710 A.2d 944 (Md. 1998)
Under § 8-103, “[a] citizen may not be excluded from service as a grand or petit juror in the courts of the State on account of race, color, religion, sex, national origin, or economic status.” The joint appellants remind us that “[t]he American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.” Thiel v. S. Pac. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). The joint appellants do not challenge the original array of prospective jurors. Instead, they contend that once the hardship deferments were granted the array no longer represented a cross-section of the community, in that professionals were eliminated from the array.
To the extent that the joint appellants’ argument may be considered an appeal from an unsuccessful challenge to the array, the appellants have failed to meet their burden of establishing that the array, as altered, was not a cross-section of the community. See generally Md. Rule 2-512(a). The appellants have not provided this Court with their definition of “professional.” Nor have they directed us to anything in the record that would indicate how many professionals were in the original array or how many professionals were dismissed for hardship reasons. They have merely reiterated the argument made below, that Judge Rombro’s action “pretty much excused] all of the professionals.” The appellees inform us that, even after the hardship dismissals, the jury pool included a retired Air Force surgical nurse, a registered nurse employed at a veterans medical center, a teacher with a Ph.D. who worked at Coppin State University, a pollution control analyst for the City of Baltimore, and an electrical engineer with the Department of Defense.
To the extent that the argument may be considered an appeal from the court’s dismissal of the prospective jurors without conducting further inquiry into the hardship claims, the argument is without merit. Judge Rombro informed counsel that he had reviewed each of the deferment forms and concluded that each was meritorious, although he admitted that it was “possible” that a handful would not withstand scrutiny if the jurors were called in for further questioning. As the judge pointed out to defense counsel: “Nobody, nobody has said to me that there is any law, that there is any case that says I must review every hardship [by interrogating the prospective juror individually].”
The Court of Appeals has made clear, moreover, that a prospective juror’s request for a hardship deferment is between the juror and the court and is of no legitimate concern to the parties in the case. See Porter v. State, 289 Md. 349, 424 A.2d 371 (1981) (defendant’s right to be present at all stages of trial does not extend to court’s questioning of prospective jurors as to hardship claims). The question of whether a prospective juror should be excused for personal hardship
does not implicate the interests of the defendant. Instead, the interests to be balanced are those of the prospective juror and the administration of the court system. The trial judge must weigh the degree of hardship or inconvenience, as well as any other circumstances relating to the prospective juror’s personal reasons for wanting to be excused, against the effect upon the administration of the court and the statutory obligation of every registered voter to serve when summoned as a juror. Whether or not the defendant desires to have the individual serve is irrelevant to the question of excusing the prospective juror for personal hardship.
Id. at 356, 424 A.2d 371.
B. Racial Discrimination
After the hardship dismissals were granted, six white persons — three women and three men — remained in the jury pool. After the jury was selected, but before it was sworn, counsel for the various defendants pointed out that the plaintiffs had used five of their six peremptory challenges to strike all three of the white women and two of the white men. Defense counsel complained that the plaintiffs had used their strikes in a discriminatory fashion in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628-31, 111 S.Ct. 2077, 2087-89, 114 L.Ed.2d 660 (1991) (extending Batson to civil trials); Gilchrist v. State, 340 Md. 606, 624, 667 A.2d 876 (1995) (The Batson rule “applies equally to white persons and black persons”).
In Gilchrist, 340 Md. at 625-26, 667 A.2d 876, the Court of Appeals explained:
The Supreme Court in Batson articulated a three-step process to be utilized by trial courts in assessing claims that peremptory challenges were being exercised in an impermissibly discriminatory manner....
First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender.... Moreover, “[w]hether the requisite prima facie showing has been made is the trial judge’s call____”
Second, once the trial court has determined that the party complaining about the use of the peremptory challenges to rebut the prima facie case, the burden shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors. The “explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate.” ... The reason offered need not rise to the level of a challenge for cause____ “At this step of the inquiry, the issue is the facial validity of the ... explanation.” ... It is insufficient, however, for the party making the peremptory challenges to “merely deny[ ] that he had a discriminatory motive or ... merely affirm[ ] his good faith.” ...
Finally, the trial court must “determinen whether the opponent of the strike has carried his burden of proving purposeful discrimination.” ... This includes allowing the complaining party an opportunity to demonstrate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impact.... It is at this stage “that the persuasiveness of the justification becomes relevant.......At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” ...
(Citations omitted.)
At the trial below, Judge Rombro determined that the defendants had made a prima facie showing of discrimination. He then called upon counsel for the plaintiffs to offer race-neutral explanations for the peremptory strikes. Counsel explained that:
juror number 118, a white woman, was struck because she: indicated that she knew a witness for the defense; “was a consultant and had a professional background;” and “recognized one of the defense firms in the case.... ”
juror number 119, a white woman, was struck because she was a carpet representative who had had prior business dealings with two of the defendants.
juror number 245, a white man, was struck because he: had a “management background;” had two friends with asbestosis; and had “Knowledge of Piper and Mar-bury....”
juror number 306, a white woman, was struck because she: held a management level position with the Department of Defense; had a family member or friend who died of lung cancer; and commented that she believed that lung cancer was caused by cigarette smoking.
Plaintiffs’ counsel was not called upon to offer an explanation for striking juror number 304, a white man. Counsel for the defendants explained: “We did not challenge 304. We agree he should have been struck.”
In sum, the plaintiffs explained that they used their peremptory strikes to eliminate persons who they believed might be sympathetic to the defense, such as persons in management positions, persons familiar with defense witnesses or counsel for the defense, and persons with preconceived ideas about lung disease. Judge Rombro expressed some skepticism as to whether juror number 245, who described himself as a “supervisor,” actually held a management position. The judge ultimately ruled:
Now, the jury is seated, the six individuals are all African Americans, and there are ten alternates, and of that group only one is white.
I am satisfied after listening to counsel that that did not occur by design. There were reasons given as to the strikes that they made.
Some of them I thought were thin and I don’t mind telling you, but they were reasons that, I guess, under these circumstances, and considering that all of the trial plaintiffs, illustrative plaintiffs or whatever you want to call them are white, and I don’t find that there has been any violation of the civil [Batson] rule.
In Purkett v. Elem, 514 U.S. 765, 767-69, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), the Supreme Court elaborated on the second step of the Batson inquiry, whereby the party exercising the peremptory challenges is called upon to offer race-neutral explanations for the challenges. The Court explained:
The second step of this process does not demand an explanation that is persuasive, or even plausible, “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reasons offered will be deemed race neutral.”
514 U.S. at 768, 115 S.Ct. at 1771 (citation omitted; brackets supplied by Purkett Court). In light of Purkett, this Court has explained:
In a practical sense, if, after the party opposing the strike has presented a prima facie showing, the proponent thereof proffers a facially neutral reason that is accepted by the trial court, then an appeal on Batson principles has little, if any, chance of success, given that the credibility of the proponent offering the reasons is, as it is generally, for the trial court — not an appellate court — to determine.
Ball v. Martin, 108 Md.App. 435, 456, 672 A.2d 143 (1996).
Judge Rombro clearly expressed his determination that counsel for the plaintiffs had non-discriminatory reasons for exercising their peremptory challenges. The judge pointed out that, like the struck jurors, all five trial plaintiffs were white. He recalled that plaintiffs’ counsel had offered race-neutral reasons for all of the challenged strikes. A facially neutral reason that is accepted by the trial court is all that is required to overcome a Batson challenge. The justifications offered by plaintiffs’ counsel were neither “implausible” nor “fantastic” Gilchrist, 340 Md. at 626, 667 A.2d 876. Giving due deference, as we must, to Judge Rombro’s assessment of the credibility of plaintiffs’ counsel in offering the explanations, we perceive no violation. See Ball, 108 Md.App. at 456, 672 A.2d 143.
C. Ex Parte Communication
Several months before trial began, plaintiffs’ counsel proposed that the jurors be provided with notebooks in which they could organize their trial notes. Plaintiffs’ counsel further proposed that photographs of the expert witnesses be inserted into the notebooks. At that time, Judge Rombro indicated:
I certainly ... do intend that the jury will have notebooks, whatever they need to take notes over the course of the trial.
What should be put in there is a matter that we will discuss. Photographs are an interesting concept.
