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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
J. Selikoff, a physician and noted researcher of the health effects of asbestos inhalation. Throughout the 1960's, Selikoff kept Levine apprised of the increasing scientific awareness of the carcinogenic properties of asbestos dust. Levine passed this information on to the other members of the Association in a series of memoranda.
It is clear from the information given by Selikoff to Levine that the focus of the doctor's research during the 1960's was upon the risk to workers in asbestos manufacturing plants and to workers in trades regularly utilizing asbestos products, such as installers. The early Selikoff studies introduced into evidence and cited by the City in support of its punitive damages claim contain no scientific data on the risk of asbestos exposure in non-occupational settings. For example, in March 1966, Levine wrote a memorandum to Association members and attached two articles citing Selikoff's findings. The articles refer to cancer rates among "asbestos workers" but not ordinary building users. These studies simply do not concern asbestosis or cancer rates among persons occupying buildings where asbestos products had been installed.
In May 1966, Levine wrote members of the Association that Selikoff had been in contact with an architect in Canada who called to Selikoff's attention
"the fact that using sprayed fibre as a fireproofing medium in return air plenums, subjects the people occupying the building to asbestos dust, by virtue of erosion of that material during the use of the plenum chamber."
Although the City argues that relating Selikoff's concern indicates actual knowledge on the part of Levine, a further reading of this memorandum leads to the opposite conclusion. In the memorandum, Levine immediately dismisses Selikoff's story as impossible, stating that he
"pointed out to Dr. Selikoff how erroneous this was, by virtue of the fact that the filtering apparatus in the air conditioning system would catch any dust, and furthermore, we treated the sprayed minerals to prevent this erosion and dusting."
The evidence indicates that, during the relevant time period, Levine believed that his product could be properly sealed to prevent fiber release. At trial, Levine testified on cross-examination that the company had "always stipulated from the time we went into business that every exposed installation of Asbestospray irrespective of what it was used for had to have a seal coat on it." He also spoke of the effectiveness of the sealant with regard to installations of the product in his own home. Viewed in its entirety, this evidence in no way establishes the malice necessary under Maryland law to recover punitive damages, even if Levine's belief about encapsulation may have been erroneous.
In 1969, Levine attended a conference of contracting plasterers and lathers at which Selikoff voiced his fears regarding the "careless" spraying of asbestos insulation and fireproofing material. Selikoff lectured that, immediately after asbestos insulation has been sprayed, loose particles surround the
building, possibly endangering large numbers of persons. Selikoff, however, did not discuss the subject of asbestosis or cancer rate increases among either building occupants or the population in general. See Kansas City v. Keene Corp., supra, 855 S.W.2d at 374-375 (rejecting Selikoff's statements as insufficient to establish knowledge of the health hazards to users of a building). Rather, at the conference, Selikoff argued, not for a ban on sprayed asbestos products, but for the immediate development of "stringent" regulations for their sprayed application. There is nothing in this evidence to link Selikoff'
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