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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
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Q. You couldn't spray it properly onto the product?
A. That's right. We had a terrible time trying to spray that type of material."
Apparently this and other such evidence was supposed to demonstrate to the jury OCF's misplaced priorities and bad faith at a time when it had actual knowledge of the dangerous properties of Kaylo.
Similar claims were made in Godwin against more than one defendant; we state here as we implied then that evidence that a company is considering cost and negative publicity implications of a problem product does not alone constitute evidence of bad faith in marketing the product. Normally, such corporate activities would hardly be evidence of "evil motive" or "intent to defraud" as required to show "actual malice." In fact, one would expect the OCF marketing department to have practical concerns about public relations concerning Kaylo, and its accountants and quality control supervisors to run cost-benefit analyses on potential solutions. Yet, plaintiffs/appellees argue here that the company's focus on costs and public relations was not normal, but rather demonstrated the company's affirmative attempts to deceive Kaylo consumers and the public and was evidence of "a bunker mentality."
The only rational way to interpret plaintiffs/appellees' argument is to recognize its fundamental premise: that OCF acted in bad faith because it did not remove Kaylo from the market instantly and completely in the mid-1960's. Absolutely nothing in the record or in the state of the art medical or industrial knowledge of the time supports such an premise. No one in 1968, not even the medical experts who were researching and discovering the links between asbestos and cancer, believed, or at least voiced any belief, that asbestos needed to be immediately eliminated entirely. While in hindsight taking Kaylo off the market in the mid-1960's may have been prudent, in no way does OCF's failure to take Kaylo immediately off the market at that time connote bad faith sufficient to support a punitive damages verdict.
The plaintiffs/appellees also point out that the very fact that the jury awarded punitive damages only in the case of Mr. Scruggs and not in either Mr. Hohman's or Mr. Garrett's case is telling evidence that the jury understood and applied the stringent proof of bad faith required for punitive damages. They argue that the jury must have determined that OCF's decision to market Kaylo in the late 1960's and early 1970's, long after the dangers of asbestos were well-known, was more egregious and worthy of punishment than OCF's marketing of the product in the 1950's, when both Mr. Garrett and Mr. Hohman were exposed. While the argument is clever and has some merit, the question before us is not whether the jury understood the task at hand, but whether the evidence was legally sufficient for a reasonable jury to find, by a clear and convincing standard, that OCF acted with actual malice in marketing Kaylo.
4. Conclusion: Evidence of Actual Knowledge and Bad Faith Not Legally Sufficient to Meet Clear and Convincing Evidentiary Standard
As we noted in Godwin when discussing the evidence against defendant Pittsburgh Corning Corporation, the proof before us "cuts both ways." Godwin, 340 Md. at 378, 667 A.2d at 137. Evidence of OCF's awareness of state of the art medical knowledge about asbestos includes evidence of OCF's general agreement with the state of the art knowledge that controlled and limited asbestos exposure could be safe. Evidence that OCF was concerned enough about asbestos hazards to label its Kaylo packages also demonstrates that OCF believed safe handling of asbestos would eliminate health hazards,
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