On the day trial began, counsel for the plaintiffs presented the court with three-ring binders for the jurors. Judge Rombro stated that the notebooks would be distributed to the jurors after counsel for the defendants had a chance to look at the notebooks and to lodge any objections they might have. The notebooks were made available to defense counsel, and no objections were made. The notebooks, apparently, were then distributed. No further discussion was had regarding the proposed photographs.
Two months into trial, counsel for one defendant reported to the court that he had seen a juror putting a photograph of an expert witness for the plaintiffs into a notebook. Speaking for counsel for all of the plaintiffs, attorney Theodore M. Flerlage, Jr. acknowledged that, after each expert witness for the plaintiffs had testified, plaintiffs’ counsel had given the court clerk a stack of papers, each containing a photograph of that witness with the witness’s name and a brief summary of his or her qualifications printed at the bottom of the page. The court clerk had then given the papers to the jury to be inserted into the notebooks. It was later established that, in that way, pages regarding eight expert witnesses had been distributed to the jury. Flerlage asserted that plaintiffs’ counsel believed that the court had approved the plan to supply such materials to the jury, and fully expected counsel for the defendants to do the same.
Counsel for all of the defendants then moved for a mistrial, insisting that the actions of plaintiffs’ counsel amounted to improper and prejudicial ex parte communications with the jury. They suggested that, before making a ruling on the motion, Judge Rombro question plaintiffs’ counsel as to “exactly what they have disseminated to the Clerks for dissemination to the jury and how that was done.” They added that, if the court felt it was necessary, it could also question an alternate juror and then dismiss that juror.
Judge Rombro indicated that he would be willing to question a juror in counsel’s presence regarding the photographs but, apparently alluding to the request that the juror then be dismissed, added: “If those are the conditions that the defense puts on my questioning, I won’t do it.”
The judge did conduct further questioning of Flerlage. Flerlage provided the court with copies of several of the papers that had been given to the jury, reiterated that plaintiffs’ counsel had never contacted any juror directly regarding the papers, and provided the court with citations to the trial transcript which, in his view, supported the plaintiffs’ position that the distribution of the materials had been sanctioned by the court.
The judge also questioned the court clerk regarding the matter. The clerk indicated that, at the request of plaintiffs’ counsel, she and another clerk had, at separate times, deposited stacks of papers on the table in the jury room. The court clerk further informed the court: “Anything that is given to the jury, we go in the jury room and put whatever it is on the table and we say this is for you to put in your notebook”.
Upon first learning of the papers, Judge Rombro called the actions of plaintiffs’ counsel “mind boggling” and stated: “I can’t believe that the plaintiffs did what they did in this case.” Upon further reflection, however, the judge observed:
I have already and perhaps too strongly chastised the plaintiffs for their actions in this case.
I don’t think that this was a deliberate act of flouting the Court’s ruling or the general ethical considerations of what counsel has to follow in the trial of the case.
I think that it was a misunderstanding and misreading—
Judge Rombro pointed out that months before trial, when plaintiffs’ counsel proposed putting photographs in the jurors’ notebooks, not one counsel for the defendants voiced any opposition. Judge Rombro also pointed out that the very same practice had been approved and used in the Abate I trial.
Relying on Wernsing v. General Motors Corp., 298 Md. 406, 470 A.2d 802 (1984), Judge Rombro denied the motion for mistrial. In that personal injury case, the jury asked the bailiff for a dictionary so that it could clarify the definition of “proximate cause.” The bailiff supplied the requested dictionary, and the definition found by the jury conflicted with the definition supplied by the court in its instructions. Verdicts were rendered in favor of the plaintiffs. Upon learning of the jury’s use of the dictionary, the defendants moved for a new trial. The trial court denied the motion, but this Court reversed, General Motors Corp. v. Wernsing, 54 Md.App. 19, 456 A.2d 939 (1983), and the Court of Appeals affirmed our decision. The Court explained that the defendants had shown a strong “probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.” 298 Md. at 420, 470 A.2d 802. It concluded that the trial court had abused its discretion in determining otherwise.
In reaching its conclusion, the Court of Appeals expressly rejected a rule adopted by some other jurisdictions that presumes prejudice solely from delivery of a dictionary into the jury room without the consent of the court and all parties. The Court explained that such a presumption could never be rebutted since jurors in Maryland may not be interrogated regarding their deliberations in order to impeach the verdict. It opined:
Further, a presumption of prejudice from the unauthorized presence of a dictionary is inconsistent with the rule we apply when, in the course of trial and before the jury retires, it is learned that a juror has received information concerning the case from a source outside of the record. In those circumstances prejudice is not presumed; rather the test is “whether the conversations were ‘of such a nature that their effect must fairly be held to have been to deprive the injured party of a fair and impartial trial.’ ”
298 Md. at 416, 470 A.2d 802.
Judge Rombro reasoned:
If the [Wernsing] Court says that you don’t presume prejudice from the introduction of a dictionary, then seems to me, clearly follows, that I cannot presume prejudice in this case solely from introduction of a photograph, at the bottom of which is certain information which is in the CV, curriculum vitae of the witnesses who testified.
I find, not just that the parties moving for mistrial have not met the burden of proving prejudice, but I find that there is no prejudice based on this.
The judge later told counsel:
Look, I have to tell you, it shouldn’t have been done, all right? We all agree on that, but it is innocuous for God’s sake.
Everybody is making such a thing about this like it is handing over the atomic secrets to some foreign country.
It really is innocuous. It is a photograph and it says exactly what is on the curriculum vitae....
The judge offered to retrieve the materials from the jurors or to permit the defendants to submit like materials regarding their expert witnesses to the jury. A majority of defendants chose the former option, so the materials were retrieved. The defendants subsequently filed a motion to reconsider the denial of the mistrial request, but the motion for reconsideration was denied.
The joint appellants contend that Judge Rombro’s investigation into any prejudice caused by the distribution of the photographs was insufficient. They assert that the judge should not have denied the mistrial motion without first allowing “complete examination of the plaintiffs and court clerks involved.... ” The appellants seemingly ignore Judge Rombro’s extensive interrogation of Flerlage, and the judge’s questioning of one of the two court clerks involved. Flerlage insisted that plaintiffs counsel believed they had the court’s approval to submit the photographs to the jury. He made clear that no counsel had ever given photographs to a juror directly. The court clerk told the judge that whenever any item was delivered to the jury, it was the practice of the court clerks in general to deposit the item on the desk in the jury room with the simple explanation: “[T]his is for you to put in your notebook.” Judge Rombro accepted these assertions. The judge examined several of the pages in question, moreover. He determined that each contained nothing more than a photograph of the witness and a brief summary of his or her curriculum vitae — all information that had already been supplied to the jury. In short, Judge Rombro conducted a complete inquiry into the matter, delving into all areas about which defense counsel expressed concern. The appellants’ contention to the contrary is without merit.
In the alternative, the joint appellants contend that Judge Rombro’s reliance on Wernsing, for the proposition that prejudice should not be presumed, was misplaced. In the appellants’ view, Wernsing is inapplicable since it did not involve an intentional communication with the jury by a party to the case. The appellants urge this Court to adopt a rule that any communication with a jury by a party is presumptively prejudicial and requires an automatic mistrial. We decline to do so.
Judge Rombro concluded that, while the distribution of the photographs was intentional, it was done under the mistaken impression that it was sanctioned by the court. All distributions were made through the court clerk and not by plaintiffs’ counsel. The judge was satisfied that there was no prejudice whatsoever. Under the circumstances, the adoption of the automatic rule suggested by the joint appellants would serve only to punish the plaintiffs for a transgression they were unaware they were committing. It would not have a deterrent effect and, since there was no prejudice, would provide no cure. We therefore think it best to adhere to our general rule involving improper jury contact of any type. As we explained in Allen v. State, 89 Md.App. 25, 46, 597 A.2d 489 (1991), cert. denied, 325 Md. 396, 601 A.2d 129 (1992), “[i]t is well established in Maryland that in determining whether jury contact is prejudicial, a trial court must balance the ‘probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.’ ” (Citation omitted). See Wernsing, 298 Md. at 416, 470 A.2d 802.
