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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product. 'In addition, trial courts must consider the evidence presented as to medical causation of the plaintiff's particular disease.'"
Balbos, 326 Md. 179, 210-11, 604 A.2d 445, 460 (citations omitted).
OI contends that plaintiffs put on no competent evidence that, during the relevant period from April, 1952, when Hohman began work at Conoco, until April, 1958, when OI sold the Kaylo line, Mr. Hohman was exposed to Kaylo to an extent that would meet our substantial factor test of causation. Thus, OI argues that the trial court erred by allowing the issue to go to the jury and not granting judgment for OI.
OI, in alleging error based on the trial court's denial of its motion for judgment, must meet a high standard. Upon a motion for judgment, "the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made." Md. Rule 2-519 (b).
Because Mr. Hohman died in 1986 of his mesothelioma, he was unable to testify. Instead, his evidence that Kaylo produced by OI was a substantial factor in his developing mesothelioma rests on the testimony of several of his co-workers at the Conoco plant; on documentary evidence that Kaylo was used at the Conoco facility during the relevant time period; and on the medical testimony of Dr. Victor Roggli.
Lloyd Urps was a union plasterer. He testified that during numerous summers during the fifties and sixties, he worked as a pipecoverer, and that "practically every summer" between 1952 and 1958 he did so at the Conoco facility where Mr. Hohman worked. Urps further testified that he used a variety of asbestos products at the Conoco facility, including a round pipecovering asbestos product. He identified this product as manufactured by Johns-Manville, but also stated that Kaylo pipecovering was used. Finally, Urps testified that he used Kaylo asbestos block at the Conoco facility. Urps was not acquainted with Hohman and could not testify to Hohman's exposure.
William E. Whitley was an asbestos worker beginning in the 1940's and continuing until his retirement in 1982. During his career, Mr. Whitley began as an apprentice, and became a mechanic, foreman, superintendent, and manager. Mr. Whitley testified that he worked at the Conoco facility sporadically during the relevant time period (1952-1958). He identified the asbestos products in use at that time as
"pipecovering products were Johns-Manville, 85 percent mag. Pipecovering and block. We used some Owens-Corning, Kaylo, pipecovering and block."
Whitley, like Urps, did not know Mr. Hohman during the relevant time period, and therefore could not testify regarding Hohman's exposure to OI Kaylo.
Hohman's best evidence was provided by Otto Biden. In a twist of irony, Biden was subpoenaed to testify by OI. In Biden's own asbestos-related suit he had testified that the only asbestos product that he remembered being used at the Conoco facility was produced by Armstrong. At this trial, however, Biden also was able to recall another asbestos product, but could only remember a large "K" on the box. More importantly, Biden also placed Hohman in close proximity to asbestos dust during the relevant period:
"Q: And you were in and out of Continental Oil 20 times or more over the years?
A: I probably was, yes, sir.
Q: Now, in the 19
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