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Tuesday, October 15, 2019

Former smoker's award won't be reduced in Md. asbestos case

By Heather Isringhausen Gvillo | Aug 26, 2014

BALTIMORE (Legal Newsline) – Maryland's highest court has ruled that a trial court properly rejected a defendant’s request to have the jury apportion damages in an asbestos case involving a former smoker.

Judge Clayton Greene, Jr. delivered the opinion on July 21 in the Court of Appeals of Maryland with judges Lynne A. Battaglia and Irma S. Raker concurring in part and dissenting in part.

The decision involved four separate asbestos cases bundled for trial in the circuit court. The appeals court addressed two issues raised on appeal: The argument on use plaintiffs in each case and the argument on apportionment of damages in one specific decedent’s case.

In regards to the “use plaintiffs” argument, the appeals addressed whether they were precluded from recovering damages by not formally joining in the proceedings.

The Wallace & Gale Asbestos Settlement Trust was the only remaining defendant at the time of trial in February 2011. Each plaintiff alleged asbestos exposure from asbestos-containing insulation applied to pipes.

Wallace & Gale was a Baltimore-based insulation and roofing contractor that filed for Chapter 11 bankruptcy in 1985, thus setting up the trust to handle its asbestos liability.

After a 15-day trial, the jury awarded each of the plaintiffs separate awards against Wallace & Gale.

Then in May 2011, the trial court entered orders in the four cases reducing the jury verdicts after application of the cap on non-economic damages, bankruptcy settlement payments and joint tortfeasor credit for cross claims against another defendant.

Decedent Levester James worked as a laborer at the Baltimore-based copper refinery American Smelting and Refining Company’s tank room from 1968 to 1972. He died from lung cancer in July 2004.

The jury awarded him and his family $2,035,684.71. The final judgment was reduced to $980,209.89.

Decedent Mayso A. Lawrence, Sr., worked as a laborer at the American Smelting and Refining Company and in Bethlehem Steel’s 68-inch hot strip mill at Sparrows Point. He died from lung cancer in October 2007.

The jury awarded him and his family $2,930,532.09. The final judgment was reduced to $782,621.24.

Decedent Rufus E. Carter worked as a laborer and crane operator at the American Smelting and Refining Company from 1966 to 1975. He died from lung cancer in November 2003.

The jury awarded him and his family $2,017,302.50. The final judgment was reduced to $976,203.41.

Decedent Roger C. Hewitt, Sr. worked as a laborer, mechanic steamfitter and pipefitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel from 1946 to 1978.

Hewitt was also a long-time smoker. According to the opinion, he smoked a half-pack to a full pack of cigarettes every day for 65 years.

He died from lung cancer in December 2008.

During trial, Wallace & Gale expert Dr. Gerald R. Kerby testified that Hewitt’s tobacco use is roughly 75 percent at fault for causing the decedent’s lung cancer, while his asbestos exposure is roughly 25 percent at fault.

However, the trial court did not allow the jury to apportion damages, saying it would be an unscientific, wild guess.

“If the court of appeals wants to send us down that path to another swamp, I suppose we could do that,” the trial court concluded. “It’s an interesting issue. Technologically, it’s interesting. But we don’t have any basis for drawing an intelligent conclusion regarding what we’re going to plug into the matrix. So no, we’re not doing that.”

As a result, the jury awarded Hewitt and his family $2,686,686.07. The final judgment was reduced to $1,325,495.95.

Wallace & Gale appealed to the Court of Special Appeals, which then sent it to the Court of Appeals of Maryland.

In regards to the apportionment issue, the lower appeals court held that the trial court erroneously refused to allow Kerby’s testimony and jury instructions on apportionment. The high court disagreed, saying the lower court improperly relied on New Jersey case law rather than Maryland law.

Greene explained that apportionment of damages is only appropriate when the injury is “reasonably divisible” and when there are two or more causes of injury.

“Where an injury is reasonably – or theoretically – divisible, the burden of proof would shift to the defendant to prove that apportionment of damages is appropriate,” Greene wrote.

However, the court concluded that Hewitt’s injury is not reasonably divisible.

“While there are many variables that go into the causal effects of tobacco and asbestos exposure,” Greene wrote, “there is evidence that the effect is multiplicative in nature, which we are satisfied is indicative of an indivisible injury.”

Greene explained that under a comparative negligence system, “a plaintiff’s contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of fault.”

He added that apportioning damages to the plaintiff’s smoking history is equivalent to holding Hewitt accountable.

The court concluded that the trial court properly excluded Kerby’s testimony and rejected apportionment of damages.

Raker dissented, saying the Court of Special Appeals made the correct decision when it ruled that apportionment concerns causation rather than comparative negligence principles.

“In my view,” Raker wrote, “a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: death can be capable of apportionment as to damages, but not as to fault.”

Furthermore, Raker argued that the majority improperly relied solely on the plaintiffs’ experts at trial to support its conclusion against apportionment when it excluded Kerby’s testimony.

As a result, Raker suggests remanding the case so a hearing could be held to determine if Kerby’s opinion met the standards for scientific testimony before it was accepted or rejected.

“Doing so would have permitted the court to make an informed decision as to whether there was a reasonable basis for apportioning the injury,” Raker wrote. “The majority’s per se rule prevents a trial court from evaluating the merit of emerging scientific theories of causation.”

In regards to the “use plaintiffs” argument, the trial court held that "there is no question that use plaintiffs have to be included. They’re supposed to be included. They’re necessary parties.”

“Use plaintiffs” in this case refer to the decedents’ families. They are not considered typical plaintiffs because they never formally joined the action.

Regardless, this court agreed with the trial court that the “use plaintiffs” are still able to recover damages.

Greene explained that Maryland law does not require a formal joinder by the designated use plaintiffs in a wrongful death action.

“Absent any clear direction or requirement that formal joinder was necessary, on the facts of this case, the use plaintiffs’ knowing consent to the litigation brought on their behalf and active participation in the litigation was the functional equivalent of joinder,” he wrote.

Greene added that according to Maryland law at the time of trial, the use plaintiffs were real parties in interest and were not required to formally join in order to share in an award, especially because they were listed as plaintiffs in several of the filings, they were deposed, testified at trial and were subject to cross examination.

“It’s obvious that everyone involved, including Respondent’s counsel, considered the use plaintiffs to be parties to the litigation,” Greene concluded.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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