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Eagle-Picher Industries Inc. v. Balbos8/29/1990
hat a reasonable manufacturer or supplier of a particular asbestos product should have provided in terms of warnings and precautions in view of the hazard at and before the time of the plaintiffs' last mesothelioma-producing asbestos exposure.
Compliance with suggested standards, regulations or recommendations may be considered by you as evidence of whether or not a defendant was free of negligence in marketing and labeling its product.
(Emphasis added.)
Similarly, appellants requested that the court instruct the jury with regard to punitive damages as follows:
In evaluating plaintiffs' punitive damage claim you must only consider conduct which occurred at or before each plaintiff's last mesothelioma-producing exposure to a particular defendant's product. Anything done after that date may only be considered to the extent it bears upon earlier conduct within the relevant punitive damages time frame.
Thus, even if you find that a particular defendant committed a bad act for which punitive damages would be appropriate, no such damages may be awarded if the act was committed after plaintiffs' last mesothelioma-producing asbestos exposure.
(Emphasis added.)
The instructions the trial judge gave on the issues of duty to warn and punitive damages were as follows:
A manufacturer or a supplier of a product is negligent if it knew or through the exercise of reasonable care should have known that the product was or was likely to be dangerous to the persons whom it reasonably expected to use the product, had no reason to believe that those
persons would know of the danger and failed to warn them of that danger.
Now, in order for there to be a right to punitive damages, in order for the plaintiffs to have the right to recover punitive damages, there must be conduct of an extraordinary and outrageous nature. That is, there must be wanton and reckless conduct. Wanton and reckless conduct is more than mere negligence. Wanton and reckless conduct requires direct evidence of substantial knowledge on the part of the manufacturer that the product is or is likely to become dangerous and a gross indifference to that danger.
Eagle-Picher contends that the court's refusal to give the requested instructions constituted reversible error. We disagree. As to the language regarding the "last mesothelioma-producing asbestos exposure," we believe that our recent decision in Myers v. Alessi, 80 Md. App. 124, 560 A.2d 59(1989), is controlling. We said in that case that " litigant is entitled to 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." Id. at 130-31, 560 A.2d 59(citing The Sergeant Co. v. Pickett, 285 Md. 186, 401 A.2d 651(1979) (emphasis added). We do not believe that Eagle-Picher's instruction regarding the "last mesothelioma-producing asbestos exposure" is a correct exposition of the law. While no Maryland court has addressed this precise issue, Judge Marshall A. Levin, the asbestos judge/master for the Circuit Court for Baltimore City, denied an asbestos-producing defendant's motion in limine to preclude state of the art evidence after the date of the last exposure to the defendant's product. In his order, Judge Levin relied heavily on Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 605(1987), which is instructive.
In Lockwood the evidence showed that the plaintiff was exposed to asbestos in his work in shipyards in Washington State from 194
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