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Top court revives smoker’s asbestos verdict

An asbestos supplier whose product caused a smoker’s fatal lung cancer cannot shave off a portion of its liability by arguing it rightly belongs to tobacco companies that the survivors never sued, Maryland’s high court ruled Monday.

The Court of Appeals reinstated a $1.3 million verdict against the Wallace & Gale Asbestos Settlement Trust.

In its 5-2 decision, the court rejected the trust’s argument that it was at most 75 percent responsible for Roger C. Hewitt Sr.’s death on Dec. 20, 2008, at age 81.

Hewitt, who smoked a half-pack of cigarettes a day for 65 years, was exposed to asbestos in Wallace & Gale’s pipe insulation while working at Bethlehem Steel from 1946 to 1978, according to the Court of Appeals’ opinion.

The high court said that apportioning liability with an unnamed defendant would smack of comparative negligence, the legal doctrine under which damages are reduced to reflect the percentage by which plaintiffs are deemed responsible for their own injuries.

The Court of Appeals has rejected comparative negligence in favor of contributory negligence, under which a defendant is absolved of liability if the plaintiff’s negligence is at all responsible for his or her injury.

“To apportion damages to the plaintiff’s smoking history/tobacco exposure, in our view, is to apportion damages between the plaintiff and the defendant, which is to hold the plaintiff accountable under comparative negligence principles…,” Judge Clayton Greene Jr. wrote for the high court. “Again, allocation of fault between plaintiffs and defendants is contrary to this state’s longstanding principles of contributory negligence.”

The Hewitt family’s attorney, Michael T. Edmonds, called the decision a victory for the thousands of victims of asbestos-related diseases who are seeking or will seek compensation in Maryland courts.

“There won’t be a reduction in damages if someone is found to be a joint tortfeasor,” said Edmonds, of The Law Offices of Peter T. Nicholl in Baltimore. The named defendant is “responsible for the whole verdict,” he added.

Edmonds called it less burdensome on plaintiffs to sue a known asbestos supplier than to discover which cigarette companies might have been responsible for the victim’s cancer.

“We don’t know what brand of cigarettes Mr. Hewitt smoked,” Edmonds said. “We know what defendants distributed and used asbestos at Bethlehem Steel, where Mr. Hewitt worked.”

The trust’s attorney, Mitchell Y. Mirviss, did not return telephone and email messages seeking comment Monday. Mirviss is with Venable LLP in Baltimore.

In its decision, the high court said Baltimore City Circuit Judge John M. Glynn correctly barred testimony from a medical expert who planned to testify that Hewitt’s years of smoking were at least 25 percent responsible for the lung cancer that killed him. Glynn said Gerald R. Kerby’s testimony was irrelevant because no cigarette company was on trial, leaving the trust liable for all damages awarded.

In March 2011, the jury awarded $1,325,495.95 to the Hewitts on their wrongful death, survival and loss of consortium claims.

The intermediate Court of Special Appeals overturned Glynn’s ruling and the jury’s award in a reported May 2, 2013, opinion, saying Kerby’s testimony on apportioning damages should have been admitted.

The Court of Appeals disagreed.

“Plaintiff Hewitt, under the common law, is allowed to sue WGAST for the full amount of damages for an indivisible injury that WGAST was a substantial factor in causing even if a cigarette company’s negligence contributed to the harm,” Greene wrote.

In dissent, Judge Irma S. Raker distinguished a permissible apportionment of damages among defendants — such as asbestos and cigarette companies — from an apportionment between a defendant and plaintiff, which Maryland law prohibits under contributory negligence.

“In my view, a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: Death can be capable of apportionment as to damages, but not as to fault,” wrote Raker, a retired judge specially assigned to sit in place of Judge Shirley M. Watts, who had recused herself from the case.

Watts, then a Court of Special Appeals judge, wrote the May 2013 opinion that was reversed on Monday.

‘Use plaintiffs’ can recover

The Court of Appeals also addressed a separate issue faced by the Hewitts and three other families whose judgments were overturned or reduced by the Court of Special Appeals.

In all four cases, the intermediate court overturned awards to family members who had not added their names to the lawsuit within a three-year statute of limitations.

But the Court of Appeals unanimously reinstated the awards, finding these “use plaintiffs” were entitled to damages because their presence in the litigation, though not filed in time, neither surprised nor disadvantaged the defendant, WGAST.

The use plaintiffs “pointed to a number of facts that support these propositions: All use plaintiffs were identified in discovery, they were listed as ‘plaintiffs’ in the proposed voir dire, most of them were deposed at the same time as the four party plaintiffs, they were introduced to the jury, all but three testified at trial and were subjected to cross-examination, and each of the use plaintiffs was listed on the verdict sheet and obtained individual awards resulting in money damages,” Greene wrote.

The high court noted that the cause of action arose before a Jan. 1, 2013, change to the procedural rules. The new rule requires that plaintiffs formally intervene and seek court approval in a lawsuit if they do not come forward within the statute of limitations.

The three other families in the appeal are the survivors of Levester James, who worked at American Smelting and Refining Co.; Mayso A. Lawrence Sr., who worked at ASARCO and at Bethlehem Steel; and Rufus E. Carter., who worked at ASARCO. All three were exposed to asbestos supplied by Wallace & Gale.

The total jury award to the four families was $4.06 million.

GREENE

WHAT THE COURT HELD

Case:

Sonia Carter et al. v. Wallace & Gale Asbestos Settlement Trust, CA No. 84, Sept. Term 2013. Reported. Opinion by Greene, J. Concurrence and dissent by Raker, J. Argued May 5, 2014. Filed July 21, 2014.

Issue:

(1) Did the trial court err in refusing to allow testimony on apportioning damages between lung cancer caused by the defendant’s asbestos and by unnamed cigarette companies? (2) Did the trial court err in allowing family members to proceed as “use” plaintiffs even though they had not joined the suit within the limitations period?

Holding:

(1) No; apportionment of damages with unnamed defendants is contrary to Maryland’s law, which rejects comparative fault; (2) No; the use plaintiffs neither surprised nor disadvantaged the defendants in this case.

Counsel:

Michael T. Edmonds for petitioners; Mitchell Y. Mirviss for respondent

RecordFax #14-0721-20 (65 pages).