Mr. and Mrs. Saville filed suit against approximately
thirty (30) companies claiming negligence, strict liability, loss of consortium,
conspiracy and fraud relating to Mr. Saville’s asbestosis, lung cancer, and
mesothelioma. A judgment against Scapa was entered in the amount of $3,000,000.
The case was remanded on appeal to the Court of Special Appeals and pursuant to
the new trial Mr. Saville obtained a verdict in the amount of $1,718,000 against
Scapa. Saville then appealed the second verdict. The Court of Special Appeals
affirmed the Circuit Court’s judgment in finding that there was sufficient
evidence that Scapa’s product was the proximate cause of Mr. Saville’s injuries
to support the trial court’s denial of Scapa’s motions for judgment and for
JNOV. Therefore, on appeal to the Court of Appeals, Scapa presented the question
of whether Mr. Saville presented sufficient evidence to satisfy the “frequency,
regularity, proximity” test for substantial factor causation as to its products.
Significantly, Scapa challenged the Court of Special
Appeals’ application of the “frequency, regularity, proximity” test,
enunciated in Eagle-Picher v. Balbos, which
is the common law evidentiary standard used for establishing
substantial-factor causation in negligence cases alleging asbestos exposure.
The Court’s task upon Scapa’s challenge to the sufficiency of Mr. Saville’s
evidence was to determine whether the Court of Special Appeals judgment,
upholding the trial court’s dismissal of Scapa’s Motions for Judgment and
for JNOV, on Mr. Saville’s claims was in error.
In Balbos, the Court
described how the court would assess “whether the exposure of any given
bystander to any particular supplier’s product [would] be legally sufficient
to permit a finding of substantial-factor causation,” noting that:
The finding involves the inter-relationship between the
use of a Defendant’s product at the workplace and the activities of the
Plaintiff at the workplace. This requires an understanding of the physical
characteristics of the workplace and of the relationship between the
activities of the direct users of the product and the bystander plaintiff.
Within that context, the factors to be evaluated include the nature of the
product, the frequency of its use, the proximity and distance and in time,
of a plaintiff to the use of a product, and the regularity of the exposure
of that Plaintiff to the use of that product.
Relying on the Balbos
“frequency, regularity, proximity” test, the Court of Special Appeals held
that there was “more than enough circumstantial evidence to conclude that
[Mr. Saville] performed a significant amount of work on Scapa’s product . .
. [that Mr. Saville] was significantly exposed to Scapa’s product . . . and
that [the jury] did not contradict itself when it found [Scapa] liable and
the [c]ross-[d]efendants not liable.”
Scapa asserted that “[t]he Court of Special Appeals’s
published opinion in Saville II stands for
the proposition that a plaintiff in an asbestos-product liability case may
reach the jury if he establishes the mere possibility of an undefined,
unquantifiable exposure to asbestos[,]” and that the intermediate appellate
court’s holding “waters down” the Balbos
test. The Court of Appeals disagreed. The evidence was that Mr. Saville
regularly handled and/or worked in arms length to Scapa’s
asbestos-containing products on a daily basis for at least one year, and
this was legally sufficient to permit a jury question on proximate cause
and, therefore, the denial of Scapa’s motions for judgment and JNOV were not
in error. In addition, the “frequency” prong of the
Balbos test requiring “frequency of use [of the product]” in the
Plaintiff’s workplace was met by the evidence. The evidence presented
supported Mr. Saville’s periodic, i.e., regular, exposure to Scapa’s
asbestos-containing products and respirable asbestos fibers emanating from
their upkeep; thus, it was sufficient to warrant jury consideration.
The last prong of the Balbos
test requires evidence of the proximity of the plaintiff, “in distance and
in time,” to the use of the product. Scapa contended that Mr. Saville
presented no evidence that he was in the proximity of respirable asbestos
fibers released from Scapa’s product. The Court found that, based upon the
evidence, an inference could have been reasonably drawn from the jury about
the proximity of Mr. Saville to Scapa’s asbestos-containing product.
Notably, the Court held that its holding on the
sufficiency of the evidence question was not as emphatically stated as the
Court of Special Appeals’ holding because the Court merely concluded that
the evidence was sufficient to survive the motions, but declined to state
that the evidence “conclusively established” proximity as a matter of law.
Nonetheless, the Court of Special Appeals did not err in affirming the
denial of Scapa’s motions for judgment and JNOV, nor did that court misapply
or misinterpret the rigors of the Balbos
test.
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