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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
s generalized suspicions either with the Asbestospray product or with Asbestospray's own methods for application.
The City also argues that the results of dust emissions tests commissioned by the Association during the mid and late 1960's established actual knowledge that Asbestospray's product released significant amounts of asbestos dust. In fact, however, the results obtained warrant no such conclusion and do not appear to have placed Levine on notice of the risk posed to building users. The first test which the City calls to our attention was conducted in 1966 on a construction site. There is no mention of Asbestospray's product in connection with this test, nor any indication that the results would have been the same had Asbestospray's product been tested. A second test, in early 1967, examined the asbestos products of each of the four members of the Association. The products were sprayed onto a laboratory ceiling space nine feet above the floor and onto an adjacent wall. Air samples were collected after each spraying. While each of the products exceeded the established threshold limit values for fiber release, the consultants who prepared the tests rated only certain of the products unfavorably. With regard to Asbestospray's product, the report concluded that it was altogether "conceivable that the Asbestospray product . . . could be sprayed in an open building under construction using the most favorable air water gun, product flow rate and water to dry fiber ratio at airborne dust concentrations near or less than the threshold limit value of five million particles per cubic feet of air."
When the members of the Association convened to discuss these findings, no one indicated an awareness that applying the materials created a hazard to ordinary building users. Discussion at Association meetings focussed solely upon industry workers and workers in related trades, and the members resolved to institute further tests to determine the distances from spraying which could be considered safe for workers, and to develop industry-wide standards to avoid any health hazard. These decisions reflect the belief that safe conditions could indeed be created. See Angotti v. Celotex Corp., 812 S.W.2d 742, 748 (Mo. Ct. App. 1991) (stating that advice received from an expert that the company should provide technical consultation to users showed belief that products could be used safely). They do not establish actual knowledge of the hazard posed to building users.
The evidence shows that, as late as 1969, Levine did not possess the knowledge that his product, once installed, would harm occupants of a building. When requested to provide information in 1969 on the presence of respirable asbestos dust in occupied buildings, Levine responded that "we do not have any information relative to this at the moment." Concerned about the problem suggested by the inquiries, Levine called for immediate emissions testing of areas near air conditioning vents and sprayed fiber acoustical ceilings.
The Association did commission additional tests in 1970 for the purpose of "making a preliminary assessment of the probability that asbestos fibers were being added to the air stream in its passage over sprayed mineral fiber fireproofing." The tests were run inside an operating office building which had been sprayed with U.S. Mineral Product Company's CAFCO product in 1966. The report prepared for Association members concluded that "the returning air is in contact with sprayed mineral fiber fireproofing during most of its passage back to the mechanical room." The air fiber concentrations were larger than the testers had noted in buildings in which the air did not come into contact with asbestos-containing f
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