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R.J. Reynolds Tobacco Co. v. Stidham

Court of Appeals of Maryland

July 5, 2016

R.J. REYNOLDS TOBACCO CO., et al.
v.
DOUGLAS A. STIDHAM, etc., et al.

          Argued 5/9/2016

         Circuit Court for Baltimore City Case No. 24X08000326

          Barbera, C.J. Greene McDonald Harrell, Glenn T. (Retired, Specially Assigned) Battaglia, Lynne A. (Retired, Specially Assigned) Raker, Irma S. (Retired, Specially Assigned) Wilner, Alan M. (Retired, Specially Assigned), JJ.

          OPINION

          Wilner, J.

         This case is another attempt by plaintiffs with lung cancer to join in one action claims against both asbestos and tobacco defendants on the premise that their cancers arose from exposure to the products of both sets of defendants – that the cancers were caused by both smoking cigarettes and exposure to asbestos. As it had done before in other cases, the Circuit Court for Baltimore City refused to permit the joinder of the two sets of defendants on the special asbestos docket maintained by the court.

         The issues in this appeal are largely procedural ones: whether there is a final judgment in the case; whether the plaintiff's appeal, in any event, is moot and should be dismissed on that ground; if the appeal is not moot, whether the Circuit Court erred or abused its discretion under Md. Rule 2-212 in denying joinder of the two sets of defendants; and, even if the appeal is moot, whether the Court of Special Appeals erred in addressing the joinder argument made by the plaintiff for guidance of the Circuit Court in other pending cases where joinder may be sought. We shall conclude:

(1)There is a final judgment in the case;
(2)The appeal, however, is moot and should be dismissed on that ground; and
(3)The Court of Special Appeals did not err in expressing its views on the joinder issue for the guidance of the lower court in other cases, but, now that the case is before us, we shall do so.

         BACKGROUND

         The Asbestos Docket in Baltimore City

         Much has been written about the avalanche of asbestos cases that began overwhelming courts throughout the country in the 1970s, and there is no need for us to repeat it all.[1] Suffice it to say that the Circuit Court for Baltimore City was, and continues to be, especially hard hit, in large part because of the shipbuilding industry that flourished in and around the City during and after World War II, in which asbestos products were stockpiled and commonly used.[2] In ACandS v. Godwin, 340 Md. 334, 342, 667 A.2d 116, 119 (1995), this Court noted that, in September 1987, 1, 000 asbestos cases had already been filed in that court, that by 1990, more than 4, 900 such cases had been filed, and it was expected that 50 additional cases would be filed each week. This Court's Standing Committee on Rules of Practice and Procedure heard testimony in 1995 that 10, 000 cases were then pending. It is currently estimated that approximately 30, 000 asbestos cases are pending in the Circuit Court for the City.

         These cases presented at least three major problems. First, of course, was the sheer volume. They are almost always jury cases; how can one court, with ever-increasing criminal, juvenile, and domestic dockets, deal in a proper and timely manner with such a volume? Second, they are complex product liability cases, with myriads of derivative claims – cross-claims, counter-claims, and third-party claims – presenting issues not just of liability to the plaintiffs but of contribution and indemnity. They can take, and have taken, weeks or months to try. As we pointed out in Godwin, supra, 340 Md. at 342, 667 A.2d at 119-20, if, as anticipated in the Circuit Court's 1990 case management plan, two judges would be designated to try ten consolidated plaintiffs' actions at a time, one batch per judge each month, by the end of the century new filings would be ten times greater than the number of cases tried.

         The third problem was that, in the great majority of these cases, the plaintiff, though perhaps able to demonstrate some biological effect from exposure to asbestos products, had yet to suffer any symptoms, any serious illness.[3] In order to avoid a problem with the statute of limitations, the cases needed to be filed because some injury had occurred, but they might not be ready to try for many years and there remained the real prospect of dismissal under Md. Rule 2-507 for inactivity. The combination of these problems tended to make these cases unique.

         Like courts elsewhere, the Circuit Court tried a number of innovative techniques in an attempt to break the logjam, including an effort at global settlements through court-annexed mediation. None of those techniques cured the problem, or even made much of a dent in it. In 1990, the court made plans to consolidate 8, 555 pending actions for trial on certain common issues – whether the defendants manufactured, sold, distributed, or installed defective products, whether they violated a duty to warn of dangers inherent in the products, and whether they could be liable for punitive damages. The cases of six of those plaintiffs would be tried on all issues except derivative claims, which were reserved for a later consolidated trial. With respect to the other 8, 549 plaintiffs, if the verdicts on the common issues permitted a finding of liability, absent settlements, further trials would be necessary in each of those cases to resolve issues personal to the particular plaintiffs. The major consolidated trial lasted six months. The judgments entered in that case were appealed and resolved by this Court in Godwin. So-called "mini-trials" on the individual issues then ensued.

