Ragin v. Porter Hayden, 706

• Citation: 754 A.2d 503,133 Md. App. 116
• Decision Date: 29 June 2000
• Docket Number: No. 706,706
• Parties: Joyce RAGIN, Personal Representative of the Estate of Flemmie Pettiford, v. PORTER HAYDEN COMPANY et al.
• Court: Court of Special Appeals of Maryland

754 A.2d 503

133 Md. App. 116

Joyce RAGIN, Personal Representative of the Estate of Flemmie Pettiford, v. PORTER HAYDEN COMPANY et al.

No. 706, Sept. Term, 1999.

Court of Special Appeals of Maryland.

June 29, 2000.

Clifford W. Cuniff, Baltimore, for appellant.

Padraic McSherry Morton (Gardner M. Duvall and Whiteford, Taylor & Preston, L.L.P. on the brief), Baltimore, for appellee.

Argued before WENNER, HOLLANDER and SONNER, JJ.

HOLLANDER, Judge.

This case is a by-product of the consolidated asbestos trials conducted in the Circuit Court for Baltimore City. We are called upon here to consider the scope of a stipulation as to liability executed in connection with a consolidated asbestos case, and to construe a jury verdict in a case that was previously considered by the Court of Appeals in 1995.¹

Joyce Ragin, appellant, is the daughter of the late Flemmie Pettiford and personal representative of his estate. In 1990, appellant initiated a wrongful death and survival action in the Circuit Court for Baltimore City against more than a dozen defendants, including Porter Hayden Company ("Porter Hayden"),² appellee, a supplier and installer of products containing asbestos. She alleged that Pettiford suffered from asbestosis as a result of his occupational exposure to asbestos-containing products, for which the defendants were allegedly responsible. It is undisputed that Pettiford's asbestos exposure ended in 1945.

Appellant's suit was subsequently consolidated with 8,554 other actions involving claims for personal injuries or wrongful death arising from asbestos exposure. The cases were consolidated in order to resolve at one trial various common issues, including "state of the art"³ and punitive damages. That trial was conducted in four phases in 1992 in the Circuit Court for Baltimore City, (Levin, J. presiding), and is commonly referred to among asbestos litigators as Abate I.

In Abate I, the jury found, inter alia, that Porter Hayden was liable for compensatory damages as to users and bystanders on a negligence basis for the period 1956 through 1979, and that it was strictly liable to users and bystanders from 1956 to the present. Godwin, 340 Md. at 380, 667 A.2d 116. In addition, the jury determined that appellee was liable for punitive damages from 1965 to July 30, 1992, the date of verdict on that issue. Post trial motions were denied in a 225 page opinion issued by Judge Levin in June 1993. Following additional legal proceedings, a final judgment was entered in November 1993.

A second consolidated asbestos trial, known as Abate II, was held in the Circuit Court for Baltimore City over a period of many months, beginning in June 1994 and concluding in February 1995 (Rombro, J., presiding). With respect to approximately 1,300 plaintiffs, Abate II resolved common issues identical to the common issues tried in Abate I. During the trial of Abate II, appellee reached an agreement with some of the plaintiffs in that case, in the form of a "Stipulation," in which appellee waived proof of negligence and strict liability in return for the plaintiffs' agreement to waive their claims with respect to punitive damages, breach of warranty, fraud, and conspiracy.

The plan for asbestos litigation in the circuit court also contemplated so-called "mini-trials," to be held after the consolidated trials, at which the claims of the common issue plaintiffs would be finally adjudicated upon determination of whether an individual common issue plaintiff was actually exposed to and injured by asbestos products. Appellant's mini-trial never took place, however, because the circuit court granted appellee's motion for summary judgment; that ruling is at issue here. In granting summary judgment, the court reasoned that appellant was not entitled to pursue her claim because Pettiford's asbestos exposure ended in 1945 and the jury had determined in Abate I that appellee was not liable to any common issue plaintiffs whose last exposure to asbestos occurred before 1956.

After the court denied appellant's motion to alter or amend judgment, appellant noted this appeal. She presents the following questions for our review, which we have rephrased:

I. Did the circuit court err in concluding that the Stipulation entered into during Abate II and the negligence date established in Abate I barred appellant's recovery?

II. Assuming, arguendo, that the Stipulation did not include appellant, did the circuit court err in concluding that appellee did not owe Pettiford a continuing duty to warn?

For the reasons that follow, we shall vacate the judgment and remand.

