Reiter v. Pneumo Abex, LLC

• Decision Date: 19 November 2010
• Docket Number: No. 72, Sept. Term, 2008.,72, Sept. Term, 2008.
• Citation: 417 Md. 57,8 A.3d 725
• Parties: Catherine L. REITER et al. v. PNEUMO ABEX, LLC et al.
• Court: Maryland Court of Appeals

8 A.3d 725

417 Md. 57

Catherine L. REITER et al.

v.PNEUMO ABEX, LLC et al.

No. 72, Sept. Term, 2008.

Court of Appeals of Maryland.

Nov. 19, 2010.

Michael T. Edmonds (Timothy J. Hogan of Law Offices of Peter T. Nicholl, Baltimore, MD), on brief, for petitioners.

Steven J. Parrott (Laura M. Higgs of DeHay & Elliston, L.L.P., Baltimore, MD), on brief for respondents.

Neil J. MacDonald (Helyna M. Haussler of Hartel, Kane, DeSantis, MacDonald & Howie, LLP, Beltsville, MD), on brief, for respondents.

Warren N. Weaver (James R. Benjamin, Jr. of Whiteford, Taylor & Preston, L.L.P., Baltimore, MD), on brief, for respondents.

F. Ford Loker, Douglas B. Pfeiffer, Laura A. Cellucci, Amanda Neidert, Baltimore, for Amicus Curiae brief of GTE Products of Connecticut Corporation.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, LAWRENCE F. RODOWSKY (Retired, specially assigned) and ALAN M. WILNER (Retired, specially assigned), JJ.

MURPHY, J.

The Petitioners in the case at bar are the widows of steelworkers who were employed by the Bethlehem Steel Corporation at its Sparrows Point facility ("facility"),¹ and the Respondents are corporationsthat supplied products containing asbestos to the facility.² In the Circuit Court for Baltimore City, Petitioners—in their individual and representative capacities—filed complaints in which they asserted that theirhusbands died from lung cancer caused by exposure to the asbestos contained in the products supplied by the Respondents. The Petitioners' cases were among the cases "consolidated" into two groups: (1) the "Adams" Group, which included decedents William A. Reiter and Harold R. Williams; and (2) the "Conyers" Group, which included decedent William H. Johnson. At the conclusion of a two day motions hearing, the Circuit Court granted Respondents' motions for summary judgment, and entered judgment against each of the Petitioners.

Petitioners noted an appeal to the Court of Special Appeals, and that court affirmed the judgment of the Circuit Court. Reiter v. ACandS, Inc., 179 Md.App. 645, 947 A.2d 570 (2008). Petitioners then filed a petition for writ of certiorari in which they requested that this Court answer the following questions:

I. Whether the grant of summary judgment dismissing [Petitioners'] asbestos injury claims as a matter of law on the issue of substantial factor causation constitutes error where [Petitioners] presented evidence that asbestos-containing crane brakes of the [Respondents] were present throughout the areas where [Petitioners] worked and that [Petitioners] worked in the vicinity of those crane brakes when the crane brakes emitted asbestos-containing dust to which [Petitioners] were exposed[?]

II. Whether the grant of summary judgment dismissing [Petitioners'] asbestos injury claims as a matter of law on the issue of substantial factor causation constitutes error where the court requires direct testimonial evidence of specific exposures and ignores circumstantial evidence of such exposures[?]

III. Whether the grant of summary judgment dismissing [Petitioners'] asbestos injury claims as a matter of law on the issue of substantial factor causation constitutes error where the grant of summary judgment is based on the theory of market share liability and the evidence demonstrated that [Respondents'] asbestos-containing products were in place where [Petitioners] worked and that theseproducts emitted dust to which [Petitioners] were exposed[?]

We granted the petition. 405 Md. 506, 954 A.2d 467 (2008). From our review of the record, we conclude that Petitioners' evidence was sufficient to generate a jury issue on the question of whether (1) each decedent was exposed to asbestos dust at his workplace, and (2) Respondents manufactured some of the crane brake products used at the facility. We also conclude, however, that Petitioners' evidence was insufficient to establish that any of the Respondents'products were used at the specific site(s) where the Petitioners actually worked. We shall therefore affirm the judgment of the Court of Special Appeals.

Factual Background

The record includes the following information about the decedents:

William H. Johnson, who worked as a laborer in the slab yard from 1960-1972, died of lung cancer on May 16, 2003. Respondents Square D and Cutler-Hammer are implicated in his suit. Mr. Johnson was never deposed. Mr. Johnson's only fact-specific witness was Mr. Walter John Sperl ("Mr. Sperl"). Although he occasionally worked with Mr. Johnson at other locations in the facility, Mr. Sperl testified that the only location at which Mr. Johnson worked with any frequency or regularity was the area of the slab yard adjacent to the 56-Inch Hot Strip Mill. This area was the size of nearly three football fields.

