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Eagle-Picher Industries Inc. v. Balbos8/29/1990
te, however, that Eagle-Picher never returned to this contention and never sought or obtained a ruling by the trial judge. Immediately prior to that statement, there was a lengthy discussion which focused on who attended the deposition and who were members of ATI. Immediately after the above-recited Eagle-Picher objection, all counsel immediately returned to a further lengthy discussion (consuming at least 20 pages of trial transcript), focusing totally upon who attended and against whom the deposition was being offered, and thus diverting attention away from any question of Fagen's availability that might have otherwise been subsumed within the general complaint about lack of foundation. Because the trial judge never had any practical opportunity to correct any error as now alleged, we will not decide the issue. See Braxton, 57 Md. App. at 549, 470 A.2d 1327.
We point out, however, that the case Eagle-Picher cites in support of its argument, Myers v. Alessi, 80 Md. App. 124, 560 A.2d 59, cert. denied, 317 Md. 641, 566 A.2d 101(1989), is clearly distinguishable from the case before us. The plaintiffs in that case attempted to enter into evidence the transcript of testimony by a medical expert who lived outside of Maryland. The trial court ruled that the testimony was inadmissible, and we affirmed. A major reason for our decision, however, was that the defendant needed to cross-examine the medical expert. Id. at 139, 560 A.2d 59. In the case sub judice, Eagle-Picher has expressed no such need to cross-examine Doris Fagen. Appellants have yet to assert any harm resulting from the non-presence of Doris Fagen. Assuming, arguendo, that the subject objection
was preserved, any error surrounding the admission was harmless.
B. Relevance of ATI Minutes
Eagle-Picher also argues that, because it was neither a member of ATI nor an asbestos tile manufacturer, the ATI minutes were not relevant as to it. According to Eagle-Picher, "Tarring Eagle-Picher with the same brush as the ATI members by admitting this material in evidence against it was error warranting reversal." In the jury instruction quoted above, however, the trial judge clearly distinguished between the members of ATI and those non-members, like Eagle-Picher, who simply attended Fagen's deposition. The judge emphasized that the ATI minutes were only admissible against Eagle-Picher as evidence of what was known at the time of the ATI meetings and, thus, what non-ATI manufacturers could have known.
Judge Marshall Levin, in a memorandum opinion and order in another Baltimore City asbestos case, ruled that "what was known by any one manufacturer at a given point in time is relevant evidence of what was scientifically discoverable and knowable to all manufacturers of asbestos products at the same point in time." Cain v. Eagle-Picher Industries (Circuit Court for Baltimore City, Nos. 85056065, 85066065, 84319072, October 5, 1988) (memorandum opinion and order). In reaching this conclusion, Judge Levin found persuasive the reasoning in Dartez v. Fibreboard Corp., 765 F.2d 456(5th Cir. 1985). In that case, the plaintiff attempted to introduce into evidence the deposition of Johns-Manville's former medical director concerning his knowledge of the relationship between asbestos and disease. The defendant, who did not include Johns-Manville, argued that the medical director's testimony was inadmissible because, inter alia, it was irrelevant. Id. at 461. The Fifth Circuit disagreed, saying:
Defendants contend that Smith's testimony is irrelevant because it relates only to Johns-Manville. Their content
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