Harper v. Alltite Gaskets et al
Filing
617
ORDER granting in part and denying in part 517 Motion by Hopeman Brothers, Inc. for Summary Judgment. Signed by Judge George Levi Russell, III on 5/5/14. (c/m 5/6/14 jnls, Deputy Clerk) Modified on 5/6/2014 (jnls, Deputy Clerk).
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
George L. Russell, III
United States District Judge
101 West Lombard Street
Baltimore, Maryland 21201
410-962-4055
May 5, 2014
MEMORANDUM TO COUNSEL RE:
Carol Johnson Harper, et al. v. Anchor Packing
Company, et al.
Civil Action No. GLR-12-460
Dear Counsel:
Pending before the Court is Defendant’s, Hopeman Brothers, Inc. (“Hopeman”), Motion for
Summary Judgment. (ECF No. 517). The issues have been fully briefed, and Plaintiffs’ request for a
hearing (ECF No. 597) is denied as to this Defendant.1 For the reasons that follow, the Court will
grant Hopeman’s Motion with respect to Counts II, IV, and V, and deny it with respect to Counts I and
III. The Court will also grant Hopeman’s Motion with respect to punitive damages.
On January 12, 2011, Plaintiffs commenced this lawsuit against Hopeman, as well as other
Defendants, in the Circuit Court for Baltimore City, alleging injuries sustained as a result of Mr.
Harper’s alleged exposure to asbestos-containing products at the Key Highway Shipyard (“Key
Highway”) in Baltimore, Maryland. On February 14, 2012, Defendant General Electric removed the
lawsuit to this Court. (ECF No. 1). Co-Defendants/Third-Party Plaintiffs have filed cross
claims/third-party complaints alleging Hopeman was solely or partially responsible for Mr. Harper’s
injuries and requesting contribution. Plaintiffs allege Mr. Harper was exposed to asbestos dust from
Marinite panels that Hopeman supplied.
Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the
moving party demonstrates that there is no genuine dispute as to any material fact, and the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). If the nonmoving party has failed
to make a sufficient showing on an essential element of her case where she has the burden of proof,
“there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering Hopeman’s
1
Local Rule 105.6 provides that “[u]nless otherwise ordered by the Court . . . all motions shall
be decided on the memoranda without a hearing.” Local Rule 105.6 (D.Md. 2011) (emphasis added).
“[R]ule 78 of the Federal Rules of Civil Procedure, the source of authority for [the local rule], makes it
clear that hearings on motions are to be in the discretion of the district courts . . . .” Coakley &
Williams Const., Inc. v. Structural Concrete Equip., Inc., 973 F.2d 349, 352 (4th Cir. 1992) (alteration
in original) (citing U.S. Fidelity & Guaranty Co. v. Lawrenson, 334 F.2d 464, 466-67 (4th Cir. 1964));
see Fed.R.Civ.P. 78(b) (“By rule or order, the court may provide for submitting and determining
motions on briefs, without oral hearings.”) (emphasis added). Furthermore, “[t]he wisdom of leaving a
hearing to the discretion of the district court is obvious.” Coakley, 973 F.2d at 352 (citing Lawrenson,
334 F.2d at 466-67).
Motion, the Court will accept Plaintiffs’ evidence as true and will draw all reasonable inferences in
their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S. H. Kress
& Co., 398 U.S. 144, 158-59 (1970)). Also, because this case was removed, the Court will consider
Maryland substantive law. See Ariz. v. Manypenny, 451 U.S. 232, 241-42 (1981) (“The act of
removal permits a trial upon the merits of the state-law question free from local interests or
prejudice.”) (emphasis added).
Plaintiffs allege negligence (Count I), breach of warranty (Count II), product defect/strict
liability (Count III), tortious civil conspiracy (Count IV), and fraudulent concealment (Count V). (See
Am. Compl. ¶¶ 3-7, ECF No. 212). Plaintiffs requested punitive damages for Counts I, III, and V.
