Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
I have no quarrel with any of the substantive conclusions of the majority opinion except the one reached in Part III.F., pertaining to the punitive damages award against Owens-Corning Fiberglas Corporation ("OCF").4 With respect to Part III. F., I am firmly of the view that there was ample evidence presented to the jury to justify its verdict awarding punitive damages against OCF and in favor of appellee Scruggs. Accordingly, I dissent from that part of the opinion and judgment.
In a products liability case, an award of punitive damages may be sustained only if the evidence adduced by the plaintiff establishes "the equivalent of the 'evil motive,' 'intent to defraud,' or 'intent to injure,' which generally characterizes 'actual malice,' [i.e.] actual knowledge of the defect and deliberate disregard of the consequences." Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 462, 601 A.2d 633, (1992). The actual knowledge component of the test is satisfied where there is, on the part of the defendant, a "willful failure to know," that is, where the defendant "believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth." State v. McCallum, 321 Md. 451, 458, 583 A.2d 250, 253 (1991) (Chasanow, J. concurring). Thus, in order for the plaintiff to prevail on the issue of punitive damages, the plaintiff must establish that the defendant, having the requisite knowledge, nevertheless, acted in bad faith in distributing its product. ACandS v. Godwin, 340 Md. 334, 358-9, 667 A.2d 116, 128 (1995).
Whether the defendant had the requisite knowledge and acted in bad faith are questions of fact to be determined by the trier of fact, in this case, the jury. Such matters are not matters of law reserved for the trial court and, thus, most assuredly, are not matters to be resolved by an appellate court. Moreover, those facts need not be established by direct evidence. Because a party's state of mind is peculiarly within the power of that party to disclose, or not, as he or she chooses, the other party cannot prove that party's knowledge or bad faith except by circumstantial evidence. Certainly, the party whose actions are under scrutiny cannot, and should not, be permitted, by requiring that the proof be by direct evidence, to determine the outcome of the inquiry. The issue for our determination then is whether the evidence the appellee Scruggs adduced as to OCF's state of mind and knowledge was sufficient to sustain the jury's award of punitive damages. As to that issue, the jury had before it the following evidence in addition to that set out in the majority opinion. See 1996 Md. LEXIS 90, *62-75, 343 Md. 500, , 682 A.2d 1143, (1996).
The appellee Scruggs, an insulator for a time, as to whom the hazard from exposure was greatest, and a by-stander thereafter, first was exposed to asbestos in 1968. By that time, OCF was well aware of the dangers associated with asbestos. It had known, by that time for more than two decades, that dust containing asbestos should not be breathed and that if it were, it represented a real danger because it was a carcinogen.
OCF had knowledge, through its parent companies, that asbestos was dangerous as early as 1938. In that year, one of its parent companies, Owens-Illinois, was informed, by letter from a Doctor from the Saranac Laboratory that asbestos "is known to produce fibrosis of the lungs also cause fibrosis in other tissues when injected in sufficient quantities." The year before, the other parent, Corning Glass Works, quoted the same Doctor's work to the same effect. That OCF had direct knowledge of the hazardous nature of asbestos was
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