Stidham v. R.J. Reynolds Tobacco Co.

224 Md.App. 459

121 A.3d 156

Douglas STIDHAM, etc. et al.

v.R.J. REYNOLDS TOBACCO CO., INC., et al.

No. 178, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Aug. 27, 2015.

R. Bruce McElhone & James S. Zavakos (Law Offices of Peter G. Angelos, PC, on the brief), Baltimore, MD, for Appellant.

R. Dal Burton (Jonathan A. Fligg, Womble, Carlyle, Sandridge & Rice, LLP, Atlanta, GA) (John Parker Sweeney, T. Sky Woodward, Kevin B. Mattingly, Bradley, Arant, Bout, Cummings, LLP, Washington, D.C.), all on the brief, for Appellee.

Panel: KEHOE, ARTHUR, and JAMES A. KENNY, III (Retired, Specially Assigned), JJ.

Opinion

ARTHUR, J.

In Gress v. ACandS, Inc., 150 Md.App. 369, 387–89, 820 A.2d 616 (2003), this Court held that a circuit court erred in refusing to permit the joinder of wrongful death claims against asbestos defendants with wrongful death claims against tobacco defendants, where the plaintiffs alleged that their decedent's death had resulted from the synergistic effect of exposure to asbestos fibers and tobacco smoke.

The Gress Court recognized that the circuit court had not entered a final, appealable judgment in that case, because it had not adjudicated the claims against the asbestos defendants and had declined to certify its ruling as final under Md. Rule 2–602(b). We reached the merits nonetheless, because we reasoned that we had the authority to enter a final judgment on our own initiative under Md. Rule 8–602(e)(1)(C).

The Court of Appeals reversed our decision in Gress on the procedural ground that an appellate court may not enter a final judgment under Rule 8–602(e) when the circuit court has been asked to enter a final judgment under Rule 2–602(b), but has properly exercised its discretion to decline to do so. Brown & Williamson Tobacco Corp. v. Gress, 378 Md. 667, 682, 838 A.2d 362 (2003). The Court of Appeals did not address whether the circuit court had erred in dismissing the claims against the tobacco defendants.

The substantive issue, of whether a circuit court may refuse to permit the joinder of wrongful death claims against asbestos defendants with wrongful death claims against tobacco defendants, is now before us again. In this case, the plaintiffs, whose claims against the tobacco defendants were dismissed earlier in the litigation, have acquired a final judgment by resolving all pending claims against the asbestos defendants. Ironically, however, the acquisition of the final judgment has rendered the case moot, because it is impossible to join the cigarette manufacturers with the asbestos defendants now that the plaintiffs have disposed of all claims against the latter class of defendants.

Even though we must dismiss the appeal on the ground that it is moot, the appeal “ ‘presents a recurring matter of public concern which, unless decided, will continue to evade review[.]’ ” La Valle v. La Valle, 432 Md. 343, 352, 69 A.3d 1 (2013) (quoting Office of the Pub. Defender v. State, 413 Md. 411, 423, 993 A.2d 55 (2010) ). We feel constrained to address the merits for the guidance of litigants and courts when confronted with a similar issue, and to reaffirm the substantive reasoning of the decision in Gress.

Factual and Procedural History

On January 24, 2008, Jack F. Stidham, a retired electrician, filed a complaint in the Circuit Court for Baltimore City against 38 defendants, most of which had been asbestos manufacturers or distributors. Mr. Stidham contended that he had developed lung cancer because of his exposure to asbestos. He pursued legal theories of strict liability, breach of warranty, and negligence. The circuit court placed his case on the asbestos docket.

Mr. Stidham died on December 3, 2008. Shortly thereafter, in April 2009, Mr. Stidham's son filed an amended complaint, adding himself, his siblings, and his mother as parties to the action. The amended complaint also added several new counts.

On May 1, 2009, the Stidhams filed a second amended complaint. In that complaint, the Stidhams added several tobacco companies as defendants and asserted claims against the tobacco and asbestos defendants, both individually and jointly. The second amended complaint alleged that the tobacco and asbestos defendants failed to warn Mr. Stidham that concurrent exposure to asbestos and tobacco products increased the dangers that he faced, a concept known as the “synergy” theory. See Gress, 150 Md.App. at 375, 820 A.2d 616 (“[a]ccording to appellants, 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”); see also Carter v. Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 356–57, 96 A.3d 147 (2014) (“while there are many variables that go into the causal effects of tobacco and asbestos exposure, there is evidence that the effect is multiplicative in nature”).

