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Wallace & Gale Asbestos Settlement Trust v. Busch

Court of Appeals of Maryland

July 3, 2019


          Argued: March 4, 2019

          Circuit Court for Baltimore City Case No. 24-X-16-000151

          Barbera, C.J., [*] Greene McDonald Watts Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.


          Harrell, J.

         "'Nearly' only counts in horseshoes and hand-grenades." Neil Gaiman, The Graveyard Book (2008).

         "'Almost' only really counts in horseshoes and hand-grenades." Green Day, Horseshoes and Handgrenades, on its album, 21st Century Breakdown, (Reprise Records 2009).

         We perceive that the flagship question in this case asks essentially to what degree, if at all, the aphorism expressed in Neil Gaiman's and Green Day's works might apply to the evidence offered of the defendant's liability in this asbestos mesothelioma civil litigation. At risk here is a $14, 568, 628.33 jury verdict, reduced to $7, 284, 264.17, returned in favor of Respondents William Edward Busch, Jr. ("Mr. Busch") and his wife, Kathleen ("Mrs. Busch") (collectively "the Buschs"), after a 14-day trial in the Circuit Court for Baltimore City. The jury found that Mr. Busch contracted mesothelioma as a result of his exposure to asbestos-containing materials installed by insulation contractor Wallace & Gale, Co. ("W&G")[1] during the construction of Loch Raven High School ("LRHS") in Baltimore County. Mr. Busch worked for Honeywell Corporation during the relevant time period, performing non-insulation work in the boiler room of LRHS, the area where the asbestos exposure occurred. Although Mr. Busch did not himself install asbestos-containing products, nor was any direct evidence produced linking W&G to any asbestos-containing products in the construction at LRHS (let alone in the boiler room), the jury was convinced, apparently by circumstantial evidence (and inferences drawn therefrom), that W&G was responsible more likely than not for installing the asbestos-containing insulation in the boiler room.

         The Court of Special Appeals affirmed the judgment in a reported opinion.[2]WGAST petitioned this Court for a writ of certiorari. We granted the petition and issued our writ. Wallace & Gale Asbestos Settlement Tr. v. Busch, 462 Md. 84, 198 A.3d 219 (2018).


         WGAST presents two questions for consideration. We have rephrased the questions thusly:[3]

I. Is it sufficient to rely on circumstantial evidence to infer that a defendant, whose presence was substantial in the general insulation of plumbing, heating, and ventilation surfaces during construction in a high school building, was responsible for the asbestos exposure and resulting illness of a plaintiff who worked only in a specific room of the building and where there was no direct evidence linking that defendant to the asbestos insulation installed in that room?
II. Is it permissible to inform a jury that a co-defendant to the asbestos lawsuit had been dismissed when a remaining defendant "opens the door" by introducing evidence relating to the earlier presence of that now-dismissed party?

         For reasons we shall explain, we answer both questions in the affirmative and affirm the Court of Special Appeals' judgment.


         Mr. Busch

         At the time of trial, Mr. Busch was a 70-year-old retiree. He began his career as an apprentice steamfitter[4] in 1967 at a Baltimore construction company, Lloyd E. Mitchell ("Mitchell"). During his four years at Mitchell, he worked on at least four building projects in Baltimore and its surrounding area, alleging in the present litigation asbestos exposure at all four sites.[5]

         Mr. Busch left Mitchell in 1971 for Honeywell Corporation ("Honeywell"). He worked at Honeywell for 30 years, installing primarily thermostats, sensors, relay stations, fan control systems, and automatic temperature-control devices. Mr. Busch's work in this regard was typically one of the final phases of the construction process - when he performed work for Honeywell on construction sites, "most of the job sites were pretty much completed and finished . . . [he was] the last one in there for the thermostats and controls." He testified at trial in the present case that he was exposed to asbestos at various job sites, including LRHS.[6] Mr. Busch left Honeywell in 2001 for a local construction firm, where he assumed the role of project manager and department head. He retired in 2016 when he was diagnosed with mesothelioma.