         In the meanwhile, new cases were pouring in. Between 1990 and 1993, an additional 1, 300 new asbestos cases were filed. Those cases were consolidated for trial on common liability issues arising from them and on the derivative claims that had been severed from the first consolidated trial. The second consolidated trial lasted eight months. The appeal took another seven years. See ACandS v. Abate, 121 Md.App. 590, 710 A.2d 944 (1998) and Crane v. Scribner, 369 Md. 369, 800 A.2d 727 (2002). In the meanwhile, for cases that were not settled, the "mini-trials" continued. See Keene Corp. v. Levin, 330 Md. 287, 623 A.2d 662 (1993). The device of major consolidated trials on common issues was abandoned in favor of trying clusters of smaller groups, mostly of mesothelioma and lung cancer cases.[4]

         In 1987, while contemplating the consolidation approach and through a comprehensive master pre-trial order, the court created a special asbestos docket and special procedures that would govern asbestos cases. The order applied only to personal injury and wrongful death actions based on exposure to asbestos. Among other things, it (1) appointed named individuals as liaison counsel with authority to speak for the respective parties in matters relating to discovery and pre-trial proceedings, call meetings for the purpose of coordinating responses to questions from the court, and for initiating proposals for joint briefs and schedules, (2) created in the clerk's office five separate master files for the filing of papers (trades cases, Bethlehem Steel cases, railroad cases, other asbestos cases, and shipyard cases) and directed in some detail how cases were to be allocated to those master files, (3) created special discovery procedures, including requirements for master sets of interrogatories, procedures for document requests and requests for admissions, procedures to govern depositions, including videotaped depositions, and limitations on medical examinations of plaintiffs, and (4) created master pre-trial schedules. Although the 1987 order has been amended from time to time – the latest being in 2013 – those kinds of special procedures, including electronic filing of documents, applicable only to asbestos cases, still exist.

         Those orders dealt with cases that were headed for trial. They did not address the third problem noted above, of cases filed but not ready to be tried because the plaintiff was still symptom-free. That problem was dealt with through the adoption of Md. Rule 1211A (later renumbered as Rule 16-203 and recently renumbered again as Rule 16-306) in 1992. That Rule, expressly limited to actions seeking money damages for personal injury or death allegedly caused by exposure to asbestos or products containing asbestos, permits the administrative judge of the Circuit Court for Baltimore City to establish a special inactive docket for asbestos cases filed in or transferred to that court. The Rule permits the order to specify the criteria for placement of asbestos cases on that inactive docket and for the removal of such cases from the docket and to stay the time for filing responses to the complaint, discovery, and other proceedings in cases on the docket. The Rule further exempts cases on the inactive docket from Rule 2-507.

         Directly on the heels of the adoption of that Rule, the administrative judge of the Circuit Court adopted an administrative order that (1) required all future asbestos cases to be placed initially on the inactive docket, (2) established medical criteria for removal of cases from that docket, and (3) established procedures for seeking to have a case removed from the inactive docket and either placed on the court's active civil docket or, if the case had initially been transferred from another county, sent back to that county. See In re: Asbestos Personal Injury and Wrongful Death Asbestos Cases, No. 92344501 (1992 WL 12019620).[5] That order also has been amended from time to time, but not in any way relevant to this case. It thus appears that asbestos cases in Baltimore City are governed by the two administrative orders – one dealing with the inactive docket and the other controlling pre-trial procedure after a case is removed from that docket.

         Joinder of Tobacco and Asbestos Cases

         As noted, this is not the first attempt on the part of plaintiffs suffering from lung cancer to join tobacco and asbestos companies in a single action in the Circuit Court for Baltimore City, in an effort to establish joint and several liability on their part for contributing to the development of the cancer. According to the second amended complaint filed in this case, medical evidence regarding what later came to be called "synergy" was published in the 1950s and the tobacco industry was aware of it in the 1960s. The appellate courts in Maryland first became aware of the attempt to join the two sets of defendants in 2003, in Gress v. ACandS, 150 Md.App. 369, 820 A.2d 616 (2003) (Gress), reversed sub nom Brown v. Gress, 378 Md. 667, 838 A.2d 362 (2003) (Brown).

         In Gress/Brown, four plaintiffs, separately, had filed suit against eleven asbestos defendants based on the plaintiffs' occupational exposure to asbestos products. Those actions, which were consolidated for trial, were filed between 1991 and 1997. In 2001, the plaintiffs filed an amended complaint adding six tobacco companies as defendants. The gravamen of their action against the two sets of defendants, as it is here, was that, "because the combination of asbestos exposure and cigarette smoking acted in 'synergy' and multiplied the risk of developing lung cancer, cigarette smokers who were exposed to asbestos had a much greater chance of developing lung cancer and other disease than non-smokers who were exposed solely to asbestos." Gress, 150 Md.App. at 375, 820 A.2d at 619.

