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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
Zenobia plaintiffs in any tort case seeking punitive damages must prove knowledge and bad faith by a standard of "clear and convincing evidence" rather than the preponderance standard used to prove liability for compensatory damages. Zenobia, 325 Md. at 469, 601 A.2d at 657. We reasoned in Zenobia that the heightened standard of proof was appropriate because not only money but stigmatization was at stake in an award of punitive damages:
"Use of a clear and convincing standard of proof will help to insure that punitive damages are properly awarded. We hold that this heightened standard is appropriate in the assessment of punitive damages because of their penal nature and potential for debilitating harm. Consequently, in any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages."
Zenobia, 325 Md. at 469, 601 A.2d at 657 (emphasis in original).
We now turn to the instant case and apply the Zenobia test to OCF's actions in manufacturing and marketing Kaylo during the time Mr. Scruggs was exposed. In determining whether the plaintiffs failed to meet their burden of proof on punitive damages, we are not considering the weight of the evidence presented by the plaintiffs, as that is solely a jury question; rather, we pass upon the sufficiency of the evidence to take a case to the jury at all. See Benkoe v. Plastic Assembled Prod., Inc., 231 Md. 419, 420, 190 A.2d 638, 639 (1963); May v. Warnick, 227 Md. 77, 88, 175 A.2d 413, 419 (1961); Boob v. Fisher, 225 Md. 278, 281, 170 A.2d 298, 299 (1961). Therefore, in this case we shall have to find that the evidence was insufficient as a matter of law for a reasonable jury to have found by a clear and convincing standard that OCF had actual knowledge of the dangers of Kaylo, and that OCF made a bad faith decision to market Kaylo despite its knowledge of the threat to the consumer.
As we discussed at length in Godwin the general state of the art knowledge up to 1972 concerning asbestos and its effects, 340 Md. at 363-67, 667 A.2d at 129-32, we shall not repeat it here, except where relevant to OCF's particular arguments.
1. Conflicting Interpretations of OCF's Knowledge of Asbestos Hazards and Kaylo Hazards
OCF argues, in effect, two separate theories as to why it did not have the requisite actual knowledge of Kaylo's hazards. First, OCF contends that at the time Mr. Scruggs was exposed, OCF did not believe Kaylo was a dangerous or defective product because it "believed or hoped" that Kaylo's unique manufacturing process eliminated the health risk of the asbestos component of Kaylo. Internal OCF documents from the mid-1960's, contained in the voluminous record in this case and presented to the jury, add support to OCF's contentions. While the company officials were aware of the potential dangers of asbestos if mishandled, they were not convinced that Kaylo, which contained only 15% asbestos and which was produced through a heat-intensive chemical alteration process, carried the same risks. One writer of a 1964 OCF memorandum commented on Dr. Selikoff's study, (supra) , n.2, noting that asbestos was altered chemically and physically "during the autoclaving process in the presence of lime" and then stating "whether or not this altered asbestos possesses the same cancer inducing tendencies as the original asbestos remains to be demonstrated." Almost three years later, the very same individual repeated his questions in an internal memorandum reviewing the latest studies confirming asbestos carcinogenicity, asking, "Does any, or could any, of the organic carcinogenic oils remain in the asbestos fraction of Kaylo after having been subjected to the severe c
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