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)
only counts in horseshoes and hand-grenades." Neil
Gaiman, The Graveyard Book (2008).
only really counts in horseshoes and hand-grenades."
Green Day, Horseshoes and Handgrenades, on its
album, 21st Century Breakdown, (Reprise Records 2009).
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") 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.
Court of Special Appeals affirmed the judgment in a reported
opinion.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).
presents two questions for consideration. We have rephrased
the questions thusly:
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?
reasons we shall explain, we answer both questions in the
affirmative and affirm the Court of Special Appeals'
AND PROCEDURAL BACKGROUND
time of trial, Mr. Busch was a 70-year-old retiree. He began
his career as an apprentice steamfitter 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.
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. 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.
Raven High School
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.
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.
Discovery Responses and Depositions Received in
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[.]" 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
response to Mr. Busch's interrogatories, WGAST produced a
trove of documents 48 days before trial. The documents
supported the existence of a contractual relationship between
W&G and Poole & Kent Co.
("Poole"). 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. 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.
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.
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.
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
& Direct Appeal
Busch brought suit initially against seven defendants,
alleging occupational exposure to asbestos-containing
products resulting in his mesothelioma. Three were
dismissed prior to trial. Thus, by the time trial began, only
four defendants remained.
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. 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.
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.
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.
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." 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.
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
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.
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
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
"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 ...