois in this appeal are:

• Did the trial court abuse its discretion in failing to grant a mistrial after plaintiffs' counsel, in closing argument, mentioned the "cap" statute?

• Did the trial judge misinterpret the meaning of the release signed by John Gianotti and his wife on July 8, 1994?

The Gianottis present the following question in their cross-appeal:

• Did the trial court err in reducing judgments in their favor under the UCATA [Maryland Uniform Contribution Among Tortfeasors Act] based upon a previous default judgment entered against third-party defendant, Babcock and Wilcox ("B & W")?

I. PROCEDURAL BACKGROUND

Five asbestos-related personal injury claims were tried jointly in the Circuit Court for Baltimore City. The plaintiffs were John Gianotti and his wife, Shirley, along with the personal representatives and widows of Harry Cook, Sr.; Aristide Nardone; Donald R. Schrader; and George E. Worthen. In each case the actions were brought against numerous defendants, including Owens-Illinois and ACandS, Inc. The plaintiffs claimed damages for the development of mesothelioma, which resulted from asbestos exposure. At the time the cases were submitted to the jury, ACandS was defending all five cases, but Owens-Illinois was defending only the Gianotti case.

The jury returned verdicts against Owens-Illinois and ACandS in the Gianotti case, awarding Mr. Gianotti $5,500,000 in damages, and Mr. and Mrs. Gianotti $1,000,000 (jointly) for loss of consortium. Judgments were also entered against ACandS in the four other cases.

As a result of post-trial proceedings, the court entered judgments on November 1, 2000. The judgments in favor of the Gianottis were reduced by the pro rata releases of adjudicated joint tort-feasors, and a default judgment against Babcock and Wilcox Company, a third-party defendant in the Gianotti case. Reductions were also made pursuant to confirmed plans of reorganization of several bankrupt defendants. In pertinent part, the court ultimately entered judgments as follows:

Gianotti Case as to ACandS and Owens-Illinois Jointly $1,050,499.71 John Gianotti 175,653.74 John & Shirley Gianotti for loss of consortium

Post-judgment motions were filed by ACandS and Owens-Illinois. Those motions included ACandS's and Owens-Illinois's motions for JNOV and for a partial new trial, which were denied on January 9, 2001. Appeals were filed by ACandS and Owens-Illinois. A timely cross-appeal was then filed by the plaintiffs in the Cook, Nardone, and Gianotti cases. Subsequent to oral argument before us, ACandS settled with the plaintiffs and dismissed its appeal.

II. ISSUES RESOLVED BY THE SCRIBNER DECISION

Owens-Illinois contends that the trial judge erred by denying their motions for judgment as to the cap issue, as well as their later post-trial motions. According to Owens-Illinois, those motions should have been granted because (a) the Gianottis failed to prove that their claims "arose" before July 1, 1986, and (b) the court wrongfully allowed counsel for the Gianottis to introduce expert testimony and to argue to the jury that the Gianottis' injuries "arose" prior to July 1, 1986.

The law applicable to appeals is that existing at the time the case is decided. See American Trucking Associations, Inc. v. Goldstein, 312 Md. 583, 591, 541 A.2d 955 (1988)

. The brief of Owens-Illinois, as well as the amicus brief filed by the Maryland Defense Council, Inc., were well-researched and their arguments were persuasively presented. Unfortunately, those briefs were filed several months before June 13, 2002—the date the Scribner case was decided.

Although the jury in the case at hand decided that Mr. Gianotti was injured prior to July 1, 1986, it was unnecessary for the jury to even consider that issue because it was undisputed that the last date of asbestos exposure of Mr. Gianotti was before July 1, 1986. Applying the dictates of the Scribner case to the facts of this case, the plaintiffs met their burden of proof as to the cap issue. No evidentiary ruling concerning expert...

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