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IN THE COURT OF APPEALS OF MARYLAND No. 117 September Term, 1995 ___________________________________

OWENS-CORNING FIBERGLAS CORPORATION, ET AL. V. RALPH GARRETT, ET AL.

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Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker JJ. ___________________________________ Opinion by Karwacki, J. Chasanow, Bell and Raker, JJ., Concur and Dissent

___________________________________ Filed: The plaintiffs/appellees brought suit in the Circuit Court for Baltimore City against numerous manufacturers and distributors of asbestos products, alleging negligence and strict liability for failure to warn of the dangers of the asbestos products. the plaintiffs were men suffering from Two of

asbestos-related

mesothelioma, and another was the surviving wife of a man who had died of mesothelioma. Today we address the Their cases were consolidated for trial.1 numerous issues raised in appeals from

judgments entered following the consolidated trial, in which three of the direct defendants were found liable by the jury for varying amounts of compensatory damages and punitive damages were assessed against one of those defendants. We affirm all the liability

verdicts and the compensatory damages awarded by the jury, and reverse the punitive damages award for lack of sufficient clear and convincing evidence of actual malice.

I.

A.

Overview These suits were brought to recover damages resulting from

asbestos exposure experienced by Harvey Scruggs, Ralph Garrett, and
The trial grouping also included plaintiffs Norman Hannon, Jr., Saul Holland, and Edward Wojciechowski. Their cases are not before us.
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-2William Hohman. All three men worked with or near asbestos

products for several years in a variety of jobs, described in more detail in the following paragraphs and later in the opinion when relevant to our analysis. Mr. Scruggs and Mr. Garrett, still alive

when suit was instituted, have since died of malignant pleural mesothelioma, a rare form of cancer believed by medical experts to be caused almost exclusively by exposure to and inhalation of asbestos dust.2 Lenora Scruggs, as personal representative of Mr.

Scruggs' estate,3 and Louis Bittner, as personal representative of Mr. Garrett's estate, were substituted as plaintiffs at trial and

The membrane surrounding the lungs is called the viscera pleura, which is made up of mesothelial cells. Malignant pleural mesothelioma is the occurrence of malignant tumors in the pleura. Although mesotheliomas can be benign (rarely) and can occur in other membranes or linings made up of mesothelial cells, such as the pericardium surrounding the heart or the peritoneum surrounding the stomach, the simple term "mesothelioma" commonly denotes a malignant pleural tumor. See Stedman's Medical Dictionary, (26th ed. 1995); Dorland's Illustrated Medical Dictionary, (28th ed. 1994); The American Medical Association Encyclopedia of Medicine (Charles B. Clayman, M.D., ed., 1989). In 1964, after decades of theorizing and research on what causes mesothelioma, a seminal epidemiological study published in the Journal of the American Medical Association essentially confirmed that asbestos is a primary cause. The study of asbestos insulation workers showed that, after more than twenty years from the beginning of the study participants' exposure to asbestos, these workers "sustained grossly excessive mortality from lung cancer, mesothelioma, and gastrointestinal cancer . . . ." Barry I. Castleman, Asbestos: Medical and Legal Aspects, (1990), citing I. J. Selikoff, et al., "Asbestos Exposure and Neoplasia," 188 JAMA 22-26 (1964). An extensive overview of Dr. Selikoff's study appears in a recent opinion of this Court, ACandS, Inc. v. Godwin, 340 Md. 334, 363-64, 667 A.2d 116, 130 (1995). Asbestos is a fibrous mineral mined in Africa, Italy, and elsewhere, useful for its significant heat resistance qualities. Workers inhale asbestos fibers, which cannot be effectively filtered by the lungs' natural protective mechanisms because they are too small. Exactly how the fibers cause malignancy in the mesothelial cells is not known. Lenora Scruggs had also joined her husband in a claim for loss of consortium in the original complaint.
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-3are appellees in this case. Mr. Hohman died in 1986 of

mesothelioma and his wife Jeanette instituted suit both as personal representative of his estate and on her own behalf; she too died during trial and the personal representative of her estate, her daughter, Victoria Croghan, was substituted as a plaintiff in her mother's wrongful death action and as the successor personal representative of the estate of William Hohman. appellee in this case. She is the third

For convenience, however, we will refer to

the three men who died of mesothelioma, rather than their personal representatives, when discussing the issues presented in this appeal.4 The three defendants/appellants before us are Owens-Corning Fiberglas Corporation (hereinafter "OCF"), Porter Hayden Company (hereinafter "PH") and Owens-Illinois, Inc. (hereinafter "OI"). was an insulation around distributor Baltimore. and OCF installer and OI in PH

industrial and

facilities

manufactured

distributed products containing asbestos, notably pipe and boiler insulation. From the late 1940's to 1953, OI manufactured and

distributed Kaylo, an insulation material containing asbestos. From 1953 to 1958, although OI was still the manufacturer of Kaylo, OCF distributed the product; in 1958, OCF bought the Kaylo

manufacturing facility from OI and continued to manufacture and

In part III, section E, infra, we discuss specific legal issues concerning Victoria Croghan's substitution for the late Jeanette Hohman in Jeanette Hohman's wrongful death suit.

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-4distribute introduced. consolidated liability of Kaylo until 1972, when asbestos-free Kaylo was

The other direct and cross-claim defendants in this case are not parties to is this an appeal, and although will be

cross-claim

defendants

issue

addressed in part III, section B, infra.

B.

Harvey Scruggs From 1968 to 1972, Mr. Scruggs was an equipment mechanic

apprentice and journeyman at the Curtis Bay Coast Guard Shipyard in Baltimore as a civilian employee of the Navy. In 1970, for a two-

month period of time, Mr. Scruggs was also trained to be and worked as a pipecoverer. During those four years, according to his own

testimony, he worked mostly in the boiler and engine rooms of Coast Guard cutters, exposed daily to asbestos products: "Q. When you were working in the engine and boiler rooms, Mr. Scruggs, did the dust from the asbestos products get in your hair? A. Q. A. Q. A. Yes, sir. Did it get in your nose? Yes. Did it get in your mouth? Some of it did.

Q. What did your clothes look like at the end of any particular day? A. Dusty. My face was dusty, my glasses were dusty, my hair was dusty."

-5Mr. Scruggs testified at trial that the asbestos dust came in part from the daily sawing and cutting of OCF Kaylo, an insulation available in block and pipecovering form, in the boiler rooms in which he worked. Kaylo was described thus in a 1956 marketing

brochure produced by OCF: "Kaylo

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