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Bragg v. Owens-Corning Fiberglas Corp.

August 05, 1999


Before Terry, Ruiz, and Reid, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia

(Hon. Steffen W. Graae, Trial Judge)

Argued January 8, 199

Decided August 5, 1999

Owens-Corning Fiberglas Corporation was for many years the manufacturer and distributor of Kaylo, an insulation product containing asbestos and other materials. William Bragg and Samuel Freas filed suit against Owens-Corning, seeking compensation for injuries allegedly resulting from their exposure to asbestos. *fn1 Following a lengthy, multi-phased trial, the jury rendered a verdict in favor of Bragg and Freas and awarded them $200,000 and $70,000 in damages, respectively. The trial court then denied Owens-Corning's request for judgment notwithstanding the verdict, entered judgment in favor of Bragg and Freas against Owens-Corning, and allotted pro rata credits against the awards for settlement proceeds from the Manville Personal Injury Settlement Trust ("the Manville Trust" or "the Trust"). *fn2

Bragg and Freas contend on appeal *fn3 that the trial court erred in allotting pro rata credits against the awards. Owens-Corning argues in its cross-appeals that the trial court erred in refusing to grant its motion for judgment n.o.v. Specifically, Owens-Corning maintains that the evidence was insufficient to establish that its product, Kaylo, was a "substantial factor" in causing Bragg's injury and that both Bragg and Freas failed to establish through expert testimony that Kaylo proximately caused their injuries. We find all of these arguments meritless and affirm the judgment in its entirety.

I. Proceedings in the Trial Court

The cases in the consolidated trial group were tried in five separate phases. In Phases One and Two, which focused on appellants' exposure to Owens-Corning's product and whether that exposure was a substantial contributing factor to their injuries, the jury found for appellants. In Phase Three, which concerned punitive damages, the jury rejected appellants' claim that Owens-Corning acted willfully, wantonly, or recklessly, and accordingly declined to award punitive damages. Phase Four had originally been reserved for a determination of Owens-Corning's ability to pay punitive damages; however, in light of the outcome of Phase Three, Phase Four was omitted, and the trial moved to the contribution phase, Phase Five. At the end of Phase Five, the court ruled that Owens-Corning was entitled to a pro rata set-off for appellants' share of the settlement with the Manville Trust.

A. The Evidence at Trial

Appellant Freas, who worked as a heating and plumbing contractor from 1952 until 1981, testified that he came in contact with Owens-Corning's Kaylo on several occasions throughout his career. *fn4 First, from 1955 to 1957, while working for a private contractor repairing and replacing residential boilers, he insulated boilers and the piping attached to them with Kaylo block insulation. Second, in 1958, while working for a different contractor, Freas insulated boilers and hot water storage tanks with Kaylo block insulation in at least three public schools in Montgomery County, Maryland. Third, in 1968, at L'Enfant Plaza in the District of Columbia, he installed drainage and water pipes, which were then insulated with Kaylo. *fn5

Appellant Bragg, who had been a steamfitter *fn6 since 1969, testified *fn7 that he worked at the Calvert Cliffs nuclear power plant in Maryland from 1971 to mid-1973. When he started there, he worked on the storage tanks outside the plant; then, after about a year, he began working on the general piping systems inside the various buildings. *fn8 The plant was divided into small rooms, which he described as "very clean." David Thomas, an insulator who worked at Calvert Cliffs at the same time, testified that the insulators covered the pipes and air conditioning ducts at Calvert Cliffs with Kaylo insulation, which was brought to the job site "by the tractor-trailerload."

Mr. Bragg installed boilers and ran piping at the Chalk Point power plant, also in Maryland, for five or six months during the latter part of 1973. Both Bragg and Russell Tarbox, an insulator, testified that the steamfitters and insulators worked together at Chalk Point and that, because of the open grated floors, the abundant dust released into the air from cutting the insulation circulated throughout the plant *fn9 and eventually made its way to the basement. Mr. Tarbox further stated that during 1973 and 1974 he used Owens-Corning asbestos block insulation at Chalk Point. He believed the insulation was called "Kaylo." *fn10 Paul Miller, an insulator who worked with Kaylo insulation at Chalk Point in 1964, also testified that whenever Kaylo was cut to fit a pipe, it released dust into the air.

From late 1973 until sometime in 1976, Mr. Bragg worked at the Walter Reed Army Hospital in the District of Columbia, where he did general piping work throughout the entire facility, "from the basement to the roof." While Mr. Bragg was installing piping, insulators at the same time were insulating the piping and air ducts. Mr. Bragg testified that at Walter Reed, "piled up everywhere," were boxes labeled "Kaylo."

Dr. S. David Rockoff, called as a witness by appellants, was accepted by the court "as an expert in the fields of diagnostic chest radiology and diagnosis of pneumoconiosis, the diagnosis of the disease asbestosis, and interpretation of chest radiographs, CT scans, pulmonary function tests and other relevant data to help him establish the diagnosis of asbestosis." He testified that inhaling asbestos dust results in a thickening of the pleura, one of the many layers of the walls of the lungs. Such thickening makes it difficult for the ...

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