“In reviewing the trial judge’s denial of a mistrial motion, we will not disturb the ruling absent a clear showing of abuse of discretion.” Garrett, 343 Md. at 517, 682 A.2d 1143. We detect no abuse in Judge Rombro’s exercise of discretion in denying the motion for mistrial below.
SUMMARY OF JOINT ISSUES
To summarize, we conclude that, while the trial below was indeed a complicated one, it did not overwhelm the jury. The record reflects that the jury was able to sort through the evidence and apply it to specific defendants and cross-defendants. The court properly listed product types rather than specific brand names on the verdict sheets, as the evidence indicated only that liability would attach, if at all, as to each product of a particular type manufactured, sold, distributed, or installed by a particular defendant or cross-defendant. In addition, the five trial plaintiffs properly served the purpose of giving the jurors an understanding of what a full asbestos case involves.
The joint appellants were not denied their right to a fair and impartial jury. The trial court properly proceeded with jury selection absent those prospective jurors who claimed hardships. Moreover, the court properly exercised its discretion in determining that there was no Batson violation, and in determining that the submission of papers containing photographs and written descriptions of expert witnesses to the jury by plaintiffs’ counsel did not warrant a mistrial.
We turn now to the arguments presented by the appellants individually.
ARGUMENTS OF INDIVIDUAL APPELLANTS
III
SUFFICIENCY OF THE EVIDENCE
In challenging the sufficiency of the evidence as to the various appellees, all of the appellants contend that Judge Rombro erred in denying their motions for judgment at the close of the plaintiffs’ case and at the close of all evidence. Recently, in Grimshaw, 115 Md.App. at 187 n. 11, 692 A.2d 5, this Court reiterated that “[a]s long as [the] plaintiff has presented some evidence to support his theory of liability, the trial court should submit the issue to the jury.” The jury, as trier of fact, must then determine if the plaintiff has proven that the defendant is liable. See Balbos, 326 Md. at 208-09, 604 A.2d 445; Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir.1986).
In making its determination, the jury must apply the substantial factor test, which is also known as the “proximity, frequency, and regularity” test. Grimshaw, 115 Md.App. at 186, 692 A.2d 5. That is, the jury must consider “the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.” Balbos, 326 Md. at 210, 604 A.2d 445. It is not sufficient that the product was used anywhere and at any time at the workplace, regardless of whether the plaintiff was present. See id. at 216-17, 604 A.2d 445 (rejecting the “fiber drift theory”). “A plaintiff must show more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use.... A plaintiff must present evidence ‘to show that he inhaled asbestos fibers shed by the specific manufacturer’s product.’ ” Grimshaw, 115 Md.App. at 186, 692 A.2d 5 (citation omitted). “ ‘In addition, trial courts must consider the evidence presented as to medical causation of the plaintiff’s particular disease.’ ” Balbos, 326 Md. at 211, 604 A.2d 445 (citation omitted).
As the Court of Appeals has explained, it is not the province of an appellate court to express an opinion regarding the weight of the evidence when reviewing judgment on a verdict.... Even if a jury verdict is “inconsistent” in the sense that certain findings of fact cannot logically be reconciled with each other, we will normally not reverse a jury’s verdict either in a civil or a criminal case....
Garrett, 343 Md. at 521, 682 A.2d 1143 (citations omitted). Evidence will be deemed sufficient if it “ ‘serves to prove a fact or permits an inference of fact that could enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the right of the plaintiff to recover.’ ” Collier v. Eagle-Picher Indus., Inc., 86 Md.App. 38, 62, 585 A.2d 256 (citation omitted), cert. denied sub nom. Corhart Refractories v. Collier, 323 Md. 33, 591 A.2d 249 (1991).
A. Goodman
John Joseph Goodman was diagnosed with mesothelioma in January of 1993. He died just before trial, on February 2, 1994, at the age of 71. Goodman worked at the Standard Oil refinery in Baltimore from May of 1951 to October of 1957. At trial, Goodman’s attorneys alleged that it was then that he was exposed to the asbestos that later caused his mesothelioma.
Prior to his death, Goodman testified in a videotaped deposition de bene esse. The videotape was played and admitted into evidence at trial. In the deposition, Goodman testified that he worked as an insulator’s helper at Standard Oil. An insulator’s helper worked with an insulator insulating pipes, boilers, and other equipment. The refinery employed seven such teams at a time. Goodman explained that, at Standard Oil, a variety of asbestos-containing insulation products were used, such as block, blankets, and cement. He testified that he worked “all over” the refinery and that, during his six-year tenure there, he applied enough asbestos-containing insulation to go “[f]rom here to California and back, five times.”
- Rapid -
The jury found that Goodman was exposed to the products of Rapid’s predecessor, Philip Carey Manufacturing Company, from 1951 to 1957. Rapid launches a two-pronged attack in response to the jury’s verdict.
Rapid first points out that, although Goodman identified a variety of insulation products that he worked with at Standard Oil, he did not identify any Carey products. That identification came from another insulator’s helper, Franklin Lloyd, who worked at Standard Oil from 1947 to 1956. Rapid concedes that, when a plaintiff is unavailable to identify a particular product to which he was exposed, that identification may be made by another witness. It argues, however, that when the plaintiff is available to testify — here by videotaped deposition de bene esse — any identification of a product must be made by the plaintiff.
Rapid’s argument is without legal foundation. There is simply no rule of law that would prevent a plaintiff from relying on other witnesses to identify asbestos-containing products to which he or she was exposed. Indeed, two of the plaintiffs in Godwin, 340 Md. 334, 667 A.2d 116, did just that. Godwin plaintiff Leggette McNiel worked just outside an open hearth furnace shop at Bethlehem Steel’s steelmaking facilities at Sparrows Point and was required to enter the shop several times a day. Although McNiel was available to testify at trial, he relied upon a witness who worked inside the shop to identify asbestos-containing products used there. 340 Md. at 350-353, 667 A.2d 116. Like Goodman, Godwin plaintiff Ira Russell died prior to trial and his videotaped deposition de bene esse was admitted into evidence. Russell was a pipefitter who worked for contractors who did work at Sparrows Point. His suit alleged that he contracted asbestosis from removing insulation applied to the pipes by Bethlehem Steel workers. Russell’s case depended on the testimony of a Bethlehem Steel worker to identify the insulation products. Id. at 350, 353-55, 667 A.2d 116.
The rule that Rapid urges this Court to accept would severely handicap plaintiffs, in general, in the pursuit of their claims. Many of those persons now claiming to suffer from asbestos-related diseases allege that their exposures to disease-causing agents date back twenty to fifty years. Those plaintiffs whose memories might understandably be hazy would be prohibited from relying on witnesses with clearer recollections. Moreover, many potential plaintiffs, such as McNiel in Godwin, were bystanders who never worked with asbestos-containing products and never had knowledge of the products to which they were exposed. Such plaintiffs would be unable to rely upon witnesses who did have knowledge of the products. See Roehling v. Nat’l Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir.1986) (reversing summary judgment in favor of defendants and explaining that trial court’s requirement that plaintiff identify asbestos-containing products personally unless other identifying witness placed plaintiff at site was “unreasonable” and would “destroy an injured bystander’s cause of action for asbestos exposure”).
Rapid further argues that, even if Lloyd’s testimony was sufficient to identify Carey asbestos-containing insulation products as products used at Standard Oil during the time of Goodman’s exposure, the evidence was insufficient to establish that the products were a substantial factor in causing Goodman’s disease. In Rapid’s view, the evidence did not satisfy the proximity, frequency, and regularity test.
There is no dispute that the Standard Oil refinery was a large facility, covering several square miles and containing roughly ten million feet of piping. Lloyd testified that Carey was “one of the insulations used” at Standard Oil — he recalled seeing both Carey pipecovering and block throughout the plant. In his deposition de bene esse, Goodman testified that he worked “all over” the refinery insulating “anything that had to be heated.” Both Goodman and Lloyd testified that, as insulators’ helpers, they insulated boilers, and Lloyd told the court that all but one of the boilers were located “in one big boiler house.”
