(August 13, 2018, 3:59 PM EDT) -- ANNAPOLIS, Md. — A Maryland appeals panel on Aug. 10 affirmed a trial court’s decision to award damages to a man who developed mesothelioma as a result of working on a building project where asbestos insulation was used, ruling that the evidence presented at trial was sufficient for the claims that were made (Wallace & Gale Asbestos Settlement Trust v. William Edward Busch Jr., No. 1055, Sept. Term 2017, Md. Spec. App.).
(Opinion available. Document #01-180829-012Z.)
William Edward Busch Jr. is a retired steamfitter who began working as an apprentice steamfitter in 1967. Throughout his career, Busch worked for Lloyd E. Mitchell, Honeywell Corp. and J.F. Fischer. At J.F. Fischer, Busch advanced to the position of project manager and department head.
Wallace & Gale (W&G) was a local insulation contractor that sold and installed insulation products, some but not all of which contained asbestos. For example, W&G sold and installed fiberglass and foam glass products, which did not contain asbestos. W&G petitioned for Chapter 11 bankruptcy protection in 1984.
In 2002, the Wallace & Gale Settlement Trust (WGAST) was established pursuant to a reorganization plan and was approved by the U.S. Bankruptcy Court for the District of Maryland.
In 2016, Busch sued WGAST, Georgia Pacific LLC and McCormick Asbestos Co. in the Baltimore City Circuit Court, contending that he was exposed to asbestos while working on the construction of Loch Raven High School (LRHS).
A jury returned a verdict in favor of Busch against WGAST and Georgia Pacific, concluding that he suffered from mesothelioma caused by exposure to asbestos-containing insulation products installed by W&G. McCormick had been dismissed from the case before trial.
The jury awarded Busch a total of $14,568,528.33 in damages, which was subsequently reduced to $7,284,264.17.
WGAST moved for judgment notwithstanding the verdict, a new trial and, in the alternative, remittitur. The Circuit Court denied WGAST’s motions.
WGAST appealed to the Maryland Court of Special Appeals, where the case was heard by a panel comprising Judges Christopher B. Kehoe, Stuart R. Berger and Donald E. Beachley.
WGAST contended that the Circuit Court erred when it denied its motion for judgment, which it sought because it argued that Busch failed to present legally sufficient evidence to support a rational inference of causation.
The panel said WGAST’s argument on appeal was “quite narrow.” WGAST argued that insufficient evidence was presented upon which a reasonable jury could conclude that W&G was responsible for the supply and/or installation of asbestos-containing magnesia block during the construction of LRHS.
The panel concluded that the evidence, “though slight,” was sufficient to allow the case to go to the jury.
Specifically, Busch introduced into evidence billing statements that showed that W&G insulators worked on the LRHS project.
“In our view, this evidence could have led a reasonable fact-finder to conclude that W&G was the primary, if not the only, insulator working at LRHS during the critical time period,” the panel said. “A reasonable fact-finder could have inferred that, given the significant number of hours W&G performed insulation services at LRHS, the services provided included the insulation of the boiler with magnesia block.”
Furthermore, the panel said a fact finder might have considered it unlikely that a separate insulation contractor would have been hired for the limited purpose of insulating the boilers while W&G was already on site performing a great deal of insulation work, including work in the boiler room.
The evidence does not necessarily compel a conclusion that W&G applied asbestos-containing insulation to the boiler in the boiler room at LRHS, the panel said; however, it is evidence upon which a reasonable fact finder could have found it more likely than not that W&G was responsible for the work.
WGAST argued that, pursuant to Reiter v. Pneumo Abex, LLC, 417 Md. 57 (2010), the evidence presented in this case was too speculative to support the jury’s verdict.
The panel said it was “unpersuaded” by WGAST’s attempts to “analogize the facts of this case to Reiter.” Rather, the panel concluded that based on the evidence presented at trial, a reasonable jury could have permissibly inferred that W&G was the primary, if not the only, insulation contractor present during the construction of LRHS and, therefore, that W&G was responsible for the installation of asbestos-containing insulation in the boiler room.
WGAST had objected to the admission of evidence that McCormick had been dismissed from the case, contending that it was not relevant.
The panel said it did not need to address whether the fact of McCormick’s dismissal from the case would have been relevant absent the introduction into evidence of the short form complaint and other historical asbestos litigation complaints. “Rather, we consider whether the circuit court erred by finding the fact of McCormick’s dismissal relevant under the ‘opening the door’ doctrine,” the panel said.
The panel added: “The quoted portions of the transcript above demonstrate that the circuit court carefully considered the evidence that had already been presented by WGAST and its potential to confuse the jury in a manner prejudicial to Busch. In an attempt to cure the potential confusion, the trial court permitted Busch to inform the jury that McCormick had been dismissed as a defendant. It was a reasonable determination for the trial court that WGAST, by informing the jury that McCormick had been sued by Busch, had injected an issue into the case that had the potential to confuse the jury as to McCormick’s status. The circuit court, therefore, did not abuse its discretion by permitting Busch to inform the jury of McCormick’s dismissal from the lawsuit to alleviate the confusion created by WGAST.”