Should the Jury Be Allowed to Infer Product Identification in Maryland Asbestos Cases?

Miles & Stockbridge P.C.

On March 4, 2019, the Court of Appeals of Maryland heard oral argument on an appeal from a $7.28 million jury verdict in favor of Plaintiffs William Busch and his wife Kathleen against the asbestos settlement trust established by Wallace & Gale (W&G). Wallace & Gale Asbestos Settlement Tr. v. Busch, 238 Md. App. 695, cert. granted, 462 Md. 84 (2018). In the absence of any direct evidence that W&G used asbestos-containing products at the construction site at issue, the Baltimore County Circuit Court found that the evidence presented was sufficient for the case to go to the jury.     

Mr. Busch brought suit against seven different defendants 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—mostly in 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, and at trial, evidence was presented that W&G performed a significant amount of construction work at Loch Raven, including insulation work. The only evidence connecting W&G to the boiler room was a partial billing statement for work performed to insulate fire lines with “foamglass” insulation, which does not contain asbestos. While W&G acknowledged that it performed insulation work at Loch Raven, it contended that there was no evidence that W&G insulators worked with any asbestos-containing products at the high school. Indeed, no direct evidence was ever produced at trial connecting W&G to any asbestos-containing insulation installed at the high school. In fact, Mr. Busch testified that he had no recollection of which company installed the insulation in the boiler room, and two of Mr. Busch’s fact-witnesses testified that a company other than W&G installed the insulation in the boiler room.

Despite the lack of any direct evidence that W&G installed the asbestos-containing insulation blocks in the boiler room, the jury returned a verdict in favor of Mr. Busch.  On appeal, the Maryland Court of Special Appeals considered whether the Circuit Court erred by denying W&G’s motion and renewed motion for judgment as a matter of law based on insufficient evidence to support a rational inference of causation. The Court of Special Appeals affirmed and saw this as a product identification issue—whether the evidence was sufficient to support an inference that W&G installed asbestos containing magnesia block in the boiler room at Loch Raven. The Court held that although the evidence was “slight,” it was “sufficient to allow the case to go to the jury.” The Court 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.

This case is now pending in the Maryland Court of Appeals. A decision in this case will impact the product identification standard in Maryland asbestos cases. If the Court of Appeals affirms, a plaintiff could get his or her case to a jury with only the slightest evidence connecting the plaintiff’s asbestos exposure to the defendant’s product.  Alternatively, a reversal would protect manufacturers from the risk of a multi-million-dollar jury verdict based on circumstantial evidence and merely an inference of product identification.  

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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