William A. Reiter, who worked in the tin mill from 1947-1990, died on November 25, 2002 from carcinoma of the lung, atrial fibrillation, hypertension and coronary heart disease. Only Square D is implicated in his suit. Mr. Reiter was never deposed. The only fact-specific witness deposed in Mr. Reiter's case was Mr. Lloyd Martin ("Mr. Martin"). Mr. Martin began working with Mr. Reiter at the tin mill sometime in 1960 when Mr. Reiter held a ground level position in the tin mill as a line worker in the coil prep line. According to Mr. Martin, Mr. Reiter never worked atany location of the tin mill other than the coil prep line. The tin mill itself accounted for nearly 480 acres of the entire Sparrows Point facility. The coil prep line accounted for 50 square feet of this area.

Harold R. Williams, who worked as a laborer at the facility from 1964-1993, died on October 17, 2003 of pneumonia and small cell lung cancer. Square D, Abex, and Cutler Hammer are all implicated in Mr. Williams' suit. The only witness deposed in Mr. Williams' suit was Robert Freeman ("Mr. Freeman"), who testified at his deposition that beginning in the early 1960's he worked with Mr. Williams in the scrap yard. By the mid 1960's both men were assigned to work at the "finishing end" of the Number 3 Rod and Wire Mill. Mr. Freeman stated that he and Mr. Williams would see each other roughly 15-20 times per day and that Mr. Williams' job duties were performed exclusively at the finishing end. The finishing end of the Number 3 Rod and Wire Mill was an area that was the size of nearly three football fields.

The record includes the following product identification evidence:

Slab Yard: Joe Burlock, who worked at the blooming mills and the slab yards from 1964-1985, testified that Cutler-Hammer and Square D brake linings were used on the crane brakes throughout the site during this time. Eddie Hawkes, who worked as a crane operator in the slab yard from 1964-1975, identified both Cutler-Hammer and Square D braking systems on crane brakes at these mills throughout the period that he worked there.³ William Devilbiss, who worked at the blooming mills and slab yards as well as the hot strip mills from 1964 through the 1980's, testified that Cutler-Hammer brake liningswere used at these sites during this period of time.

Tin Mill: Gerald Myers, who worked in the tin mill from the early 1960's through the 1980's, testified that Square Dbrake linings were used at that site during this period of time. Bobby Sherrod, who worked in the tin mill from 1975-1985, testified that Square D brake linings were used at that site during the entire time that he worked there. James Tent, who worked at the tin mill from 1970-1972, testified that Square D brake linings were used on the crane brakes at that site during this period of time.

Rod and Wire Mills: Neil White, who worked in one of the three rod & wire mills from 1959 into the 1980s, identified Westinghouse (Pneumo Abex) crane brake linings, Square D brake linings, and Cutler-Hammer brake linings in the mill throughout that period of time. Frank Mortis, who worked from 1970 to 2003 as an electrician throughout the facility, identified crane brake units supplied by Cutler-Hammer and Square D.

The record shows that, while granting motions for summary judgment in the Petitioners' cases, and denying the Respondents' motions for summary judgment in cases involving other plaintiffs, the Circuit Court delivered an oral opinion that included the following findings and conclusions:

The Court is mindful of the case law which has been adverted to by all parties concerned, in particular the Balbos case, and would note that in Balbos, the Court of Appeals adopted what is known as the frequency, regularity, and proximity test to determine the legal sufficiency of evidence of substantial factor causation in asbestos personal injury cases.

And Balbos makes it clear that when the exposure of any given bystander, and in all instances, the plaintiffs in these cases are bystanders, 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 ...

While each of the overhead cranes, without dispute, had multiple braking systems, these brakes were not located anywhere close to the average worker in these cavernous facilities; rather, the brakes were located dozens of feet offthe ground and were in some instances five, maybe eight stories high in some locations.

Taking into account the massive cavernous size of the facilities as well as the distance from laborers to the braking systems on the cranes, plaintiffs have ... failed to show that workers were sufficiently proximate to or in the vicinity of the crane brakes to be considered in or very near the presence of asbestos-containing products and able to inhale fibers released from the products, as the Court of Appeals indicated in Georgia-Pacific [ v.] Pransky, 369 [Md.] 360 , [a] 2002 case....

In other case law which I think is relevant to advert to at this point and which is relied upon heavily by each of the defendants with reference to the bystander cases before the Court, Lohrmann tells us that

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