The Stidhams' amended complaint describes, in great detail, the synergistic effect of concurrent exposure to asbestos and tobacco. Although exposure to each of these carcinogens presents a risk of lung cancer, the Stidhams allege that concurrent exposure exponentially increases the risk. The Stidhams specifically allege that the tobacco defendants had internal, corporate knowledge about the increased risk posed by concurrent exposure to cigarettes and asbestos.

On June 1, 2009, the tobacco defendants moved to dismiss the second amended complaint, arguing that the Stidhams could not properly join the claims against them with the claims against the asbestos defendants. The circuit court granted the motion to dismiss. Though the court did not discuss its reasoning on the record, the parties agree that the court reiterated its 2002 ruling in Van Daniker v. Owens–Corning Fiberglass Corp., Case No. 24–X–97–139541, a case in which the circuit court granted a similar motion to dismiss on grounds of improper joinder. The Van Daniker ruling is the ruling that this Court reviewed in Gress.

In October 2010, the Stidhams moved to “reinstate” the tobacco defendants. Later, in January 2011, the Stidhams moved to voluntarily dismiss the Wallace and Gale Asbestos Settlement Trust, which they thought was the last asbestos defendant against which they had pending claims. On October 14, 2011, the circuit court issued orders denying the motion for reinstatement and dismissing the Wallace and Gale trust, with prejudice.

Believing that they had a final judgment, the Stidhams appealed. Upon a review of the record, however, this Court identified several pending and unadjudicated claims that the Stidhams had asserted, as well as several pending and unadjudicated cross-claims and third-party claims. This Court dismissed the appeal because of the absence of an appealable, final judgment. Stidham v. Brown & Williamson Holdings, Inc., No. 1922, Sept. Term 2011 (filed Mar. 11, 2013).

The case returned to the circuit court, which ordered all parties to show cause why any claims should remain open for further adjudication. After none of the parties responded, the circuit court filed an order entering a final judgment as to all parties on April 2, 2014. The order recited that the court had dismissed the claims against the tobacco defendants “without prejudice with the right to refile.”

The Stidhams took another timely appeal.

Questions Presented

The Stidhams present two questions, which we have rephrased and consolidated as follows: Did the circuit court err or abuse its discretion in granting the tobacco defendants' motion to dismiss on grounds of misjoinder?¹

The tobacco defendants, on the other hand, have moved to dismiss the appeal. They contend that the circuit court has yet to enter a final judgment, because it gave the Stidhams the “right to refile.” They also contend that the case is moot, because it is no longer possible to join the tobacco defendants with the asbestos defendants (the latter having been dismissed).

Although we conclude that the circuit court has entered a final, appealable judgment, we must dismiss the appeal as moot, because we can afford no effective remedy for the dismissal of the tobacco defendants now that all of the asbestos defendants have been dismissed as well. Nonetheless, because the case involves matters of public concern that are capable of repetition, but are difficult if not impossible to review in accordance with the constraints of the final judgment rule, we shall address the merits.

We conclude that the circuit court should not have dismissed the tobacco defendants without first considering possible procedural safeguards under Rule 2–212(b) to prevent embarrassment, delay, expense, or prejudice.

The Motion to Dismiss

Before discussing the questions presented by the Stidhams in this appeal, we address the tobacco defendants' motions to dismiss.

A. Final Judgment

In general, under Maryland law, an appellate court has jurisdiction over an appeal only if the trial court has entered a final judgment. See Md. Code (1974, 2014 Repl. Vol.), § 12–301 of the Courts and Judicial Proceedings Article ; Schuele v. Case Handyman & Remodeling Servs., 412 Md. 555, 565, 989 A.2d 210 (2010) ; Addison v. Lochearn Nursing Home, 411 Md. 251, 261, 983 A.2d 138 (2009). “A final judgment is an order that ‘has the effect of putting [the plaintiff] out of court’ ” (Spivery–Jones v. Receivership Estate of Trans Healthcare, Inc., 438 Md. 330, 353–54, 91 A.3d 1172 (2014) (quoting American Bank Holdings, Inc. v. Kavanagh, 436 Md. 457, 463, 82 A.3d 867 (2013) )) and of denying the plaintiff “the means of further prosecuting or defending rights and interests in the subject matter of the proceeding.” Kavanagh, 436 Md. at 463, 82 A.3d 867 (citation omitted).

A judgment may be final and appealable even if the trial court does not adjudicate the merits of the plaintiff's claims. See, e.g., Brewster v. Woodhaven Bldg. & Dev., Inc., 360...