         Loch Raven High School

         The general worksite at issue in this case was LRHS. The specific worksite for Mr. Busch was its boiler room. Mr. Busch worked in the boiler room at LRHS for approximately three or four months during the winter of 1971 and into the early spring of 1972. The boiler room contained two fifteen-foot by twenty-foot boilers. The room measured forty-feet by forty-feet. Mr. Busch performed his usual work for Honeywell in close proximity to the boilers.

         Building specifications for LRHS called for magnesia blocks to be used to insulate the boilers. By weight, magnesia block contained up to 15% asbestos. According to testimony, workers would cut the magnesia block into smaller, but still large, blocks before placing them around the boilers. This cutting created a "snow storm" of asbestos dust, which was inhaled inevitably by those nearby, including Mr. Busch, even though he wore a respirator. The cement mixture used to cover the magnesia block insulation contained asbestos as well.

         Pre-Trial Discovery Responses and Depositions Received in Evidence

         Mr. Busch, in response to pre-trial defense interrogatory requests, identified McCormick Asbestos Company (McCormick) and Georgia-Pacific, LLC, as the responsible sources of products leading to his asbestos exposure at LRHS. He claimed that the asbestos-containing insulation products were "sold, supplied, and installed by McCormick[.]"[7] Additionally, he stated that he came in contact there with an "asbestos-containing joint compound manufactured, sold and supplied by Georgia-Pacific, LLC." Mr. Busch provided the names of two other Honeywell workers who had supposed personal knowledge of the asbestos exposure at LRHS - Richard Huettel ("Huettel") and Howard Sheppard ("Sheppard").

         In response to Mr. Busch's interrogatories, WGAST produced a trove of documents 48 days before trial.[8] The documents supported the existence of a contractual relationship between W&G and Poole & Kent Co. ("Poole").[9] Poole, as testified to later by Huettel in his deposition (which was received in evidence), was the mechanical contractor at LRHS. Poole's contractual obligations included employing plumbers and steamfitters to install the piping systems for the LRHS boilers. The inferred contract between Poole and W&G provided $145, 250.00 as the total consideration due to W&G for its work at LRHS.[10] The job, referred to as Job #5679, called for W&G to insulate the "plumbing, heating and ventilating surfaces" at LRHS. It is not crystal clear what constituted the "surfaces" or where most were located, but other documents indicated specifically that W&G, among other responsibilities, insulated "fire lines" in the boiler room at LRHS during the time Busch worked also in the boiler room.[11]

         Partial billing statements relating to Job #5679 were produced by WGAST. The first was from W&G to Poole, dated 16 February 1972. The statement indicated that W&G had "insulated various plumbing, heating and ventilating surfaces" at LRHS. The second, again relating to Job #5679, was sent on 15 May 1972. These billing statements totaled less than $20, 000.00, but stated that the total value of Job #5679 was $145, 250.00.

         Timesheets for W&G insulators were produced regarding Job #5679. The timesheets revealed that their work at LRHS lasted from February to June 1972, and that the workers spent over 4, 500 person-hours at LHRS during that period.

         Additional invoices, order forms, and shipment records produced by WGAST connected further W&G to Job #5679 in LRHS, but did not refer specifically to W&G with regard to asbestos-containing products used or installed at LRHS. A "partial billing" for Job #5679 sent by W&G to A.C. MacDonald Inc. was the only document connecting directly W&G to work in the boiler room, as opposed to elsewhere at LRHS. This "partial billing" was for insulation work performed on fire lines in the boiler room. Construction specifications for the fire lines in LRHS provided that fiberglass or "foamglass" shall be used as insulation for those lines. Neither fiberglass nor foamglass contained asbestos.

         Trial & Direct Appeal

         Mr. Busch brought suit initially against seven defendants, alleging occupational exposure to asbestos-containing products resulting in his mesothelioma.[12] Three were dismissed prior to trial. Thus, by the time trial began, only four defendants remained.[13]

         At trial, Mr. Busch testified that he did not remember who installed, supplied, or manufactured the block insulation and cement used to insulate the boilers and pipes in the boiler room.[14] He produced competent evidence, however, if believed by the factfinder, demonstrating that the dust created by the sawing of the insulation blocks contributed to his contracting mesothelioma.