(See id.). Because there is no genuine dispute of material fact for Counts II, IV, and V, the Court will
grant summary judgment in favor of Hopeman with respect to those Counts. To the contrary, because
there is a genuine dispute as to whether Mr. Harper was regularly and proximately exposed to dust
from asbestos-containing Marinite panels supplied or installed by Hopeman, the Court will deny
summary judgment with respect to Counts I and III. Also, because Plaintiffs proffer no evidence that
Hopeman acted with actual malice, the Court will grant summary judgment in favor of Hopeman with
respect to punitive damages.
There is no genuine dispute as to any material fact for fraudulent concealment because
Plaintiffs present no facts supporting any of the elements needed to establish a cause of action.2
Accordingly, the Court will grant summary judgment in favor of Hopeman with respect to Count V.
As to tortious civil conspiracy, because Plaintiffs present no facts to demonstrate that Hopeman agreed
or had an understanding with other persons, there is no genuine dispute as to any material fact for this
claim.3 Accordingly, the Court will grant summary judgment in favor of Hopeman with respect to
Count IV.
As to breach of warranty, Plaintiffs’ claim is barred by the statute of limitations. As relevant to
Plaintiffs’ claim, Section 2-725 of the Commercial Law Article of the Annotated Code of Maryland
provides, in pertinent part:
2
Maryland courts have formulated five elements of a cause of action for fraudulent
concealment:
(1) [T]he defendant owed a duty to the plaintiff to disclose a material
fact; (2) the defendant failed to disclose that fact; (3) the defendant
intended to defraud or deceive the plaintiff; (4) the plaintiff took action
in justifiable reliance on the concealment; and (5) the plaintiff suffered
damages as a result of the defendant’s concealment.
Ademiluyi v. PennyMac Mortg. Inv. Trust Holdings I, LLC, 929 F.Supp.2d 502, 531 (D.Md. 2013)
(alteration in original) (quoting Blondell v. Littlepage, 991 A.2d 80, 94 (Md. 2010)) (internal quotation
marks omitted).
3
Maryland courts define tortious civil conspiracy as “a combination of two or more persons by
an agreement or understanding to accomplish an unlawful act or to use unlawful means to accomplish
an act not in itself illegal, with the further requirement that the act or the means employed must result
in damages to the plaintiff.” Hoffman v. Stamper, 867 A.2d 276, 290 (Md. 2005) (quoting Green v.
Wash. Sub. San. Comm’n, 269 A.2d 815, 824 (Md. 1970)) (internal quotation marks omitted).
2
(1) An action for breach of any contract for sale must be commenced
within four years after the cause of action has accrued. By the original
agreement the parties may reduce the period of limitation to not less than
one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the
aggrieved party's lack of knowledge of the breach. A breach of warranty
occurs when tender of delivery is made . . . .
Md. Code Ann., Com. Law § 2-725 (West 2014) (emphasis added). Based on the undisputed facts in
the record, there is no evidence from which a reasonable jury could conclude Hopeman delivered any
product to the Shipyard within the four years before Plaintiffs commenced this action. Thus, the Court
will grant summary judgment in favor of Hopeman with respect to Count II.
To survive summary judgment as to the negligence and strict products liability claims,
Plaintiffs must create a genuine dispute with respect to two issues. First, there must be a genuine
dispute as to whether Mr. Harper was regularly and proximately exposed to dust from asbestoscontaining Marinite panels that were frequently used at the Shipyard. See Eagle-Picher Indus., Inc. v.
Balbos, 604 A.2d 445, 460 (Md. 1992) (finding that when determining whether exposure to asbestos
was a substantial factor in causing injuries to a plaintiff, “the factors to be evaluated include the nature
of the product, the frequency of its use, the proximity, in 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”). Second,
there must also be a genuine dispute as to whether Hopeman sold or installed the asbestos-containing
Marinite panels that generated the dust to which Mr. Harper was exposed. See id. at 462 (finding that
regular and proximate contact between the plaintiff and the asbestos-containing insulation was not
enough to hold the defendant liable because the plaintiff also had the burden of proving that the
defendant was responsible for the insulation as a seller or an installer).