While neither Goodman nor Lloyd testified to knowing or working with the other, the evidence made clear that they held identical jobs at Standard Oil at substantially overlapping times. Goodman testified that he worked eight hours a day, five days a week. He further testified that, on big jobs, up to six insulators and insulators’ helpers worked together. Lloyd made clear that, while he was an insulator’s helper, Carey pipecovering and block were used throughout the plant. On this, we are satisfied that a reasonable jury could infer that Goodman, like Lloyd, regularly worked with Carey products during his employment at Standard Oil. The evidence satisfied the proximity, frequency, and regularity test. See Asner, 344 Md. at 180-82, 686 A.2d 250 (although no direct evidence linked plaintiff Wilson to ACandS insulating cement, the jury could infer that Wilson was regularly exposed to the cement from evidence that he supervised workers who either used the cement or who worked near others who used the cement); Godwin, 340 Md. at 353-55, 667 A.2d 116 (although no direct evidence linked plaintiff Russell to Unibestos pipe covering, the jury could infer that Russell was regularly exposed to the pipe covering from evidence that it was available to be used at the plant by insulators during the time period that Russell worked there as a pipefitter).
- U.S. Mineral -
The jury determined that Goodman was exposed to U.S. Mineral’s fireproofing spray in 1957. U.S. Mineral asserts that Goodman never mentioned that he was exposed to a spray product, and no other witness testified that a spray product was used at Standard Oil while Goodman worked there. According to U.S. Mineral, there was no suggestion whatsoever that U.S. Mineral’s spray product, which was known as CAFCO, was used at Standard Oil at the relevant times.
A review of the record supports U.S. Mineral’s position. In his deposition testimony, Goodman specified that he was exposed to dust from asbestos-containing blocks, blankets, and cement. At trial, Eston Bonner, a former Hampshire employee, testified that he sprayed asbestos-containing fireproofing at Standard Oil “in the late ’50s---- I would say from ’57 through ’60.” He specified that he used a product known as “Spraycraft,” however, which was not manufactured by U.S. Mineral.
Bonner made clear that he used Spraycraft at Standard Oil “from ’57 through ’60.” Even if Bonner had identified CAFCO as the product he used, he did not specify when in 1957 he began spraying at Standard Oil. In the absence of any testimony from Goodman that he was exposed to any spray product, no rational inference could be drawn that Bonner began spraying before Goodman left in October of that year, much less that Bonner sprayed in Goodman’s presence. Under the circumstances, the evidence was indeed insufficient to support the verdict in favor of Goodman.
- Hampshire -
According to the jury, Goodman was exposed to products used by Hampshire from 1951 to 1957. The parties tacitly agree that the jury’s verdict concerned exposure to Hampshire’s fireproofing spray. Hampshire contends that the evidence was insufficient to support the verdict, in that there was no evidence that Hampshire sprayed at Standard Oil while Goodman was present. As we explained in our discussion as to U.S. Mineral, we must agree. There was simply no evidence from which the jury could draw the necessary inference.
In an alternative argument that is moot as to Goodman and, as we shall see, as to Morrow but is significant as to Theis and Glensky, Hampshire argues that, even if a trial plaintiff established exposure to its application of fire proofing spray, the evidence was insufficient to support the jury’s finding that Hampshire was negligent. As we shall discuss infra, Hampshire disputes that its duty to warn was the duty imposed upon a nonmanufacturing supplier/installer. Apparently assuming arguendo that it should be held to that standard, however, Hampshire argues that it did not know and should not have known, prior to 1965, that asbestos-containing spray could be dangerous to bystanders. See Balbos, 326 Md. at 203-04, 604 A.2d 445 (indicating that, depending upon its peculiar opportunity and competence, a nonmanufacturing supplier may have a duty to discover information presented in nonobscure publications and to warn of those dangers — that is, such a nonmanufacturing supplier should be held to a modified “knew or should have known” standard). Hampshire asserts that the trial plaintiffs alleged that they were exposed in the years prior to 1965, but that the plaintiffs failed to establish that “nonobscure” literature regarding dangers to bystanders was available prior to 1970.
Evidence that “nonobscure” literature existed prior to 1965 was introduced through Dr. Barry Castleman, who testified for the plaintiffs as an expert “in the fields of occupational health and health hazards of asbestos and the history of asbestos.” Dr. Castleman listed more than a dozen articles published between 1933 or 1934 and 1964, which described diseases suffered by asbestos workers. The articles appeared in a variety of publications, including, in some cases, Lancet— a “tremendously widely available medical journal” according to Dr. Castleman — and the New England Journal of Medicine. In response to a question by plaintiffs’ counsel, Dr. Castleman agreed that these “were published in English, ... were non-obscure and ... were readily available, easily available to anybody in the United States or even in Baltimore who wanted to read those articles around the time they were published.” As Hampshire acknowledges, moreover, the plaintiffs presented evidence that in 1939 the Legislature made asbestosis an occupational disease under the Maryland Workers’ Compensation statute. See 1939 Laws of Maryland chapter 465, § 32A at 991-92; Md. Ann.Code art. 101, § 34 (1939).
Whether the articles described by Dr. Castleman were in fact “nonobscure” was a question for the jury, which was apprised of each and every publication in which a described article appeared. Likewise, it was for the jury to determine whether it could be inferred from the publications, which concerned users of asbestos-containing products rather than bystanders, as well as from the Workers’ Compensation statute, that asbestos-containing products posed a danger to bystanders as well as users.
Dr. Castleman gave a brief description of each article from which the jury could infer that, if the user was exposed, a bystander might be exposed as well. For instance, Dr. Castleman explained that one article described “chemical plant workers who were exposed to asbestos insulation and developed asbestosis----” Another discussed “a worker in an aluminum plant who got asbestosis from the dust created by wearing garments, safety clothing, gloves and things, to protect him from hot metals and splashing metals in an aluminum plant.” There was an article “about a plumber’s helper who got asbestosis from sawing pipecovering.... ” In addition, the Workers’ Compensation statute suggested that one need not have been an asbestos worker to be entitled to compensation. It stated that any employee who contracted asbestosis from “[a]ny process or occupation involving an exposure to or direct contact with asbestos dust” could recover. Id. (emphasis added). On this evidence, we are satisfied that an ordinarily intelligent mind could draw a rational conclusion that Hampshire should have known of the dangers posed to bystanders by asbestos-containing sprays.
B. Ciotta
Leonard Ciotta suffered from a lung condition known as pleural plaques. Like Goodman, Ciotta alleged that he was exposed to the asbestos that later caused his condition while working at the Standard Oil refinery. Ciotta worked at Standard Oil from 1950 to 1956. He worked as a labor gang member for six months, then became a pipefitter’s helper. As a pipefitter’s helper, Ciotta assisted in installing and replacing pipes and other equipment. The job entailed tearing off old asbestos-containing insulation.
Ciotta, who was 73 at the time of trial, testified below. He testified, as did Goodman, that he worked “all over” the refinery. In particular, Ciotta recalled working “[i]n the boiler house a lot of times” with Goodman. Ciotta told the court that he often worked near the “asbestos workers,” or insulators, while they were creating dust.
- Rapid -
The jury determined that Ciotta, like Goodman, was exposed to insulation products manufactured by Rapid’s predecessor, Carey, from 1950 to 1956. Rapid contends that the evidence was insufficient to support the verdict in favor of Ciotta. It reiterates the arguments it made as to Goodman, arguing that Ciotta himself did not identify Carey products but relied upon Lloyd’s identification, and that, in any event, the evidence as a whole failed to establish that Carey products were a substantial factor in causing Ciotta’s condition. In addition, Rapid argues that the evidence was insufficient to establish that Ciotta suffered a legally compensable injury.
As we have explained, there is simply no rule of law that would prevent a plaintiff from relying on other witnesses to identify the asbestos-containing products to which he or she was exposed. Ciotta’s reliance on Lloyd to identify Carey insulation products as products in use at Standard Oil during Ciotta’s term of employment did not render the evidence presented by Ciotta insufficient.
We are satisfied, moreover, as we were in the Goodman case, that the evidence was sufficient to satisfy the proximity, frequency, and regularity test. Lloyd testified that Carey pipecovering and block were used throughout the plant. Ciotta testified that he worked “all over” Standard Oil, that his job entailed tearing asbestos insulation off of pipes and other equipment, and that he often worked with insulators who also created dust while they worked. We are satisfied that, on this evidence, a reasonable jury could infer that Ciotta regularly tore off Carey insulation products and worked near insulators who were using Carey insulation products. See, e.g., Godwin, 340 Md. at 353-55, 667 A.2d 116.
