Circuit Court for Baltimore City Case No. 24-X-16-000151
Berger, Beachley, JJ.
a 14-day trial, a jury returned a verdict in the Circuit
Court for Baltimore City in favor of William Edward Busch,
Jr. ("Busch"), appellee, and his wife
Kathleen. The jury found that Busch suffered from
mesothelioma caused by exposure to asbestos-containing
insulation products installed by Wallace & Gale Co.
("W&G") during the construction of Loch Raven
High School ("LRHS"). Busch worked as a steamfitter
during the construction of LRHS. W&G was the predecessor
to Wallace and Gale Asbestos Settlement Trust
appeal, WGAST presents two questions for our consideration, which
we have rephrased as five questions as follows:
I. Whether there was legally sufficient evidence to support a
rational inference of causation.
II. Whether the circuit court erred and/or abused its
discretion by permitting Busch to introduce evidence relating
to the dismissal of McCormick Asbestos Company from the
III. Whether the circuit court erred and/or abused its
discretion by permitting Busch to introduce evidence of
W&G's insulation work at LRHS during a broader period
of time than when Busch actually worked on the site.
IV. Whether the circuit court erred and/or abused its
discretion by declining to propound WGAST's requested
jury instruction on fiber drift.
V. Whether the circuit court erred and/or abused its
discretion in association with its instructions about
interrogatory responses and statements in the Complaints. For
the reasons explained herein, we shall affirm.
is a 69-year-old retired steamfitter. Busch began working as
an apprentice steamfitter in 1967. Throughout his career,
Busch worked for Lloyd E. Mitchell, Honeywell Corporation,
and J.F. Fischer. At J.F. Fischer, Busch advanced to the
position of project manager and department head.
worked on many construction projects throughout his career,
including the construction of Mercy Hospital, a building at
the Edgewood Arsenal, the Mercantile Bank & Trust
Building in downtown Baltimore, the BlueCross/BlueShield
building in Towson, LRHS, the Frederick Towne Mall, the
USF&G Building (now the Transamerica Building) in
downtown Baltimore, Old Mill High School in Anne Arundel
County, and residential projects, among others. As a
steamfitter, Busch installed HVAC equipment.
was employed by Honeywell for thirty years, including during
the construction of LRHS. Busch would install thermostats,
sensors, relay stations, fan control systems, and automatic
temperature control devices. The work performed by Busch
generally occurred at the end of construction, when
"most of the job sites were pretty much completed and
finished." Busch alleged that he was exposed to asbestos
at various job sites over the course of his
was a local insulation contractor that sold and installed
insulation products, some but not all of which contained
asbestos. For example, W&G sold and installed fiberglass
and foamglass products, which did not contain asbestos.
W&G petitioned for Chapter 11 bankruptcy protection in
1984. In 2002, WGAST was established pursuant to a
reorganization plan and was approved by the United States
Bankruptcy Court for the District of Maryland.
Asbestos Company ("McCormick"), since renamed MCIC,
Inc., was another local insulation contractor and a
competitor of W&G. MCIC was a party to the lawsuit below,
but was dismissed by the plaintiffs one month before trial.
specific construction project at which Busch asserts he was
exposed to asbestos-containing products installed by W&G
is the LRHS project. While employed by Honeywell, Busch
worked on the construction of LRHS for three to four months
in the late winter and early spring of 1972. Busch worked
mostly in the school's boiler room, near two large
fifteen-foot by twenty-foot boilers. Busch testified that
during the time period that he was working in the boiler
room, he was exposed to a "snow storm" of visible
dust created when blocks of insulation were cut, stacked
around the boilers, and covered with cement.
building specifications for LRHS required that magnesia
blocks be used to insulate the boilers. Busch presented
evidence at trial that, in 1972, magnesia block contained up
to 15% asbestos by weight. Abatement records from the
Baltimore County Public Schools were introduced to show that
the block used to insulate boilers at LRHS contained
asbestos. Additional evidence was presented to establish that
the cement used to cover the magnesia block also contained
to trial, in response to interrogatories, Busch identified
McCormick and Georgia-Pacific, LLC as the source of his
asbestos exposure at LRHS. Specifically, Busch averred that
during the construction of LRHS, he "worked with and
around asbestos-containing thermal insulation products sold,
supplied and installed by McCormick Asbestos Company (MCIC)
and asbestos-containing joint compound manufactured, sold and
supplied by Georgia-Pacific LLC." Busch also identified
two witnesses with personal knowledge of his exposure in his
interrogatory responses: Richard Huettel and Howard Sheppard.
At his deposition, Busch testified that he did not know the
employer of the insulators around whom he had worked at LRHS.
trial, Busch testified that he did not have any recollection
of who employed the insulators during the LRHS construction
project. Huettel testified at trial that McCormick was the
company responsible for insulation of the boilers at LRHS.