The witness testimony before the Court is enough to create a genuine dispute of material fact as
to whether Hopeman Marinite panels4 were a substantial factor in causing Mr. Harper injuries. In
Owens-Corning Fiberglas Corp. v. Garrett, the Court of Appeals of Maryland concluded there was
sufficient evidence to permit a finding of substantial-factor causation where two witnesses, unfamiliar
with the plaintiff, testified that a specific type of asbestos-containing pipecovering was present at the
facility at the time the plaintiff worked there, in conjunction with a third witness who testified that the
plaintiff was regularly and proximately exposed to dust from pipecovering. 682 A.2d 1143, 1156-57
(Md. 1996).
Here, Mr. Zeleny, a joiner at Key Highway during the time Mr. Harper worked there, testified
that he frequently used Marinite panels to outfit ships and that the Marinite panels he used were
delivered in Hopeman trucks. (Zeleny Dep. 15:2-3, 24:10-14, Nov. 23, 1999, ECF No. 569-6); (see
also Def.’s Mot. Summ. J. Ex. 3, at 1, ECF No. 517-6) (identifying the dates in which Mr. Harper
worked at Key Highway). Moreover, Mr. Zeleny testified that Hopeman “supplied everything” used to
outfit the living spaces of the ships at Key Highway, (Zeleny Dep. 44:11-12), and Marinite panels were
4
Hopeman has conceded that Marinite panels contained asbestos. (Pls.’ Opp’n Defs.’ Mot.
Summ. J. Ex. 7, at 4, ECF No. 569-7).
3
among the products used for this purpose, (Def.’s Reply Pls.’ Opp’n Mot. Summ. J. Ex. 10, ECF No.
585-5).
Further, Mr. Martin, one of Mr. Harper’s coworkers, testified that Hopeman installed paneling,
(Davis Dep. 72:19-73:2, Aug. 27, 2013, ECF No. 585-1), and that Mr. Harper worked in proximity to
Hopeman personnel on at least five occasions in the summer of 1970, 1971, or 1972 (id. at 80:1581:12). Additionally, Mr. Martin, without identifying a specific contractor, testified that Mr. Harper
worked around contractors installing panels, (id. at 91:2-8), and that the panels “had to be cut to fit,”
(id. at 88:16-17). Thus, the Court concludes that Plaintiffs have produced sufficient evidence to permit
a jury to reasonably infer that Mr. Harper was regularly and proximately exposed to dust from
asbestos-containing Marinite panels supplied or installed by Hopeman. Accordingly, the Court will
deny Hopeman’s Motion with respect to Counts I and III.
Finally, Hopeman moves for summary judgment with respect to Plaintiffs’ claims for punitive
damages. “In a non-intentional tort action, the trier of facts may not award punitive damages unless
the plaintiff has established that the defendant’s conduct was characterized by . . . ‘actual malice.’”
Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 652 (Md. 1992). Regardless of whether the cause of
action for compensatory damages is based on negligence or strict liability, for actual malice to be
found in a products liability case, “the plaintiff must prove (1) actual knowledge of the defect on the
part of the defendant, and (2) the defendant’s conscious or deliberate disregard of the foreseeable harm
resulting from the defect.” Id. at 653. Plaintiffs proffer no evidence to support either of these two
elements. Therefore, they are not entitled to punitive damages for Counts I and III.
For the foregoing reasons, Hopeman’s Motion for Summary Judgment (ECF No. 517) is
GRANTED in part and DENIED in part. The Motion is GRANTED with respect to Counts II, IV, and
V, and DENIED with respect to Counts I and III. Hopeman’s Motion is also GRANTED with respect
to punitive damages. Despite the informal nature of this memorandum, it shall constitute an Order of
the Court, and the Clerk is directed to docket it accordingly.
Very truly yours,
/s/
_______________________
George L. Russell, III
United States District Judge
4
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