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Eagle-Picher Industries Inc. v. Balbos8/29/1990
bers from the products substantially contributed to the claimed mesothelioma of each plaintiff.
The judge instead instructed the jury as follows with regard to the "substantial factor" issue:
In order for a plaintiff to recover against a particular defendant certain things must . . . be proved by the
plaintiffs by a preponderance of the evidence. It must be shown that a product manufactured or supplied by that defendant, by a particular defendant, was a substantial factor in causing the death.
On the other hand, the mere fact that a defendant's product was a substantial factor standing alone is not enough. More must be shown because a manufacturer or supplier is not an insurer of its product . . . .
There may be more than one cause of an injury or death. That is, several negligent acts or several unreasonably dangerous products may work together. Each person whose negligent act or unreasonably dangerous product has been a substantial cause of the injury or death is responsible.
Celotex contends that this instruction gave the jury no guidance in evaluating the evidence. We disagree and hold that the instruction was proper.
We note first that a trial judge need not grant a requested instruction if the matter is fairly covered by the instructions actually given. Md. Rule 2-520(c). In addition, a litigant may only "have his or her theory of the case presented to the jury if that theory is a correct exposition of the law and if there is evidence in the case that supports the theory." Myers v. Alessi, 80 Md. App. 124, 130-31, 560 A.2d 59(1989) (citing The Sergeant Co. v. Pickett, 285 Md. 186, 401 A.2d 651(1979)) (emphasis added).
With those principles firmly in mind, we now compare the requested instruction with that actually given.
The requested instruction may be summarized as follows: (1) the product of a particular defendant, (2) was a substantial factor in causing the plaintiffs' injuries, and (3) each plaintiff worked in proximity to these products with frequency and regularity. We believe the trial judge's instruction clearly covered the first two portions of the requested instruction fairly.
The judge's instruction did not, however, cover the third portion. We believe the judge was correct in omitting any mention of proximity, frequency, and regularity because the evidence did not support this "theory." There was no need for appellees to prove that the decedents were in proximity to any defendant's asbestos products because, as we pointed out in the previous section (Section 4, supra), an expert had testified that asbestos dust drifts over great distances.
In addition, appellees were not required to show that the decedents were exposed to the asbestos products frequently or with any degree of regularity. Dr. Nicholson testified that " or the asbestos cancers we have no data that would indicate there is a level below which . . . there is no risk." (Emphasis added.) A short while later, the same witness said that "mesothelioma can occur from extremely low exposures." Because the decedents died of mesothelioma, an asbestos-related cancer, requiring appellees to prove frequency and regularity of asbestos exposure would have contradicted this expert medical evidence.
We also note that the instruction that Celotex requested was based upon language from Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986). As we noted in the previous section (see Section 4, supra), Lohrmann is distinguishable from the case before us in that the p
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