Haney v. 3M Company et al

Filing 961

MEMORANDUM AND ORDER GRANTING 849 Motion of Hopeman Brothers, Inc. for Summary Judgment. DISMISSING AS MOOT 687 Cross-Claim of Hopeman Brother's, Inc., against Owens-Illinois, Inc. Signed by Judge Marvin J. Garbis on 8/10/2015. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARLES DEAN HANEY,
*
Individually, and as Personal
Representative of the Estate of *
Charles Ambrose Haney, et al.,
*
Plaintiffs
*
vs.
*
3M COMPANY, et al.,
*
Defendants
*
*
*
*
*
*

CIVIL ACTION NO. MJG-12-1396

*

*

*

*

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT [HOPEMAN]
The Court has before it Motion of Defendant Hopeman
Brothers, Inc. ("Hopeman"), for Summary Judgment [ECF No. 849],
and the materials submitted relating thereto.

The Court finds a

hearing unnecessary.

I.

BACKGROUND
On February 8, 2012, Charlie Ambrose Haney ("Haney") filed

the instant lawsuit in the Circuit Court for Baltimore City,
Maryland against eighty-four Defendants (one of which was
Hopeman) alleging damages due to exposure to asbestos.

On May

8, 2012, the case was removed to this Court based upon the
federal officer removal provision, 28 U.S.C. § 1442(a)(1).
Haney died on July 1, 2012 from malignant mesothelioma
caused by exposure to asbestos.

On October 13, 2013, Plaintiffs

Charles Dean Haney, individually and as personal representative
of the Estate of Haney, Jeffrey William Haney, and John Henry
Haney (collectively "Plaintiffs"), filed the First Amended
Complaint ("FAC") against fifty-six Defendants (one of which was
Defendant Hopeman Brothers, Inc.), asserting claims in five
Counts:
Count I

Strict Liability

Count II

Breach of Warranty

Count III

Negligence

Count IV

Aiding and Abetting and Conspiracy

Count V

Wrongful Death

By the instant Motion, Defendant Hopeman Brothers, Inc.
("Hopeman") seeks summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.

II.

SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the

pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

The

Court may look at the evidence presented in regard to a motion

2

for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
Thus, in order "[t]o defeat a motion for summary judgment,
the party opposing the motion must present evidence of specific
facts from which the finder of fact could reasonably find for
him or her."

Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md.

1999) (emphasis added).

However, "self-serving, conclusory, and

uncorroborated statements are insufficient to create a genuine
issue of material fact."

Int'l Waste Indus. Corp. v. Cape

Envtl. Mgmt., Inc., 988 F. Supp. 2d 542, 558 n.11 (D. Md. 2013);
see also Wadley v. Park at Landmark, LP, 264 F. App'x 279, 281
(4th Cir. 2008).
When evaluating a motion for summary judgment, the Court
must bear in mind that the "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed 'to secure the just, speedy and inexpensive

3

determination of every action.'"

Celotex, 477 U.S. at 327

(quoting Fed. R. Civ. P. 1).

III. BREACH OF WARRANTY, AIDING AND ABETTING, PUNITIVE DAMAGES
In the FAC, Plaintiffs present claims for Breach of
Warranty (Count II) and Aiding and Abetting and Conspiracy
(Count IV).

FAC ¶¶ 10-14, 21-26.

Plaintiffs also seek punitive

damages in the amount of $50,000,000.00.

See, e.g., id. at 16.

Hopeman contends that it is entitled to summary judgment on
Plaintiffs' claims for breach of warranty, aiding and abetting,
and punitive damages because:
Plaintiffs failed to establish clear and
convincing evidence of actual malice to
support their claim for punitive damages;
Plaintiffs' breach of warranty claim is
barred by the statute of limitations and for
lack of privity; and
There is no evidence to support a claim for
aiding and abetting a conspiracy.
[ECF No. 849-1] at 10-15.
In their Response to the instant Motion, Plaintiffs do not
address these contentions.

Plaintiffs' failure to respond to

Hopeman's summary judgment assertions regarding the claims for
breach of warranty, aiding and abetting, and punitive damages
constitutes abandonment of those claims.

See Johnson v. Norfolk

S. Ry. Co., No. CIV.A. MJG-12-3374, 2014 WL 4662384, at *2 (D.

4

Md. Sept. 16, 2014) (citing cases); see also Grant-Fletcher v.
McMullen & Drury, P.A., 964 F. Supp. 2d 514, 525 (D. Md. 2013)
("Fletcher appears to have abandoned this argument by not
opposing M & D's Motion for Summary Judgment on the issue.").
Accordingly, the Court concludes1 that Hopeman is entitled
to summary judgment as a matter of law on Counts II and IV and
on Plaintiffs' claim for punitive damages.

IV.