FACTUAL BACKGROUND

From the late 1920s until approximately 1972, Porter Hayden and its predecessors distributed and installed asbestos products, primarily for Johns-Manville, a manufacturer. Godwin, 340 Md. at 356-57, 667 A.2d 116. Porter Hayden "describe[d] itself as ... an insulation contractor and supplier of thermal insulation products in Maryland and three other States." Id. at 356, 667 A.2d 116. By about 1972, Porter Hayden discontinued its use of products containing asbestos. Id. at 364, 667 A.2d 116.

Pettiford was allegedly exposed to asbestos dust in the course of his employment from April 1943 to September 1945. During that time, Pettiford worked as a rigger/lagger for Maryland Shipbuilding and Drydock and as a rigger at Bethlehem Steel's Fairfield Shipyard. Eventually, Pettiford developed asbestosis and died in February 1990.⁴ Appellant filed her complaint on August 28, 1990, "incorporating by reference the causes of action ... set forth in the `Shipyard Cases Master Complaint,'"⁵ and asserting claims for strict liability, negligence, conspiracy, breach of warranty, and wrongful death. Because appellant's case was part of the consolidation in Abate I, exposure and damage issues were to be resolved at a separate mini-trial.

Trial in Abate I was divided into four phases and consumed six months in 1992. The case, as we noted, involved certain common issues raised by 8,555 plaintiffs, all of whom filed suit prior to October 1, 1990. In addition, to facilitate the jury's understanding of the issues presented in an asbestos case, the cases of six illustrative plaintiffs were tried to full and final judgments. Although over 100 defendants had been named in the various suits, the claims against all but fifteen were dismissed prior to trial, and nine of the remaining defendants settled prior to verdict. Several defendants also filed various cross-claims. The court severed most of the cross-claims from Abate I, and determined that they would be tried in Abate II.

The Abate I jury found in favor of three of the individual plaintiffs and against the other three. On the common issues applicable to the remaining 8,549 plaintiffs, the jury found the six remaining defendants, including Porter Hayden, and one cross-claim defendant, negligent and strictly liable. As to appellee, the jury in Abate I found Porter Hayden liable for compensatory damages to asbestos users and bystanders from 1956 to 1979 on a negligence theory, and from 1956 to the date of verdict on a strict liability theory. Moreover, four defendants, Porter Hayden among them, were found liable for punitive damages. One of those defendants subsequently settled and another was dismissed from the case after petitioning for relief under the Bankruptcy Code. The Court of Appeals subsequently reversed the award of punitive damages against the remaining two defendants, including Porter Hayden. See generally Godwin, 340 Md. 334, 382, 424-26, 667 A.2d 116 (concluding, inter alia, that evidence was insufficient to support punitive damages award against Porter Hayden as to bystanders and, on motion for reconsideration, that evidence was also insufficient to support punitive damages against Porter Hayden with respect to users). Moreover, the Court affirmed in part and reversed in part the various judgments for compensatory damages.

In June 1994, nearly two years after the conclusion of Abate I, Abate II proceeded to trial in the circuit court. That trial, which lasted several months and continued into early 1995, involved approximately 1,300 plaintiffs who filed asbestos suits between October 1, 1990, and October 1, 1993. In three phases, the parties litigated common issues identical to those litigated in Abate I, as well as the claims of five illustrative plaintiffs, which were tried to full and final judgment. By the time of trial, the plaintiffs sought to recover from eleven defendants. Moreover, Abate II resolved cross-claims severed from Abate I, as well as cross-claims and third-party claims related to Abate II. In its jury instructions in Abate II, the court advised the jury, inter alia, that a manufacturer has a continuing duty to warn users of a defective product, and must make reasonable efforts to do so. ACandS, 121 Md. App. at 637, 710 A.2d 944.

With respect to the negligence claim at the trial in Abate I, the verdict sheet read, in pertinent part:⁶

NEGLIGENCE

1.

a) Do you find by a preponderance of the evidence that Defendant Porter Hayden Company was negligent in manufacturing, selling, distributing or installing any of its asbestos-containing products? Indicate your answers on the chart [below].

b) If you find Defendant Porter Hayden Company was negligent as to one or more products, indicate the dates of the Defendant's negligence for each product with respect to foreseeable USERS and BYSTANDERS.

DEFINITIONS

A USER is defined as an individual who comes in contact with asbestos fibers by directly handling an asbestos-containing product.

A BYSTANDER is defined as an individual who did not directly handle an asbestos-containing product, but was near enough to an asbestos-containing product's fibers to come in contact with those fibers.

* * *

(a) (b) NEGLIGENT DATES OF NEGLIGENT Porter Hayden Company MANUFACTURE, MANUFACTURE, SALE SALE, DISTRIBUTION OR DISTRIBUTION INSTALLATION, IF ANY OR INSTALLATION...