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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
ain deposition testimony was irrelevant as state of the art evidence merely because it was the testimony of an asbestos manufacturer's medical director rather than evidence from the general scientific community. Much earlier, in Babylon v. Scruton, supra, 215 Md. at 304, 138 A.2d at 378 (emphasis added), this Court held that
"a person who undertakes such manufacturing will be held to the skill of an expert in that business and to an expert's knowledge of the arts, materials, and processes. Thus, he must keep reasonably abreast of scientific knowledge and discoveries touching his product and of techniques and devices used by practical men in his trade."
Two sets of documents were admitted as state of the art evidence, and Asbestospray contends that they were not proper state of the art evidence. The first set, known as the Wetzel documents, consists of internal United States Gypsum correspondence from the late 1930's regarding a Gypsum bookkeeper who allegedly contracted asbestosis while working in the offices of one of Gypsum's manufacturing plants. The trial court admitted into evidence the Wetzel documents against all defendants, ruling that they were relevant to show state of the art. It may be true, as Asbestospray contends, that the Wetzel documents do not demonstrate actual knowledge on the part of United States Gypsum that asbestos-containing materials pose a hazard to building occupants. See Sch. Dist. of Independence v. U.S. Gypsum, 750 S.W.2d 442, 448 (Mo. Ct. App. 1988) (upholding the exclusion of the Wetzel documents on the ground that they failed to satisfy the actual knowledge standard); Sealover v. Carey Canada, 793 F. Supp. 569, 577-578 (M.D.Pa. 1992) (similarly holding that the Wetzel documents do not equate to actual knowledge). Nonetheless, as we noted in Owens-Illinois v. Zenobia, supra, 325 Md. at 444, 601 A.2d at 645, quoting Dartez v. Fibreboard Corp., supra, 765 F.2d at 461, the "actual knowledge of an individual
manufacturer is not the issue." State of the art "includes all of the available knowledge on a subject at a given time, and this includes scientific, medical, engineering, and any other knowledge that may be available." Zenobia, supra, 325 Md. at 434, 601 A.2d at 639. Thus the Wetzel evidence was admissible against Asbestospray as state of the art evidence of the danger posed by asbestos.
Second, Asbestospray complains of the admission of what is known as the Saranac documents. These documents reflect a series of animal experiments conducted in the late 1930's and early 1940's at the Lake Saranac Laboratory in New York. The experiments were performed by Dr. Leroy Gardner at the behest of numerous asbestos manufacturers, including United States Gypsum, who were interested in the health effects of exposure to asbestos dust. In 1943, Dr. Gardner issued an initial outline of his findings of a possible relationship between exposure to asbestos and malignant tumors in mice.
A review of the record reveals that, at trial, the Saranac documents were admitted only against United States Gypsum. Indeed, this point was clarified by counsel for Asbestospray upon their admission:
"Counsel: 'Admitted only against U.S. Gypsum?'
"The Court: 'Yes.'
"Counsel: They are in against USG?
"The Court: U.S. Gypsum. You folks [Asbestospray] are out of this until we bring you back."
Furthermore, the Saranac documents were clearly marked with color-coded flags indicating that they were to be admitted only against United States Gypsum, and the jury was ex
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