         The tobacco companies moved to dismiss or sever the claims against them, arguing that joinder was inappropriate. At the conclusion of the hearing, the court orally granted the motion, explaining that (1) the cases involve "two different kinds of products, two different methods of distribution, two different uses, " (2) the objective of the joinder Rule (Md. Rule 2-212) is to facilitate the attainment of a just, speedy, and inexpensive determination of all disputes between the parties, (3) joining asbestos defendants with tobacco companies would not accomplish those goals, (4) such joinder "will cause confusion to the jury because a unique set of practices and procedures had developed under the asbestos docket which would be, in fact, in this Court's view, prejudicial to the cigarette defendants" if they were, at that late date, joined in the action, and (5) the addition of the tobacco defendants would "disrupt the orderly procedures that the asbestos docket [then had] in place." Upon those findings, the court announced that it would "dismiss without prejudice with the right to refile."

         The appellate issues dealt with how the trial court actually implemented its decision to deny joinder. Immediately following the hearing on March 22, the court entered an order granting the motion "to dismiss or sever." Five days later, March 27, the plaintiffs noted an appeal from that order. That same day, the tobacco companies requested an amendment to the March 22 order to clarify that the asbestos defendants had not been dismissed. On March 28 and April 17, the court entered amended orders in three of the four cases dismissing without prejudice only the claims against the tobacco companies. No amended order was entered in the fourth case. Gress, 150 Md.App. at 376, n.3, 820 A.2d at 620, n.3. The plaintiffs moved to strike the March 28 and April 17 orders or, in the alternative, to enter judgment under Md. Rule 2-602(b)(1), which the court denied.

         The plaintiffs' appeal was met with a motion to dismiss for want of a final judgment. The Court of Special Appeals agreed that there was no final judgment and that the trial court did not abuse its discretion in declining to enter judgment under Rule 2-602, but it concluded that it had the authority to enter such a judgment on its own initiative, and it did so. It then proceeded to determine that joinder of the tobacco companies was proper, believing that the cases against the two sets of defendants involved common questions of law and fact, including whether there is scientific merit in the plaintiffs' synergy theory and what the defendants knew or should have known about the synergistic effect of cigarette smoking and exposure to asbestos. This Court granted certiorari and concluded that the Court of Special Appeals had no authority to enter judgment under Rule 2-602 when the trial court had expressly declined to do so. We reversed the intermediate appellate court's judgment and remanded with instructions to dismiss the appeal.

         The appealability issue returned to us in Silbersack v. ACandS, 402 Md. 673, 938 A.2d 855 (2008). That too involved an attempt to join tobacco and asbestos companies in a lung cancer case under a synergy theory of liability. As in Gress and here, the action, filed in the Circuit Court for Baltimore City, initially was against just the asbestos companies, but five years later, in December 2001, an amended complaint was filed that joined a number of tobacco companies, which objected to the joinder and moved to dismiss the claims against them. The Circuit Court granted the motion, for the same reasons it had expressed in Gress. Presumably accepting that there was no final judgment, the plaintiffs, in lieu of an appeal, sought a writ of mandamus from this Court directing the trial judge to vacate the dismissal orders or, in the alternative, directing her to enter final judgment under Rule 2-602. We denied the petition. Allen v. The Honorable M. Brooke Murdock, Misc. No. 11, Sept. Term 2002.

         The case then took another turn. In July 2005 – eight years after the action was filed – the case was consolidated with ten other lung cancer asbestos cases for trial. Unfortunately, nine of the defendants had filed bankruptcy and the cases against them were automatically stayed pursuant to 11 U.S.C. §362. Meanwhile, the plaintiffs had dismissed their claims against the remaining defendants. They then moved (1) to reinstate their claims against the tobacco companies, (2) to enter final judgment under Rule 2-602 and (3) to "administratively dismiss" the asbestos defendants in bankruptcy subject to reinstatement upon their emergence from bankruptcy, all of which were denied.

         The plaintiffs then appealed those denials, claiming that they were the equivalent of a final judgment. We disagreed with that assertion and dismissed the appeal. We confessed our ignorance of any procedure of administrative dismissal subject to reinstatement but we did observe that "if the dismissal is for the purpose of allowing a final judgment to be entered, there would be no case left to which the dismissed defendants could be rejoined or reinstated." Id. at 687, 938 A.2d at 863. See also Brown v. ...


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