Nor are we persuaded that the evidence was insufficient to establish that Ciotta suffered a legally compensable injury. It is true, as Rapid contends, that “the condition known as pleural plaques, or even generalized pleural thickening, unaccompanied by disabling consequences or physical impairment, is not a compensable injury as a matter of law.” (Emphasis added.) See Owens-Illinois v. Armstrong, 87 Md. App. 699, 734-35, 591 A.2d 544 (1991) (jury instruction that pleural plaques and pleural thickening are not compensable injuries was proper absent any evidence of loss or detriment to plaintiff), aff'd in part and rev’d in part on other grounds, 326 Md. 107, 604 A.2d 47, cert. denied, 506 U.S. 871, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992); MCIC, Inc. v. Zenobia, 86 Md.App. 456, 481-84, 587 A.2d 531 (1991) (trial court properly instructed jury that it could not award damages for pleural plaques unless it found that plaintiff was actually harmed), vacated on other grounds, 325 Md. 420, 601 A.2d 633 (1992); Wright v. Eagle-Picher Indus., Inc., 80 Md.App. 606, 614, 565 A.2d 377 (1989) (jury instruction that pleural plaques are not a compensable injury was proper absent any evidence of loss or detriment to plaintiff). Rapid asserts that, “[i]n the Ciotta case, there was absolutely no objective evidence of any functional impairment.” This assertion is belied by the record.
Ciotta testified that, about four years before trial, he began experiencing shortness of breath which made it difficult for him to cut his lawn and do other chores around his house. His symptoms progressively worsened until he could no longer climb two flights of steps, walk a golf course, engage in sexual relations with his wife, or dance — except for a “slow number” now and then. About two years after the symptoms began, Ciotta received a letter from his trade union regarding asbestos-exposure and was urged to have a chest X-ray. Ciotta got the X-ray and the doctors recommended further testing. Eventually, Ciotta was informed that he had scar tissue on his lungs. Ciotta admitted that, from 1955 until 1985, he had smoked approximately two packs of cigarettes a month.
Dr. David Schwartz testified for the plaintiffs as an expert in the areas of internal medicine, pulmonary medicine, and occupational medicine. Dr. Schwartz examined Ciotta prior to trial. The doctor explained that the visceral pleura is the lining around each lung, and the parietal pleura is the lining inside the chest wall. He stated that “asbestos can cause scarring and fibrosis of both of those areas,” which he referred to as “pleural disease.” Dr. Schwartz opined that Ciotta had extensive asbestos-induced pleural disease, with pleural plaques in both the visceral pleura and parietal pleura. He performed testing upon Ciotta which confirmed that Ciotta had reduced lung capacity which, in his view, was caused by the pleural plaques. According to Dr. Schwartz, the condition was irreversible.
Dr. Schwartz acknowledged that Ciotta was overweight and had been a “minimal” smoker. He testified, however, that neither excess weight nor smoking causes pleural plaques. The doctor stated that, while Ciotta’s excess weight might be a factor in his shortness of breath, it was not the cause of it. Dr. Schwartz acknowledged that testing showed that Ciotta had a heart condition — a “mild mitral tricuspid and aortic insufficiency” — but stated that the condition would not cause the type of shortness of breath that Ciotta was experiencing.
Dr. Schwartz testified that Ciotta’s condition put him at an increased risk for other asbestos-related complications such as asbestosis, lung cancer, and mesothelioma, such that his condition would require future monitoring. In fact, he stated that Ciotta’s “shortness of breath and reduced lung volumes suggest, also, that he has asbestosis that is not ... clinically evident on the chest X-ray.” The doctor added that Ciotta’s pleural disease impaired his ability to fight off respiratory infections and “other intercurrent illnesses, like heart disease, that put stress on the lungs.”
It is thus clear that there was ample evidence that Ciotta’s pleural plaques were accompanied by physical impairment. Rapid’s argument goes more to the weight of the evidence than the sufficiency. As we have indicated, supra, “it is not the province of an appellate court to express an opinion regarding the weight of the evidence when reviewing judgment on a jury verdict.” Garrett, 343 Md. at 521, 682 A.2d 1143.
C. Theis
Terry Theis became a steamfitter after he graduated from high school. From 1962 to 1967, he worked as an apprentice for Mitchell. At trial, Theis testified that he worked at many job sites for Mitchell, but there were four major sites. Theis stated that he spent 13 to 15 months each at Murphy Homes, City Hospitals, the Federal Office Building, and the Lever Brothers plant, in that order.
Theis explained that, as a steamfitter, he repaired and replaced piping systems. He himself handled asbestos-containing gaskets, blankets, rope, and packing. In addition, he was exposed to asbestos-containing pipecovering, block, cement, and spray used by other trades. In the fall of 1992, while he was still working as a steamfitter, Theis developed a cough and began experiencing shortness of breath. He was referred to a pulmonologist, who diagnosed him as suffering from asbestosis. The doctor confirmed that Theis’s asbestosis was caused by occupational exposure to asbestos. Theis was 53 years old at the time of trial.
- Crane -
The jury found Crane, a manufacturer of sealing products, negligent and strictly liable as to its packing but not its gaskets. The jury further found Crane liable to Theis for exposures from 1962 to 1980. Crane points out that Theis testified that some of the gaskets he used while working for Mitchell were manufactured by Crane. Theis stated that another company manufactured the packing he used. No other witness identified Crane packing as a product used by Theis. Crane therefore concludes: “Because there is absolutely no evidence that Mr. Theis ... was exposed to John Crane packing products, as opposed to gasket products, the jury’s verdict that exposure to John Crane products from 1962 to 1980 was a substantial factor in causing [his] disease[ ] is clearly inconsistent with the uncontroverted evidence.”
There is considerable question as to whether this argument, as well as an identical argument as to Glensky, is preserved for appellate review. The appellees assert that, although Crane moved for judgment on several grounds at the close of the plaintiffs’ case and again at the close of all evidence, it challenged the sufficiency of the product identification evidence only as to Goodman and Ciotta. See generally Md. Rule 2-519(a) (in moving for judgment, “[t]he moving party shall state with particularity all reasons why the motion should be granted”). Crane expressly acknowledged that there was evidence that Theis and Glensky were exposed to Crane “gaskets and/or packing.” Crane contends on appeal that, because when the motions for judgment were made it did not yet know what form the verdict sheets would take or that the jury would find liability for packing but not gaskets, it could not have known to move for judgment as to its packing on the ground that the only evidence presented as to Theis and Glensky concerned gaskets. Crane contends that it raised the matter in post-trial motions, and suggests that that was sufficient to preserve it for appeal. We are nonplussed by Crane’s contentions. In any event, assuming without deciding that the argument is preserved, we find it to be without merit.
As we explained supra, in our discussion as to the joint appellants’ challenge to allegedly erroneous jury verdicts, Theis testified that he worked with Crane gaskets and that he often had to cut the gaskets from sheets. A Crane catalog that was admitted into evidence lists several pages of asbestos sheet packing, and notes that gaskets can be cut from the sheet packing. It is apparent that the jury concluded that Theis cut the gaskets he used from sheet packing designed for that purpose. The jury’s verdict was not inconsistent with the evidence.
In the alternative, Crane asserts — as it asserted in its motions for judgment — that the plaintiffs failed to present expert testimony that Crane products, in particular, emitted respirable asbestos fibers. Crane asserts that, in the absence of such testimony, Crane “was entitled to the entry of judgment in its favor upon its Motions at the close of the Plaintiffs’ cases, and again at the close of all evidence.” As support for its position, Crane improperly cites several unpublished memoranda from other jurisdictions. See Contreras v. Hawk, Nos. 95-1810 and 95-2126, 1996 WL 72352 (7th Cir. February 14, 1996); Nogan v. GAF Corp., No. 88-0334, 1989 WL 161541 (M.D.Pa. May 22, 1989); Delaney v. Porter Hayden Co., No. L-40701-85 (N.J.Super.Ct. May 20, 1986). We are not bound by these decisions, and we decline to adopt the rule urged by Crane. We shall not hold that a plaintiff in any asbestos case must present expert testimony as to the amount of respirable asbestos fibers emitted by a particular product. Under the peculiar circumstances of this particular case, the evidence against Crane was sufficient without such testimony. See, e.g., In re New York Asbestos Litigation, 847 F.Supp. 1086, 1094-95 (S.D.N.Y.1994) (evidence that pipe contained asbestos, dust was created when pipe was handled, and plaintiff breathed dust was sufficient to establish exposure to respirable asbestos fibers, even without expert testimony), aff'd in part, vacated in part on other grounds sub nom. Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003 (2d Cir.1995), vacated and remanded sub nom. Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031, 116 S.Ct. 2576, 135 L.Ed.2d 1091 (1996); Junge v. Garlock, Inc., 427 Pa.Super. 592, 629 A.2d 1027, 1029-30 (1993) (rejecting contention that a plaintiff in an asbestos case must present expert testimony as to how many asbestos fibers are contained in dust emissions from a particular asbestos-containing product).
