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Thursday, October 17, 2019

Maryland court upholds $7.2 million award to couple over husband's mesothelioma diagnosis


By Charmaine Little | Oct 4, 2018

ANNAPOLIS, Md. (Legal Newsline) – A Maryland appellate court has upheld a $7.2 million award to a couple in an asbestos injury case.

On Sept. 26, Justice Stuart Berger of the Court of Special Appeals of Maryland agreed with a trial jury that returned a verdict in favor of a man who was diagnosed with mesothelioma after being exposed to asbestos at work.

The jury for the Circuit Court for Baltimore City found that William Edward Busch’s mesothelioma diagnosis came from work conditions during his time he worked as a steamfitter on a construction project at Loch Raven High School (LRHS) that contained asbestos in the insulation products Wallace & Gale (W&G) provided. W&G is the predecessor of the Wallace and Gale Asbestos Settlement Trust, which appealed the trial court’s ruling with the current court. 

It was noted during trial court, Busch and his wife, Kathleen Busch, were awarded $14.5 million in damages, which the Circuit Court later lowered to $7.2 million because of cross-claims against defendants who weren’t present.

The appeals court looked at five different aspects before it decided to affirm the lower court’s decision. For starters, it noted that WGAST said the Circuit Court erred when it denied its motion for summary judgment under the notion Busch didn’t properly present legal evidence to support rational inference of causation. Busch was considered a bystander who was allegedly exposed to asbestos since he worked nearby but didn’t physically take part in the installation.

While he didn’t provide much evidence, the appeals court said what he did provide (time sheets, partial billing statements) was enough. While it doesn’t prove W&G put asbestos insulation in the boiler for the boiler room of the school, the evidence did show that it was pretty probable that W&G was liable and responsible for the work.

WGAST also raised four different issues concerning evidentiary determinations and jury instructions. The first was evidence connected to the dismissal of defendant McCormick Asbestos Co. from the case. WGAST didn’t want any evidence connected to McCormick’s dismissal conveyed to the jury. 

The appeals court decided since the lower court allowed Busch to let the jury know McCormick had been dismissed from the case to prevent any possible confusion after WGAST informed the jury McCormick had been included in the lawsuit to begin with. It ruled the Circuit Court didn’t abuse its discretion on this matter.

WGAST also appealed the Circuit Court’s decision to allow W&G documents related to when Busch wasn’t working at LRHS into evidence. While WGAST said the trial court shouldn’t have allowed it, the appeals court found it all relevant.

As for WGAST’s issue with jury instruction, the entity wanted the Circuit Court to inform the jury that Maryland law bars the fiber drift theory (that asbestos fibers can be airborne and land anywhere) of liability for injury concerning exposure to asbestos. Still, the Appeals Court pointed out the evidence Busch presented didn’t even include any instruction concerning the fiber drift theory. Instead, Busch’s theory surrounded his exposure to insulation contractors installing items that contained asbestos in the LRHS boiler room. It was noted he spent 70 percent of his three to four months working at LRHS in the school’s boiler room.

WGAST also said the “Circuit Court erred in connection with its instruction to the jury about the evidentiary weight of Busch’s interrogatory responses and statements in Busch’s complaints,” according to the opinion. It said the court’s instructions were “watered-down, incorrect statements of law.” 

The appeals court disagreed and said its actually an accurate statement of law and the Circuit Court most likely provided the instruction to reduce any jury confusion.

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