Maryland Court of Special Appeals Affirms Jury Verdict Against Asbestos Installer Even Absent Direct Evidence That Installer Used Asbestos-Containing Materials at a Particular Site

In Wallace & Gale Asbestos Settlement Trust v. Busch, a decision released on September 26, 2018 by the Court of Special Appeals of Maryland, the state’s intermediate appellate court affirmed the jury verdict entered in favor of the Estate of William Busch, Jr. against Wallace & Gale Asbestos Settlement Trust (“Wallace & Gale”), finding that Mr. Busch developed mesothelioma as a result of exposure to asbestos-containing insulation products installed by Wallace & Gale during the construction of Loch Raven High School (“LRHS”).

Busch was a steamfitter who worked at numerous construction projects over the course of his lengthy career.  At LRHS, Busch worked installing thermostats, sensors, relay stations, fan control systems and automatic temperature control devices, all of which work was generally performed at the end of construction when “most of the job sites were pretty much completed and finished.”  Wallace & Gale was an insulation contractor that sold and installed a variety of insulation products, not all of which contained asbestos. The evidence in the case was that Busch worked at the LRHS project for three to four months in the late winter and early spring of 1972, mostly in the school’s boiler room where he testified he was exposed to a “snow storm” of visible dust created when blocks of insulation were cut, stacked around boilers, and covered with cement.  Abatement records were used to show that the block used on the boilers at LRHS contained asbestos.  Busch did not know who employed the insulators who worked around him at LRHS.  Two co-workers testified that a different contractor, McCormick, was responsible for insulating the boilers at LRHS.  Some records were introduced, including a “partial billing statement” from Wallace & Gale to a mechanical contractor for insulation of “various plumbing, heating and ventilation surfaces” at LRHS.  Further, time sheets from Wallace & Gale employees showed that some insulators worked at the project generally for a total of 4500 man-hours in the first six months of 1972.

At trial, Wallace & Gale acknowledged there was evidence that it did work at LRHS but that there was no evidence that it used asbestos-containing products.  Invoices, order forms and delivery ticket submissions were introduced showing fiberglass products and a non-asbestos cement were used at the project.  The only document connecting Wallace & Gale to the boiler room was a “partial billing” showing work performed by Wallace & Gale to “insulate fire lines in boiler room.”  The construction specifications called for “foamglass” insulation for the fire lines.  The specifications called for asbestos on the boilers themselves but there was no direct evidence that Wallace & Gale was responsible for the supply or insulation of the block insulation on the boilers themselves.  The trial court denied Wallace & Gale’s motion for judgment at the end of the Plaintiff’s case and at the end of all evidence and the jury returned a verdict against Wallace & Gale and a co-defendant for $14,568,528.33 in damages, subsequently reduced to $7,284,264.17 due to settlement shares.  After post-trial motions were denied, Wallace & Gale noted an appeal, arguing that “insufficient evidence was presented upon which a reasonable jury could conclude that W&G was responsible for the supply and/or installation of asbestos-containing magnesia block during the construction of LRHS.”

Despite the lack of evidence connecting Wallace & Gale to the work with asbestos-containing block on the boilers at the LRHS project, the Court of Special Appeals affirmed the trial court’s decision permitting the verdict to stand.  The appellate court concluded that

“A reasonable fact-finder could have inferred that, given the significant number of hours W&G performed insulation services at LRHS, the services provided included the insulation of the boiler with magnesia block. A fact-finder might have considered it unlikely that a separate insulation contractor would have been hired for the limited purpose of insulating the boilers while W&G was already on site performing a great deal of insulation work, including work in the boiler room. This evidence does not necessarily compel a conclusion that W&G applied asbestos-containing insulation to the boiler in the boiler room at LRHS. It is, however, evidence upon which a reasonable fact-finder could have found it more likely than not that W&G was responsible for the work. “

The appellate court noted that this is a “circumstantial evidence case” and such evidence can be sufficient to support a jury verdict.  Consequently, the appellate court held that the trial court did not err in denying the various motions for judgment made during and post-trial.

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