Theis testified that he cut gaskets from sheets using a saw or “ball-peen” hammer. He explained that he was 12 to 16 inches from the materials when he cut the gaskets, that the process created visible dust, and that he breathed the dust. Dr. James R. Millette, who testified as an expert witness for the cross-plaintiffs and whose testimony was adopted by the plaintiffs, testified that gaskets and packings, in general, are not considered “friable” — that is, they do not emit respirable asbestos fibers — but they become friable if “cut or torn.”
As we have observed, Dr. John McCray Dement, an expert witness for the plaintiffs, testified to the effect that, whenever any asbestos-containing product is manipulated to the extent that it creates visible dust, “a very significant health hazard” is presented.
Crane employee George McGillop testified on cross-examination below that Crane had conducted studies of workers at its manufacturing plant “when they were cutting gaskets or cutting rings for fiber release to see about the asbestos at that time.” McGillop explained that the workers who were studied had
a small machine, and it looks like a microphone near their mouth.
And as they are cutting the rings, cutting the gaskets or braiding the material, the asbestos fiber in the air gets onto this filter.
And the filter is then taken to the laboratory. And through some type of microscope, they determine the amount of fibers that are picked up within an eight-hour period.
Thereafter, Judge Rombro permitted the plaintiffs to offer Crane’s own plant monitoring reports into evidence to rebut evidence presented by Crane to the effect that its finished products did not emit respirable asbestos fibers. The reports, which were prepared from 1976 to 1985 pursuant to Occupational Safety and Health Administration requirements, revealed that unsafe levels of asbestos fibers were released into the air breathed by the workers during a number of manufacturing processes. One such process was described as the “production of gaskets from sheet packing by use of dyes and circle cutter.”
On the evidence before us, we are satisfied that “ ‘an ordinarily intelligent mind [could] draw a rational conclusion’ ” that Crane packing emitted respirable asbestos fibers. Collier, 86 Md.App. at 62, 585 A.2d 256 (citation omitted). It could further conclude that Theis was exposed to such fibers when he cut gaskets from Crane sheet packing, and that the exposure was a substantial factor in causing his illness.
- U.S. Mineral -
The jury found U.S. Mineral liable to Theis based on exposures to its fireproofing spray in 1962 and 1968. As we observed in our discussion of U.S. Mineral’s appeal as to Goodman, that spray was known as CAFCO. The company contends: “[T]here is a complete absence of evidence to support the jury’s finding that Mr. Theis was exposed to CAFCO.” We must agree.
Theis worked for Mitchell from 1962 to 1967. He testified that he believed he was exposed to fireproofing spray while working for Mitchell at Murphy Homes and City Hospitals. Theis did not identify the manufacturer of the spray, although he stated that Hampshire was the spray contractor at Murphy Homes. Hampshire employee Eston Bonner testified that he sprayed CAFCO at Murphy Homes sometime in the late 1950s. Although Bonner did not recall spraying at Murphy Homes in the 1960s, he acknowledged that he testified in an earlier deposition that he sprayed Spraycraft there sometime in the “middle ’60’s.” As we have observed, Spraycraft was not a U.S. Mineral product. Bonner further testified that he used Spraycraft at City Hospitals sometime in the early 1960s. A Hampshire executive confirmed that U.S. Mineral stopped selling spray fireproofing to Hampshire in 1959.
No other testimony was presented regarding spraying at Murphy Homes or City Hospitals, or any other location where Theis might have been working. As U.S. Mineral contends, there was simply no evidence from which the jury could properly infer that Theis was ever exposed to U.S. Mineral’s spray product.
- Stebbing -
The jury also found Stebbing liable to Theis for exposures in 1964 and 1965. The parties agree that the finding necessarily involved Stebbing’s application of fireproofing spray. Stebbing argues that the trial plaintiffs failed to present any evidence that Theis was ever exposed to spraying by Stebbing. Again, we must agree.
To reiterate, Theis testified that he believed he was exposed to fireproofing spray only at Murphy Homes and City Hospitals. He stated that he worked at Murphy Homes, City Hospitals, the Federal Office Building, and the Lever Brothers plant, in that order, for 13 to 15 months each beginning sometime in 1962.
The trial plaintiffs presented the testimony of witness Frank Bunjon to establish that Stebbing was involved in spraying. Bunjon had worked for Stebbing as a plasterer. He stated that, in the early 1960s, he was plastering for Stebbing at the Federal Office Building while other Stebbing employees sprayed Spraycraft fireproofing there. Bunjon testified that the spray made the air very “foggy,” that it “permeate[d] the entire work area,” and that workers from “[a]ll of the crafts” were present. Bunjon did not identify Theis as being on the scene.
As Stebbing points out, Theis did not so much as suggest that there was a possibility that he was exposed to spraying at the Federal Office Building. Bunjon could not identify Theis as being present when the spraying was done there. Bunjon stated that the spraying was done in the early 1960s. Using the time frames testified to by Theis, Theis could not have been at the building before mid 1964. As Stebbing contends, the jury could not have properly concluded, on the evidence before it, that Theis “was exposed to any fireproofing ... that was performed by a Stebbing employee, let alone that it was on a regular, frequent and proximate basis which would have been a substantial factor in the production of his asbestosis.”
- Hampshire -
Hampshire was found liable to Theis for exposures from 1962 to 1964. Hampshire acknowledges that Theis identified it as the company that sprayed fireproofing in the boiler room of Murphy Homes while he was working there. It argues only that “his case plainly does not meet the ‘frequency, regularity, proximity’ test.” Hampshire posits that “[a]t best, [Theis’s] evidence limits his exposure to Hampshire’s spray work only to an unidentified portion of a few days in a boiler room at Murphy Homes.... ”
To the contrary, Theis testified that he was working at Murphy Homes at the same time Hampshire workers were there spraying. Theis was questioned as follows:
Q Now, when they did this spraying, would they say okay, everybody out of the room, we are going to spray?
A No, they didn’t.
Q Were there ever times you were in the room when they just opened up with the spray?
A Yes, there were, often.
Theis specifically recalled working in the boiler room of Murphy Homes when Hampshire was spraying. He stated that the room was the size of a courtroom, and that the spray created so much dust that he wouldn’t have been able to see the jury from the witness stand.
Hampshire’s argument that this evidence was not sufficient to satisfy the substantial factor test ignores the nature of fireproofing spray. Hampshire employee Eston Bonner testified that, when such spraying is done, bags of material are dumped into a “hopper.” The material “is mixed up in there, comes out through a hose, is applied with water on the other end.” Bonner told the court that “lots of dust” was created, so much so that workers in other trades would complain and, at times, “tempers would flare, and people would get mad.” Bonner added that seven to ten-percent of the material would fall off of the items being sprayed. Bonner explained that Hampshire used U.S. Mineral’s CAFCO spray in the 1950s and switched to Spraycraft, which was manufactured by another company, in the 1960s.
In short, there was evidence that, on several occasions while he was working at Murphy Homes, Theis worked in the same room as Hampshire employees who were applying fireproofing spray. That spray created so much dust that it was difficult to see. The evidence amply satisfied the substantial factor test.
D. Glensky
Frederick Glensky was 45 years old at the time of trial. He was the son of a steamfitter, Robert Glensky. Robert Glensky worked for Mitchell at the same time that Theis worked for that company. Glensky testified that, as a child, one of his “duties” was to take his father’s work coveralls into the basement and shake them out so that his mother could launder them.