         WGAST acknowledged that W&G insulators performed work at LRHS, but claimed that no evidence had been produced by Mr. Busch linking W&G to the asbestos-containing insulation used in the boiler room at LRHS. According to WGAST, the evidence placed W&G workers and products in the boiler room only for the limited purpose of insulating the fire lines, which insulation contained no asbestos.

         Huettel's deposition, read into evidence by WGAST, revealed that he was a friend and co-worker of Mr. Busch. Huettel and Mr. Busch worked together closely at various jobsites, including LRHS, over an eight-year span. Consistent with Mr. Busch's interrogatory answers (if not his trial testimony), Huettel's deposition testimony indicated that McCormick installed the asbestos-containing block insulation and cement on the boilers at LRHS.

         WGAST moved successfully into evidence also the deposition testimony of Sheppard. Sheppard was an electrician who performed work at LRHS in 1970-71, before Busch worked at LRHS. Sheppard did not know Busch personally and testified only as a "general product identification witness."[15] In a vein similar to Huettel's testimony, Sheppard claimed that he saw McCormick workers apply asbestos-containing materials to insulate the pipes and boilers in the boiler room. Neither Huettel nor Sheppard identified W&G as responsible for this work or connected in any way W&G to the asbestos-containing insulation in the boiler room at LRHS.

         As noted earlier, at the close of all evidence, only WGAST and Georgia-Pacific remained as defendants. The jury returned a verdict in favor of the Buschs against both defendants. The jury awarded Mr. Busch $318, 528.33 for past medical expenses, $1, 250, 000.00 for past and future economic loss, and $10, 000, 000.00 for non-economic losses. Mrs. Busch was awarded $3, 000, 000.00 for loss of consortium. The total verdict was $14, 568, 528.33. The circuit court reduced the verdict to $7, 284, 264.17 because of the effect of cross-claims against absent defendants. WGAST moved subsequently for JNOV, a new trial, and, in the alternative, remittitur. The circuit court denied all motions. WGAST appealed timely to the Court of Special Appeals.[16]

         The Court of Special Appeals affirmed. The intermediate appellate court held first that sufficient evidence existed for the jury to infer that it was likely or probable that W&G performed the insulation work (with asbestos-containing products) in the boiler room at LRHS during the time Mr. Busch worked in the boiler room. The intermediate appellate court held also, of relevance here, that the trial judge did not abuse her discretion in allowing the Buschs to inform the jury that McCormick had been dismissed as a defendant.


         WGAST contends that Mr. Busch did not present evidence sufficient to prove directly or by reasonable inference that he was exposed to asbestos-containing products manufactured, sold, or installed by W&G. Because of this deficiency, the issue of its potential liability was not proper to submit to the jury.


         We review a "trial court's decision to [] deny judgment or JNOV to determine whether it was legally correct[.]" Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011) (internal citations and quotations omitted). We analyze the trial court's decision "viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party[.]" Id. The denial of a JNOV will be upheld if there is "any evidence adduced, however slight … from which reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented." Exxon Mobil Corp. v. Albright, 433 Md. 303, 333, 71 A.3d 30, 48, on reconsideration in part, 433 Md. 502, 71 A.3d 150 (2013).


         In an "asbestos case," a plaintiff must demonstrate first that his or her exposure to an asbestos-containing product was a substantial causative factor in the development of mesothelioma or other injury. Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 210, 604 A.2d 445, 460 (1992). We adopted in Balbos a "frequency, proximity, and regularity" standard, borrowed from the Fourth Circuit's decision in Lohrmann v. Pittsburgh CorningCorp., 782 F.2d 1156, 1160 (4th Cir. 1986), by which to assess causation evidence in asbestos cases. See Balbos 326 Md. at 210, 604 A.2d at 460. Balbos involved consolidated tort actions brought by two former shipyard workers, both of whom inhaled asbestos fibers at the shipyards where they worked. Id. at 186, 604 A.2d at 448. Both men succumbed to mesothelioma. At issue was the causal relationship between the co-defendants' asbestos products and the plaintiffs' exposure to it. Similar to the case at bar, both of the Balbos plaintiffs' direct ...

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