Crane v. Puller

899 A.2d 879

169 Md. App. 1

JOHN CRANE, INC., et al. v. David PULLER, Individually, etc., et al.

No. 1772, September Term, 2004.

Court of Special Appeals of Maryland.

May 31, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michelle D. Siri (Robert T. Connor, Thomas P. Bermier, Segal, McCambridge, Singer & Mahoney, Ltd., on the brief), Baltimore; Michael A. Pollard (Baker & McKenzie, on the brief), Chicago, IL; (Deborah L. Robinson, Peter A. Woolson, Bassel Bakhos, Robinson Woolson, P.A., on the brief), Baltimore, for Appellants.

Edward J. Lilly (Scott D. Shellenberger, Andrew M. Cantor, on the brief), Baltimore, for Appellees.

Panel: SALMON, DEBORAH S. EYLER, and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned).

As is almost inevitable from the very nature of asbestos-related litigation, this is an unwieldy appeal. We might as readily be dealing with separate appeals from separate trials involving separate and non-overlapping sets of litigants. The respective defendants have filed separate appellant's briefs. The respective sets of plaintiffs have filed separate appellee's briefs. By way of our own internal organization, we will proceed as if we were considering distinct and essentially unrelated appeals. Only when we come to three verbatim issues raised by each of the two sets of plaintiffs in identical cross-appeals will we consolidate our discussion and disposition.

The two original plaintiffs, both now deceased mesothelioma victims represented by surviving family members and personal representatives, were 1) Milton Cichy (Cichy) and 2) Reginald Puller (Puller). Both of their claims were heard, in a consolidated trial, by a Baltimore City jury, presided over by Judge Allen L. Schwait, that ran from April 15, 2004, through May 5, 2004.

The Cichy Case

One of the cases was brought by Milton Cichy and his wife, Jeanette Cichy, in 2002 against John Crane, Inc. (and against 18 other corporate defendants, not one of which remains as a party to this appeal) as part of the "Bethlehem Steel Cases Master Complaint." Cichy died on January 25, 2003. His claim is now being pursued by 1) Jeanette Cichy, individually and as Personal Representative of Cichy's Estate; 2) Jeanette Cichy, as surviving spouse of Cichy; and 3) Maria Cichy-Knight, surviving child of Cichy (collectively, "the Cichy plaintiffs"). On May 5, 2004, the jury returned verdicts in favor of the Cichy plaintiffs and against the appellant-defendant, John Crane, Inc., which, when adjusted by post-trial motions, amounted to $1,025,554.60.

Aggrieved at the award in favor of the Cichy plaintiffs, Crane raises the contentions

1. that the evidence was not legally sufficient to prove that exposure to John Crane's products was a substantial contributing factor to the development of Cichy's mesothelioma;

2. that Judge Schwait erroneously ruled that the Cichy plaintiffs were not barred from relitigating certain dispositive issues by the doctrine of collateral estoppel;

3. that Judge Schwait erroneously failed to apply Maryland's cap on non-economic damages to the survival claim; and

4. that Judge Schwait erroneously admitted into evidence testimony and exhibits in violation of the Maryland Rules of Evidence.

The Puller Case

The other case now before us was brought by Reginald Puller and his wife, Olivia Taylor Puller, against Garlock Sealing Technologies, LLC (and, by our best reckoning, 46 other corporate defendants, not one of which remains as a party to the appeal) as part of the "Other Asbestos Cases Master Complaint" on December 5, 2001. Puller died on November 9, 2002. His claim is now being pursued by Olivia Taylor Puller, surviving spouse, and David Puller, surviving child and Personal Representative of Puller's Estate (collectively, "the Puller plaintiffs"). On May 5, 2004, the jury returned verdicts in favor of the Puller plaintiffs and against the appellant-defendant, Garlock Sealing Technologies, LLC, which, when adjusted by post-trial motions, amounted to $2,551,763.68.

Aggrieved at the awards in favor of the Puller plaintiffs, Garlock raises the contentions

5. that the evidence was not legally sufficient to support the verdict in favor of the Puller plaintiffs for economic damages;

6. that Judge Schwait erroneously failed to dismiss the claim of Olivia Taylor Puller based on the fact that she was not legally married to Puller at the time he filed his claim;

7. that Judge Schwait erroneously denied Garlock's motion for judgment as to its cross-claims against the erstwhile defendants 1) Keeler Boiler Corp. and 2) Uniroyal, Inc.; and

8. that Judge Schwait erroneously failed to submit to the jury the question of the application of Maryland's statutory cap on non-economic damages.