While in high school, Glensky worked part-time assisting his father. In 1970, after he graduated from high school, Glensky became an apprentice steamfitter. In 1976, he became a steamfitter like his father.
Sometime in 1985, Glensky began experiencing shortness of breath. He sought medical help and learned that he had a tumor in his right lung. The tumor, which was benign, was removed in 1990, along with between one-third and one-half of his lung. Glensky was also diagnosed as having asbestosis.
- Crane -
The jury determined that Crane was liable to Glensky for exposures occurring from 1962 to 1980. Crane argues, as it argued in regard to Theis, that the evidence suggested only that Glensky was exposed to Crane packing and not Crane gaskets.
We have made clear that the jury could have properly concluded that workers who cut gaskets from Crane sheet packing were actually working with Crane packing. Glensky testified that, as an apprentice steamfitter from 1970 to 1976, he regularly used Crane gaskets as well as gaskets manufactured by other companies. He explained that he worked with precut gaskets and with “sheet gaskets that we would have to cut.” In addition, Theis testified that, when he worked for Mitchell, he worked closely with Glensky’s father. Theis testified that he used gaskets manufactured by Crane, among other companies, and that the gaskets sometimes had to be cut from sheets. It could thus be inferred that Robert Glensky, like Theis, was exposed to dust when Crane sheet packing was cut into gaskets, and that Robert Glensky carried that dust home with him on his coveralls. The evidence was sufficient to establish that Glensky was exposed to Crane packing.
- U.S. Mineral -
The jury determined that Glensky was exposed to U.S. Mineral’s fireproofing spray from 1962 to 1963. U.S. Mineral points out that Glensky’s case was “piggy-backed” to Theis’s case, in that Glensky alleged that he was exposed to asbestos dust brought home on his father’s clothes, and Theis provided the only testimony that Glensky’s father was exposed to fireproofing spray. U.S. Mineral argues that the verdict in favor of Glensky should be reversed for the same reason that the verdict in favor of Theis must be reversed.
Theis stated that he worked with Glensky’s father at Murphy Homes and City Hospitals — the two locations at which Theis believed he was exposed to asbestos-containing spray. Theis specifically recalled that Robert Glensky was with him in the boiler room at Murphy Homes when Hampshire was spraying there. As we have concluded, however, the evidence was insufficient to establish that Theis — and therefore Robert Glensky — was exposed to U.S. Mineral’s product at either location. Like the verdict in favor of Theis, the verdict in favor of Glensky must be reversed.
- Stebbing -
Stebbing was found liable to Glensky for exposures occurring in 1964 to 1965. Again, Glensky’s exposures were to asbestos dust from Robert Glensky’s clothes. Again, Glensky’s case was “piggy-backed” to Theis’s case. Stebbing argues that, like the verdict in favor of Theis, the verdict in favor of Glensky must be reversed.
The parties agree that the only evidence that could possibly link Robert Glensky to spraying by Stebbing concerned spraying at the Federal Office Building. Theis testified that he worked with Robert Glensky at the Federal Office Building, and his testimony suggested that their work there began sometime around mid 1964. Theis did not testify that he was exposed to spraying at that building. Stebbing employee Frank Bunjon stated that he plastered at the Federal Office Building sometime in the early 1960s while other Stebbing employees were applying fireproofing spray. Bunjon did not identify either Theis or Robert Glensky as being present at the time. As in Theis’s case, the evidence failed to establish that Glensky was exposed to spraying by Stebbing.
- Hampshire -
The jury found Hampshire liable to Glensky for exposures from 1962 to 1964. Glensky’s case against Hampshire rested on Theis’s case, in that Glensky again alleged that he was exposed to asbestos dust brought home on his father’s clothes after his father worked with Theis. Hampshire argues that, even if the evidence was sufficient to establish its liability to Theis, it was not sufficient to establish that Robert Glensky was exposed to its application of fireproofing spray, or that any such exposure was a substantial factor in causing Fred Glensky’s illness.
To recount, Theis testified that Robert Glensky worked with him in the boiler room at Murphy Homes while Hampshire was spraying. Theis testified that the room was the size of a courtroom, and that the spray created so much dust that he wouldn’t have been able to see the jury from the witness stand. Theis specifically recalled that Robert Glensky’s clothes were covered with white dust. Hampshire employee Eston Bonner told the court that the spraying process created so much dust that workers in other trades would complain and, at times, “tempers would flare, and people would get mad.”
Dr. Howard Kipen testified for the plaintiffs as an expert in the fields of internal medicine, preventive medicine, and occupational medicine. Dr. Kipen testified it was most likely that Glensky was occupationally exposed to asbestos for the first time when he worked with his father while in high school. He added that Glensky “probably had [much earlier] asbestos exposure as a consequence of his father’s employment in ... occupations that entailed asbestos exposure.” The doctor explained that the earlier exposures were not necessarily “sporadic,” in that “asbestos is fairly indestructible. Once it would get into a place in the house or the car or whatever, unless somebody used appropriate kinds of HEPA vacuums or other things, it might be around for quite awhile.” Dr. Kipen concluded that each and every exposure that Glensky had was a substantial contributing factor in the causation of his disease. Another medical doctor called by the defendants confirmed that household exposure to asbestos dust, such as that caused by shaking out dusty clothing, “can cause disease, there is no doubt about it.” See generally Grimshaw, 115 Md.App. at 191-98, 692 A.2d 5 (holding that plaintiff Granski, who laundered her stepfather’s clothes after he was exposed to defendant manufacturer’s products, was a foreseeable plaintiff such that defendant owed her a duty to warn, and that evidence was sufficient to establish that defendant’s product was substantial factor in causing Granski’s mesothelioma).
In sum, there was evidence that Glensky’s father was exposed to spraying by Hampshire, that he carried dust from the spraying home on his coveralls, and that Glensky was exposed to the dust when he shook off the coveralls. There was medical testimony that household exposure to asbestos dust can cause disease. The evidence was sufficient to permit the jury to conclude that Glensky’s exposure was a substantial factor in causing his illness.
E. Morrow
Carroll Morrow was diagnosed with mesothelioma in June of 1993. Morrow testified at trial but died before the case went to the jury. He was 77 years old.
Morrow testified that he worked at the Western Electric plant from 1941 until 1979. From 1941 until 1962, Morrow worked as a pipefitter. He worked primarily in the plant’s wire insulation building. In 1962, Morrow became a plant inspector.
Morrow’s work as a pipefitter involved repairing and replacing piping systems. To that end, Morrow used a variety of asbestos-containing products, including gaskets, packing, and pipecovering. According to Morrow, all of these products created dust which he breathed. Once he became an inspector, Morrow did not personally work with the products, but he would work “right next to” the pipefitters whose work he was inspecting.
- Crane -
The jury determined that Morrow was exposed to Crane packing from 1941 to 1980. Crane argues that the evidence indicated only that Morrow worked with Crane packing for two weeks each year from 1941 to 1946, when the Western Electric plant was shut down and all leaks were fixed. Crane concludes that this exposure was insufficient to satisfy the substantial factor test. It adds that “[t]here is no way to determine whether the jury would have found Mr. Morrow’s actual limited exposure ... to be a substantial factor in the development of Mr. Morrow’s disease” had it limited its determination to the proper time period.
We need not concern ourselves with whether the jury would have made such a determination, as Crane’s argument is based on a faulty premise. The evidence simply did not suggest that Morrow was exposed to Crane packing for only two weeks a year from 1941 to 1946. Morrow testified that he used packing whenever he had to repair a leak. The plant was shut down for two weeks each year, and all leaks were repaired. Morrow did not suggest that leaks were repaired only during that two-week period. To the contrary, his testimony indicated that, as a pipefitter, he repaired and replaced piping on a “day-to-day basis.” Morrow admitted that he stopped working personally with packing after 1946, but did not suggest that he stopped working closely with workers who did use packing. As we have observed, Morrow testified that as a plant inspector he worked “right next to” the pipefitters whose work he was inspecting.
