AC and S, Inc. v. Abate

In ACandS, Inc. v. Abate, 121 Md. App. 590, 680, 710 A.2d 944 (1998), Frederick Glensky, recovered damages at trial against various companies involved with asbestos work. Id. at 604-06. One such company was Hampshire, Industries, Inc. ("Hampshire"), a contracting company that used asbestos products of other asbestos manufacturing companies. Id. at 604. Frederick Glensky "was the son of a steamfitter, Robert Glensky." Id. at 677. Terry Theis, a co-worker of Robert Glensky's, alleged that he and Robert Glensky were exposed to hazardous asbestos products while working at various job sites. Id. at 625. Frederick "alleged that he was exposed to asbestos when, as a child, he shook the dust off his father's clothes every evening." Id. at 625. Notably, Robert Glensky did not work directly with the Hampshire spraying product. Thus, Frederick Glensky was a bystander to a bystander of a Hampshire asbestos product. The jury found Hampshire liable to Frederick Glensky for exposures from 1962 to 1964, when Frederick was about 12 years old. Id. at 680. On appeal, Hampshire argued that the evidence was not sufficient to establish that any exposure to its product was a substantial factor in causing Frederick's illness. Id. The Court set out the relevant evidence that was presented at trial: 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." Id. at 680. The Court then discussed various medical testimony that explained how exposure to such dusty clothing might induce asbestos related diseases. One physician, Dr. Kipen, testified that Frederick "probably had . . . asbestos exposure as a consequence of his father's employment in . . . occupations that entailed asbestos exposure." Id. "Dr. Kipen concluded that each and every exposure that Glensky had was a substantial contributing factor in the causation of his disease." Id. at 680-81. Indeed, a "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.'" Id. at 681. Based on this evidence, the Court concluded: "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." Id. In AC and S, Inc. v. Abate, 121 Md. App. 590, 625-32, 710 A.2d 944 (1998), cert. denied, 361 Md. 232, 760 A.2d 1107 (2000), the trial court used the type of verdict sheet requested here; that is, the form asked the jury in separate questions whether the defendants were liable with respect to packing and with respect to gaskets. The jury then found Crane liable for the former, but not the latter. The issue on appeal was whether the trial court should have gone further in identifying the subject products by listing their brand names. We answered "no" because the plaintiffs' burden was to prove that "exposure to visible dust from any asbestos-containing product was excessive." Id. at 631. As the plaintiffs proved exposure to excessive amounts of asbestos, the defendants' products that created visible dust could be "lumped together." Id. at 631 n.28 . In AC and S, Inc. v. Abate, appellant's products at issue were gaskets and packing. The jury found appellant's packing was defective and that appellant was negligent but found that appellant was not liable with respect to its gaskets. Id. at 638. It also found appellant was liable to two of the individual all issue plaintiffs. Id. In addressing issues raised by individual defendants in Abate II, we addressed appellant's argument that the plaintiffs "failed to present expert testimony that Crane products, in particular, emitted respirable asbestos fibers." Id. at 670. In other words, appellant argued that, while there was expert testimony that handling encapsulated products would produce asbestos fibers, there was no such testimony relating to appellant's products. We stated that "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." Id. at 671. The Court held that the trial court did not err in instructing the jury on the duties of nonmanufacturers. In AC&S, id. at 700-01, the trial court instructed the jury with instructions almost identical to the instructions at issue in this case concerning the duties of nonmanufacturing suppliers and installers. We held as follows: With these instructions, the trial court made clear that the jury was to determine whether, in light of their particular skills, knowledge, or expertise, certain nonmanufacturing defendants had a duty to discover - or should have known of - the dangers of their products by familiarizing themselves with nonobscure literature. It was not necessary for the judge to provide further instruction - it was for the jury to determine whether a particular defendant had the enhanced duty. The defendant Hampshire was free to argue in closing that, for whatever reasons it deemed pertinent, it should not be held to a greater standard. Id. at 701-02.