Sheppard's 2007 deposition was presented as testimony at
trial. Sheppard also testified that McCormick employed the
pipe insulators at LRHS. Neither Huettel nor Sheppard
identified W&G as the party responsible for insulation in
the boiler room at LRHS.
evidence was presented at trial to demonstrate that W&G
performed insulation work at LRHS. A partial billing
statement was sent by W&G to mechanical contractor Poole
& Kent Co. ("Poole") for "Job #5679"
on February 16, 1972. The document provided that W&G had
"insulated various plumbing, heating and ventilating
surfaces" at LRHS in connection with Job #5679. A second
"partial billing" was sent on May 15, 1972 for work
on the same project. The partial billings reflect that the
value of Job #5679 was $145, 250.00, but the invoices sent by
W&G to Poole that were entered into evidence at trial
totaled less than $20, 000.00.
sheets for individual insulators employed by W&G for work
performed at LRHS in association with Job #5679 were also
admitted into evidence. The time sheets establish that
W&G insulators worked at LRHS during the February - June
1972 time period. The time sheets indicate that W&G
insulators worked on Job #5679 at LRHS for over 4, 500
man-hours during that time period.
acknowledged at trial that W&G insulators performed work
during the construction of LRHS, but contended that no
evidence had been presented to show that W&G insulators
worked with asbestos-containing products at LRHS. Invoices,
order forms, and delivery ticket shipment records were
introduced into evidence referencing "Foam Glass"
pipe covering material, "FG PC" [fiberglass pipe
covering material], "Powerhouse cement," and
"Glass Board FSK Facing." It was not disputed that
"FG" is an abbreviation for fiberglass and that
"Powerhouse cement" does not contain asbestos.
construction specifications for LRHS required that piping be
"insulated with one (1") thickness Fiberglass
Standard PF sectional pipe covering." "Condensate
return piping" was required to "be insulated with
3/4" thick low pressure Fiberglass with dual temperature
jacket." Chilled water supply was to be insulated with
"flexible foam plastic insulation." With respect to
equipment insulation, the construction specifications
provided that "[a]ll heating-ventilating and heating-air
conditioning units shall be insulated with 1-1/2"
only documentary evidence introduced directly connecting
W&G to the boiler room was a "partial billing"
for Job #5679 sent by W&G on February 16, 1972 to A.C.
MacDonald, Inc., for work performed "to insulate fire
lines in boiler room." The construction specifications
for LRHS provided that "foamglass" insulation would
be used for the insulation of fire lines. Neither fiberglass
nor foamglass contain asbestos or cause mesothelioma.
construction specifications required asbestos-containing
insulation of the boilers themselves, providing that
"[t]he boilers shall be insulated with 1-1/2"
thickness Magnesia blocks, secured with hexagonal wire mesh
and finished with two coats of asbestos cement troweled
smooth." Indeed, Busch testified that he was exposed to
dust when the block insulation and cement were installed
during the insulation of the two boilers. No direct evidence
was presented specifically connecting W&G to the supply
and/or installation of magnesia block insulation. Busch
introduced evidence at trial to demonstrate that the sawing
of magnesia insulation blocks in the boiler room was a
contributing factor to Busch's mesothelioma.
Busch brought suit against seven defendants seeking damages
for his occupational exposure to asbestos-containing products
and subsequent development of mesothelioma. The case
proceeded to trial against four defendants involving eight
different worksites. By the close of the plaintiffs'
case, only three defendants remained, and only two defendants
remained by the close of evidence. The circuit court denied
WGAST's motion for judgment at the end of the
plaintiffs' case and renewed motion for judgment at the
close of evidence.
jury returned a verdict in favor of the plaintiffs against
both defendants, WGAST and Georgia-Pacific. The jury found in
the defendants' favor with respect to their cross-claims
against two former defendants. The jury awarded the
plaintiffs a total of $14, 568, 528.33 in damages,
which was subsequently reduced to $7, 284, 264.17 by the
circuit court due to the cross-claims against the absent
defendants. WGAST moved for JNOV, a new trial, and, in the
alternative, remittitur. The circuit court denied WGAST's
motions. WGAST noted a timely appeal. Georgia-Pacific noted
an appeal as well, but subsequently settled with the
facts shall be discussed as necessitated by our discussion of
the issues on appeal.
first argues that the circuit court erred by denying its
motion for judgment on the basis that Busch failed to present
legally sufficient evidence to support a rational inference
of causation. We review a trial court's decision to grant
or deny a motion for judgment applying the de novo
standard of review. DeMuth v. Strong, 205 Md.App.
521, 547 (2012). "In the trial of a civil action, if,
from the evidence adduced that is most favorable to the
plaintiff, a reasonable finder of fact could find the
essential elements of the cause of action by a preponderance
standard, the issue is for the jury to decide, and a motion
for judgment should not be granted." Id.
asbestos case, a plaintiff seeking recovery must show that
his or her exposure to the asbestos-containing product was a
substantial factor in the development of his injury. See
Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179,
210 (1992). Busch, who worked in close proximity to
insulation contractors but did not himself perform insulation
work, is what the Court of Appeals has "termed a
'bystander,' in that he did not work directly with
the asbestos products but was in the vicinity of where such
products were used." Owens-Corning Fiberglas Corp.
v. Garrett, 343 Md. 500, 526 (1996). A plaintiff seeking
damages for exposure to asbestos as a bystander "must
prove that [the appellees'] products were a substantial
causative factor in his illness and ultimate death."
Id. The Court of Appeals set forth the
"frequency, proximity, and regularity" test for
substantial factor causation in Balbos,
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. The finding involves the interrelationship between
the use of a defendant's product at the workplace and the
activities of the plaintiff at the workplace. This requires
an understanding of the physical characteristics of the
workplace and of the relationship between the activities of
the direct users of the product and the bystander plaintiff.
Within that context, the factors to be evaluated include
the nature of the product, the frequency of its use, the
proximity, in distance and in time, of a plaintiff to the use
of a product, and the regularity of the exposure of that
plaintiff to the use of that product.
326 Md. at 210-11 (citations omitted) (emphasis added).
Balbos requires that the plaintiff prove (1) that
the plaintiff was actually exposed to the defendant's
asbestos-containing product, and (2) that the exposure was
regular, proximate, and frequent. Id. A plaintiff is
"required to present evidence of exposure to a
'specific product [made or manufactured by the
defendants] on a regular basis, over some extended period of
time, in proximity to where the [plaintiff] actually