The Cross-Appeals

Both the Cichy plaintiffs and the Puller plaintiffs have raised precisely the same three issues on cross-appeal. All three concern the applicability of the statutory cap. Both sets of plaintiffs contend

9. that the statutory cap was erroneously applied to the awards for non-economic damages for the loss of consortium;

10. that a single cap was erroneously applied to the verdicts for 1) loss of consortium and 2) wrongful death; and

11. that the statutory cap should not have been applied to the wrongful death claims.

I. Cichy v. John Crane, Inc.

Milton Cichy went to work for the Bethlehem Steel Corporation in Sparrow's Point in 1947. He worked there continuously for 42 years, retiring in 1989. He worked initially as an electrical lineman but shortly thereafter transferred to the pipe fitters shop. He continued to work in the pipe fitters department, first as a pipe fitter helper and then as a master pipe fitter, for most of his 42 years with Bethlehem Steel. In the course of that employment, he worked virtually everywhere in the plant.

1. Legal Sufficiency of the Evidence

Crane moved for a judgment in its favor on the issue of whether there was enough evidence to go to the jury to permit a finding that Cichy's exposure to Crane's products was a substantial contributory factor to the development of Cichy's mesothelioma. Judge Schwait denied the motion, and Crane now contends that that denial was erroneous.

In denying the post-trial motion in which Crane again raised the question of the legal sufficiency of the evidence on this issue, Judge Schwait ruled:

Defendants correctly state that in order to establish necessary proximate causation in an asbestos related case, plaintiffs must introduce evidence that the conduct of the Defendants was a substantial factor in bringing about the injuries. Eagle-Picher Indus. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992). In order to find substantial factor causation the fact finder must evaluate the nature of the product, the frequency of its use and the regularity of the plaintiffs exposure to that product over an extended period of time. The Court agrees with the plaintiffs that the totality of evidence was sufficient to meet the Balbos standard and the jury could have and did reach that conclusion.

(Emphasis supplied).

In affirming that ruling, we find dispositive the decision of this Court in Garlock, Inc. v. Gallagher, 149 Md.App. 189, 814 A.2d 1007, cert. denied, 374 Md. 359, 822 A.2d 1224 (2003). Both in terms of this precise issue and in terms of the cast of expert witnesses, what is now before us essentially replicates what was before us in Garlock v. Gallagher. In that case, the deceased mesothelioma victim had been a pipe fitter for Bethlehem Steel at Sparrows Point from 1946 until his retirement in 1979. In that case, the defendant, as here, was John Crane, Inc.

In a videotaped de bene esse deposition, taken on October 28, 2002 and played for the jury at trial, Cichy testified that he regularly worked on pipes that contained steam, acid, water, and hydraulic fluids. He regularly installed and replaced both gaskets and packing, which he identified as being manufactured by Crane. The gaskets were cut from sheets of gasket material and the process required the sheet to be beaten with a hammer. That action caused the release of dust in the area in which Cichy was breathing. Cichy sometimes used a gasket cutter, which also produced dust when the sheets were cut.

When a new gasket had to be installed, Cichy would have to scrape off the old gasket. He testified that the old gaskets were usually difficult to remove, particularly on steam lines, because they were baked on. When Cichy used a scraper to remove an old gasket, it invariably caused dust. Sometimes he used a wire brush which was powered by electricity or air pressure and that procedure created substantial dust. Cichy testified that while attempting to remove an old gasket, he was surrounded by floating dust. On almost every job that he worked on, there were gaskets that had to be removed. It was established that during the years of Cichy's employment, the gaskets used by Bethlehem Steel were manufactured by John Crane, Inc.; by Garlock; and by a few other unnamed manufacturers.

Cichy testified that he also regularly worked on valves, and that he used asbestos packing to keep the valves from leaking. When working on a valve, Cichy had to remove the packing, a process that created dust. Sometimes he blew out the valves with an air hose, which caused substantial dust. He also used the air hose to blow the asbestos dust off of his clothing. During the pertinent time of Cichy's employment, the packing used by Bethlehem Steel was manufactured by John Crane, Inc. and by Garlock. Cichy testified that on virtually every job on which he worked, he was required to remove and install John Crane, Inc. products.

In Garlock v. Gallagher, 149 Md.App. at 196-97, 814 A.2d 1007, the videotaped deposition of the deceased Richard Gallagher was essentially indistinguishable from Cichy's videotaped deposition in this case.

The labyrinth of pipes...