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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
he case, was not such as to require a judgment in favor of OCF as a matter of law.
After conceding that the evidence in this case "'cuts both ways,'" 1996 Md. LEXIS 90, *76, 343 Md. 500, , 682 A.2d 1143, (1996) (quoting Godwin, supra, 340 Md. at 378, 667 A.2d at 137), the majority observes:
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, and that OCF intended to make workers aware of the risks of Kaylo when improperly handled. Evidence that OCF was actively working to preserve its market share of thermal insulation by designing an asbestos-free Kaylo provides evidence that OCF was worried about the health hazards asbestos presented and affirmatively sought to protect its users.
Id. Then noting that the standard of proof is clear and convincing evidence, which "requires the plaintiff to prove much more than negligence," Zenobia, supra, 325 Md.at 465, 601 A.2d at 655, the majority offers its view of the state of the evidence in this case:
"At all relevant times the widespread belief was that the extent of the health risk depended, in large part, on the length and intensity of exposure.... It may be that a jury would believe that the corporate decision to adopt health warnings came too late and, even then, that it was motivated only by the desire to minimize tort liability. It may also be that a jury would believe that PCC was not only negligent in these respects, but that it was grossly negligent. These possible inferences or conclusions, however, do not demonstrate that PCC made a bad faith decision to market Uniberstos [Kaylo] in conscious or deliberate disregard of the threat to the safety of the consumer. Plaintiffs have not shown by clear and convincing evidence that ... PCC did not in good faith believe that its recommendations for exhaust ventilation, ... housekeeping, and use of respirators were reasonable protections for users."
1996 Md. LEXIS 90 at *78-79, 682 A.2d at (quoting Godwin, 340 Md. at 378-79, 667 A.2d at 137).
The majority focuses only on the evidence and the permissible inferences from that evidence favorable to OCF. It totally fails to consider the evidence which it acknowledges is favorable to appellee Scruggs or the inferences that evidence produces. Thus, the majority does not acknowledge that it was possible for the jury to draw an inference unfavorable to OCF from the evidence that it had before it indicating that OCF began the distribution of a product containing asbestos after it had amassed tremendous evidence of the dangers associated with asbestos and that, prior to the exposure of the appellee to asbestos, OCF had reason to question both the accuracy of the applicable threshold limit value, and whether the dust generated by cutting or sawing its product was sufficient to expose users to those dangers. Certainly, a jury with that evidence could find that OCF acted in bad faith in continuing to distribute Kaylo without further study; it could have concluded that OCF, remaining willfully blind to the suspected consequences of continued use of asbestos, distributed it in conscious disregard of those consequences. Nor was the jury bound to draw the conclusions that the majority does. In any event, it is clear that the majority simply fails to explain its conclusion that the evidence is insufficient.
Moreover, the majority mischaracterizes the record
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