On July 3, 2019, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals in Wallace & Gale Asbestos Settlement Tr. v. Busch, 238 Md. App. 695 (2018), aff’d, No. 58, 2019 WL 2865070 (Md. July 3, 2019). The Court found that the jury reasonably inferred that, based on W&G’s “substantial” presence during the construction of a high school building, W&G was responsible for the asbestos exposure and resulting illness of a plaintiff who worked only in the boiler room of the high school. The Court determined that the jury’s inference was reasonable even in the absence of any direct evidence linking W&G to the installation of any asbestos-containing product in the high school.
Mr. Busch and his wife sued seven different companies claiming exposure to their asbestos-containing products caused his mesothelioma. With respect to W&G, Mr. Busch alleged that he was exposed to asbestos-containing materials installed by W&G at Loch Raven High School in Baltimore County. In 1972, for a total of three to four months, Mr. Busch worked on the construction of Loch Raven in only the boiler room. Mr. Busch introduced evidence that the sawing of magnesia insulation blocks in the boiler room contributed to his mesothelioma. W&G sold and installed insulation products. At trial, evidence was presented that W&G performed a significant amount of construction work at Loch Raven, including insulation of plumbing, heating, and ventilation surfaces. However, no direct evidence was produced at trial connecting W&G to any asbestos-containing insulation installed at the high school. In fact, in response to pre-trial defense interrogatory requests, Mr. Busch identified two other manufacturers as the manufacturers of the asbestos-containing products he was exposed to at the high school. Mr. Busch testified at trial that he had no recollection of which company installed the insulation in the boiler room. Additionally, the deposition testimony of two of Mr. Busch’s fact-witnesses was read into evidence at trial. Both testified that a company other than W&G installed the insulation in the boiler room.
The trial court denied W&G’s motion for judgment and the jury returned a verdict in favor of Mr. Busch. The Court of Special Appeals affirmed. Despite describing the evidence as “slight,” the Court of Special Appeals determined that a reasonable fact finder could have found that, more likely than not, W&G was the primary or only insulator at Loch Raven at the time, and therefore W&G installed the asbestos-containing magnesia block in the boiler room. Wallace & Gale Asbestos Settlement Tr., 2018 WL 3814962, at *6. The Court of Appeals agreed and affirmed the decision of the Court of Special Appeals.
The Court of Appeals previously established, in Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 213 (1992), that a plaintiff in an asbestos case must show that the plaintiff’s exposure to the defendant’s product was a “substantial factor” in causing the plaintiff’s injury. The factors a court must consider in making the substantial factor determination are: frequency, proximity, and regularity. Id. The Balbos court explained that speculation and conjecture are not sufficient to establish product identification, but that circumstantial evidence will suffice. Id. at 210, 215. Still, plaintiffs must provide some evidence that links the plaintiff to the defendant’s asbestos-containing product. Id. at 215.
Judge Joseph Getty dissented from the majority opinion in Busch and made clear his belief that the Court of Appeals has “departed from [its] long-held standard” established in Balbos. Wallace & Gale Asbestos Settlement Tr., No. 58, 2019 WL 2865070, at *12 (Md. July 3, 2019) (Getty, J., dissenting). In his dissent, Judge Getty opined that the jury drew “impermissible inferences” from the circumstantial evidence presented at trial. Id. at *11. In his analysis, Judge Getty focused on the Balbos standard and subsequent cases applying Balbos. Based on the lack of evidence, Judge Getty believes that “the verdict was the product of mere conjecture and speculation”:
The inference that W&G was more likely than not responsible for the asbestos work in the boiler room was an assumption based on asserted probability created by W&G’s mere presence at LRHS. A missing (and determinative) piece of the mosaic constructed by Busch is evidence linking W&G to the installation of the asbestos-containing materials used in the boiler room, or even linking W&G to asbestos work performed anywhere in LRHS.
Id. at *11, *14.
Although Judge Getty agrees with the majority that “circumstantial evidence (and reasonable inferences available therefrom) can be sufficient to establish exposure or liability,” he concludes, based on the evidence presented in this case, that “the jury was not entitled to infer that W&G was the insulator responsible for the asbestos-containing products in the boiler room.” Id. at *11, *13. Specifically, “[a] defendant’s primary or general presence at a large worksite, without more, fails to demonstrate the required degree of specificity,” and therefore “does not constitute sufficient proof of product identification, thus preventing W&G from being held liable.”
Indeed, the Court of Appeals’ decision in Busch is difficult to reconcile with Balbos. In this case, there was no evidence showing that any asbestos-containing product manufactured by W&G was in the same place at the same time as Mr. Busch. No witnesses identified W&G as working with asbestos-containing insulation at Loch Raven. In fact, more than one witness testified that a different manufacturer was responsible for insulating the boilers at Loch Raven.
The Busch majority opinion demonstrates that even with only “slight” evidence of product identification, plaintiffs can get their cases to a jury. Though it remains unclear how “slight” the evidence must be for a court to decide that it crosses the line from a reasonable inference to speculation under the Balbos standard. “Almost only counts in horseshoes and hand grenades,” and apparently Maryland asbestos cases. Wallace & Gale Asbestos Settlement Tr., 2019 WL 2865070 at *1.
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