As Crane concedes, Morrow testified that Crane and Gar-lock packing was used at Western Electric. When a leak was repaired, old packing was torn out and replaced with new packing. Morrow explained that dust was created when packing was removed, and he breathed in the dust. On the evidence presented, we are satisfied that the jury properly concluded that Morrow was exposed to Crane packing on a regular basis from 1941 to 1979, when he retired. We find the jury’s error in determining that Morrow was exposed until 1980, beyond his date of retirement, to be de minimis. We are satisfied that, had the jury considered Morrow’s exposures only until 1979, it would nevertheless have properly found the exposures to have been a substantial factor in causing his illness.
- U.S. Mineral -
According to the jury’s verdict, Morrow was exposed to U.S. Mineral’s fireproofing spray from 1955 to 1960. U.S. Mineral challenges the verdict, arguing that there was no evidence that Morrow was exposed to its product or to any fireproofing spray whatsoever.
The Western Electric plant was comprised of several buildings and was approximately three miles long and one-and-one-quarter miles deep. Morrow indicated that he worked primarily in the wire insulation building until he became a plant inspector in 1962. That building was about 600 feet long by 600 feet wide, with ceilings about 40 feet high. As U.S. Mineral contends, Morrow did not testify that he was ever exposed to fireproofing spray. Nor did any other witness testify that Morrow was present when spraying was done. The only evidence as to possible exposure came from Hampshire employee Eston Bonner.
Bonner testified that Hampshire sprayed fireproofing at Western Electric “on and off’ from “the mid ’50s to approximately up to ’65----” Initially, Hampshire used U.S. Mineral’s CAFCO but later switched to Spraycraft. Bonner testified that Hampshire sprayed throughout the plant, including in the wire insulation building, but added: “These were small jobs. They were not large jobs.”
In short, there was no suggestion that Hampshire sprayed U.S. Mineral’s product — or any other spray product — in the wire insulation building before Morrow’s promotion in 1962, or that it sprayed anywhere else in the plant while Morrow was present. The evidence was insufficient to support the verdict. See, e.g., Balbos, 326 Md. at 215-17, 604 A.2d 445 (evidence that defendant sometimes installed asbestos-containing insulation products at Bethlehem Steel’s Key Highway Shipyard during four-year period that plaintiff was employed there was insufficient to establish that plaintiff was exposed to dust from products).
- Hampshire -
Finally, the jury determined that Hampshire was liable to Morrow for exposures from 1941 to 1965. Hampshire concedes that it sprayed fireproofing at the plant while Morrow was employed there, but argues that there was no evidence that Morrow was ever exposed to the spray. Hampshire concludes: “Morrow established no basis for any permissible inference that he was actually exposed to Hampshire’s spray work. It also must follow that Morrow’s evidence certainly fell short of the ‘frequency, regularity, proximity’ test.” Hampshire shall prevail for the same reasons that U.S. Mineral must prevail.
Morrow did testify that he saw Hampshire employees applying plaster at the plant not long after he started working there, and that while he worked as a pipefitter he saw Hampshire employees “[o]ff and on, different places, different buildings.” Morrow did not specify what the workers were doing on those subsequent occasions. As we have explained, although Bonner testified that Hampshire employees sprayed fireproofing at Western Electric from the mid 1950s to 1965, Bonner did not identify Morrow as being at the scene of any spray applications and Morrow did not suggest that he was exposed to any spray. Because of the size of the plant, it simply could not be properly inferred from the mere fact that spraying was conducted that Morrow was exposed. See id.
IV
RAPID’S ALLEGATION OF DISCOVERY VIOLATION
As our discussions as to the sufficiency of the evidence in the Goodman and Ciotta cases indicate, the verdicts against Rapid in favor of Goodman and Ciotta hinged on the Carey product identification testimony of Franklin Lloyd. Rapid asserts that it was blindsided by Lloyd’s testimony, in that the plaintiffs never identified Lloyd during discovery as a witness who would identify Carey. Rapid further asserts that, on the morning that Lloyd testified, plaintiffs’ counsel assured counsel for Rapid that Lloyd would not identify Carey.
On direct examination of Lloyd, plaintiffs’ counsel showed Lloyd a photograph. The examination proceeded as follows:
Q Now, do you recognize that box and name on the box?
A I have seen it, sure.
Q And when do you recall seeing that name?
A Well, I seen it quite a few times around the refinery.
Q The Standard Oil Refinery we are referring to?
A Standard Oil Refinery.
Q What is the name that appears on that box?
A Carey.
Q And did Carey make any other product other than pipecovering that was used down at Standard Oil?
A I don’t recall that, no, not that — no, or if they — I recognize the — they made this block insulation. I remember seeing block type, which is rectangular blocks six inches wide by 36 inches long.
Q Okay. Do you recall the Carey pipecovering and block being used throughout the Standard Oil plant?
A Yes.
Q And did that create the dust that you described also?
A That was one of the insulations.
Q And based on your experience working at Standard Oil, did — could you see any way for the other workers to avoid working in the dust?
A Not unless they want to walk off the job, unless they wanted to just walk off the job. No, we all worked in conjunction of the pipefitters, boilermakers and—
Q Now, sir, do you recall being deposed on February— well, do you recall being deposed earlier?
A I am sorry?
Q Do you recall sitting in a room with a bunch of lawyers and being quizzed?
A Yes, I do.
Q That is called a deposition. Yours was taken on February 9, 1991 and I was with you; do you recall that?
A I remember.
Q You did not mention Carey pipecovering in this deposition.
Can you explain to the ladies and gentlemen of the jury why you did not recall Carey at that time?
A Well, I probably couldn’t think of it at the time. There was — I guess I must have missed a lot of stuff.
They were all throwing questions at me and I suppose — I know there was probably some refractory cements and clays that I never mentioned----
Rapid’s counsel elected not to cross-examine Lloyd.
After Lloyd left the stand, Rapid moved to strike his testimony on the ground of unfair surprise. Rapid’s counsel informed the court that counsel for the plaintiffs had assured him that very morning that Lloyd would not identify Carey products. The following discussion took place between counsel for the plaintiffs and Judge Rombro:
[PLAINTIFFS’ COUNSEL:] Your Honor, in the case of Mr. Lloyd, he identified in his deposition Owens-Illinois Kaylo, A.P. Green, Ruberoid, Armstrong, Johns-Manville and a number of other products that I on direct chose not to elicit from him.
And he testified regarding Carey, Harbison-Walker and General Refractories and he had not testified about them in his deposition.
I was uncertain as to what his testimony was going to be—
THE COURT: You didn’t know that he was going to identify Westinghouse and Carey?
MR. CANDON [PLAINTIFFS’ COUNSEL]: Your Honor, he is the original absentminded professor and I didn’t know what he was going to be saying, and I just — I am in a quandary as to what I am supposed to tell the defendant. I don’t know if—
THE COURT: I know one thing, I don’t know what you are supposed to tell them either, but I know that if you tell them somebody is not going to identify their product, then I am not going to let you identify their product.
You tell them that this guy isn’t going to say that and then he gets on the stand and he does it, that is not playing fair.
Whether you were — wait a minute, I didn’t say you solicited it, but even if you were surprised as Mr. Quarles [Rapid’s counsel] was, that is not appropriate.
Now, if you even think it is going to happen, you got to alert them after that.
Judge Rombro nevertheless denied Rapid’s motion to strike Lloyd’s testimony. The judge instructed counsel for the plaintiffs to provide Rapid’s counsel with a copy of Lloyd’s deposition, and assured Rapid’s counsel that Lloyd would be recalled for further examination if counsel so desired. Rapid now contends that Judge Rombro erred by refusing to strike Lloyd’s testimony.
Preliminarily, we point out that we are not persuaded by the appellees’ contention that Rapid waived its argument by failing to object to Lloyd’s testimony as it was elicited and by failing to state expressly, in moving to strike the testimony, that the plaintiffs had failed to mention in discovery proceedings that Lloyd would be a product identification witness against Carey. As to the appellees’ assertion that Rapid failed to object to the testimony as it was elicited, we note that counsel for Rapid informed this Court during oral argument that, on the day of Lloyd’s testimony, the courtroom was so crowded with attorneys that he was relegated to a seat outside the bar and several rows back. Counsel indicated that he simply could not make what would ordinarily be considered a “timely” objection. Judge Rombro’s thorough consideration of the motion to strike suggests to this Court that, under the circumstances, counsel was not expected to do so. A trial court has broad discretion in determining whether an objection or motion to strike is timely. As the Court of Appeals has explained: