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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
>601 A.2d at 652. See also Davis v. Gordon, supra, 183 Md. at 133, 36 A.2d at 701.
In products liability actions, we have held that a plaintiff has shown "actual malice" if the plaintiff demonstrates (1) that the defendant actually knew of the defective and dangerous condition of the product at the time it left the defendant's possession or control, and (2) that, "armed with this actual knowledge, the defendant consciously or deliberately disregarded the potential harm to consumers." Zenobia, supra, 325 Md. at 462-463, 601 A.2d at 654. Thus, we require proof of a "bad faith decision to market the product, knowing of the defect and danger, in conscious or deliberate disregard of the threat to the safety of the consumer." Ibid.
Moreover, we have held that to recover punitive damages in any tort action, the plaintiff must establish the requisite malice by clear and convincing evidence. Zenobia, supra, 325 Md. at 469, 601 A.2d at 657. See also Eagle-Picher v. Balbos, supra, 326 Md. at 234, 604 A.2d at 472; Owens-Illinois v. Armstrong, supra, 326 Md. at 128-129, 604 A.2d at 57.
The City argues that it has "clearly and convincingly . . . met the requirements for punitive damages set forth in Owens-Illinois v. Zenobia." To recover on its punitive damages claim, the City was required to show that Asbestospray actually knew, during the relevant time period, that its asbestos-containing fireproofing presented a serious health risk to ordinary building users. See Kansas City v. Keene Corp., supra, 855 S.W.2d at 375 ("Evidence of a generalized knowledge that asbestos poses a danger to a narrow class of unprotected persons who are exposed during the application
or removal of asbestos-containing materials in buildings will not, under the strict requirements for a submissible punitive damages case, support an inference that [defendants] had knowledge of a danger to the much broader class of persons who were merely present in such buildings at other times"); Sch. Dist. of Independence v. U.S. Gypsum Co., supra, 750 S.W.2d at 446 ("To make a submissible case for punitive damages, the School District was required to produce evidence that USG had actual knowledge of the product Audicote's propensity to release asbestos fibers"); Catasauqua Area School Dist. v. Raymark Industries, Inc., supra, 662 F. Supp. at 70 (knowledge of the risks of constant occupational exposure to asbestos was insufficient to prove outrageous behavior in an action for the costs of asbestos removal). The City was further required to prove that, armed with this knowledge, Asbestospray proceeded to market its fireproofing product in bad faith. The evidence introduced at trial, however, fell far short of the standard.
The bulk of the City's evidence against Asbestospray was contained in correspondence between corporate officer Herbert L. Levine and other members of the Sprayed Mineral Fiber Manufacturers Association ("the Association"). The Association was formed by asbestos manufacturers in 1965 for the purpose of furthering the research and development of sprayed mineral products and publicizing and advertising the uses and merits of the products of the sprayed mineral fiber industry. Levine variously served as the Association's president and its treasurer before the organization was dissolved in the mid-1970's, and much of the correspondence introduced as evidence against Asbestospray was generated by Levine while he served as president.
In 1961, Levine became the patient of Dr. Irving
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