NEGLIGENCE AND STRICT LIABILITY
Hopeman contends that Plaintiffs have failed to present

sufficient evidence to permit a reasonable jury to find that
Haney was exposed to asbestos from any product for which Hopeman
is liable to the extent that the exposure was a substantial
factor in causing Haney's mesothelioma.
In their Response, Plaintiffs state generally that "Haney
was exposed to asbestos . . . while working as a machinist

1

See Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th
Cir. 1993) ("[P]laintiff failed to respond to the defendants'
motion for summary judgment, despite repeated notices to do so.
This failure to respond, however, does not fulfill the burdens
imposed on moving parties by Rule 56. . . . Although the failure
of a party to respond to a summary judgment motion may leave
uncontroverted those facts established by the motion, the moving
party must still show that the uncontroverted facts entitle the
party to "a judgment as a matter of law." The failure to
respond to the motion does not automatically accomplish this.
Thus, the court, in considering a motion for summary judgment,
must review the motion, even if unopposed, and determine from
what it has before it whether the moving party is entitled to
summary judgment as a matter of law.").
5

during the new construction of naval and merchant ships at the
Bethlehem Steel Sparrows Point Shipyard." [ECF No. 937] at 2.
Specifically, as to Hopeman, Plaintiffs state:
From July of 1956 to the spring of 1958, Mr.
Haney was employed as an outside machinist
by
the
Bethlehem
Steel
Sparrows
Point
Shipyard.
It is at that jobsite that Mr.
Haney claims exposure to the asbestoscontaining
bulkhead
(wall)
panels
that
Hopeman admittedly installed onboard the ore
carrier.
Id. at 2-3 (internal citation omitted).
Accordingly, the claims against Hopeman are based solely upon
alleged exposure to asbestos in Marinite panels installed by
Hopeman on the ore carrier Hull No. 4549 ("the 4549") in 1956.

A.

Exposure to Asbestos-Containing Marinite Panels

Hopeman states that it "has not and does not contest that
it installed Marinite panels on" the 4549. [ECF No. 938] at 1.
However, Hopeman contends that "Hopeman's documents show that it
installed insulation as well, and that, based on the testimony
of Mr. Haney, is the only material he observed Hopeman install"
and, therefore, "[i]n the absence of proof that this was an
asbestos-containing product, Hopeman is entitled to summary
judgment."

[ECF No. 849] at 9-10.

Hopeman installed the asbestos-containing Marinite panels
on the bulkhead – or, interior - walls in the hull of the 4549.

6

Ramsey Dep. 23:7-24:14.

The proffered evidence referring to

Haney's alleged exposure to the installation of Marinite panels
on the 4549 is provided by deposition testimony from Haney.
Q.

. .
Q.

A.

Q.

A.

[By Plaintiffs' counsel]: During this
six-month period when you were working at
Beth Steel from the summer until December
of 1956 – and you have told us you worked
on all the ships that were in the wet
dock in the engine and boiler room.
. .
Do you recollect any – any contractors or
outside
workers
installing
walls
or
paneling?
Putting up – putting up bulkheads, a
sheet
–
sheeting
over
the,
like,
insulation.
And when those workers were installing
that paneling on the bulkheads do you
recall them having to saw those panels
when you were work – walking through that
vicinity?
Yes. You had to cut them to fit.

Haney Disc. Dep. May 10, 2012, 442:4-8, 443:2-16 (objections to
form omitted).
Later that day, there was questioning by counsel for
Hopeman:
Q.

Okay.
The – the panels that were
installed on the bulkheads, do you know
what that panel material looked like?
A. It is blackish on the outside.
On the
inside it was kind of a grayish
. . . .
Q. Can you tell me how the panel material
would be installed on the bulkhead?
A. They would measure it and cut it where it
would fit the bulkhead.
Id. 456:1-457:2.

7

Q.
A.
Q.
A.

Q.
A.

Q.
A.

Were there – were these panels – they fit
on the wall, correct?
Yes.
How were they fastened to the wall?
They had these nail guns – excuse me.
They had these nails with a sheet metal
around it.
And they could take it in
through – through all this panel we are
talking about.
Yes, sir.
And could hit it with an arc and it would
bond. I mean, that would secure it right
up against the bulkhead.
And the arc was some type of weld; is
that right?
That's what it is.

Id. 459:3-18.
In his de bene esse deposition,2 held on May 24, 2012, Haney
was again questioned about the installation of bulkhead panels:
Q. [By Plaintiffs' counsel]: What kind of
work did you see contractors doing when
you would walk from the dock to get to
the engine room?
A. They was putting up the drywall on the
bulk heads.
Q. Can you describe –
A. Dry dock.
Q. You said drywall.
A. Well, drywall putting it on the bulk
heads.
2

The United States Court of Appeals for the Fourth Circuit
has stated that "[t]he Federal Rules of Civil Procedure make no
distinction for use of a deposition at trial between one taken
for discovery purposes and one taken for use at trial (de bene
esse)." Tatman v. Collins, 938 F.2d 509, 510-11 (4th Cir.
1991). The court explained that "Fed.R.Civ.P. 32 provides that
a deposition may be offered at trial, subject to the rules of
evidence, as though the witness were present and testifying
. . . . It is irrelevant . . . that [the deposition] was
initiated only for discovery purposes, or that it was taken
before other discovery was completed." Id. at 511.
8

Q.
A.
Q.
A.
Q.

Q.
A.
Q.

A.

Q.

A.
Q.
A.
Q.
A.

It was like –
Sheets of it.
Okay.
Like eight by ten, et cetera, et cetera.
All right. And you – can you describe how
they were putting those panels up on the
walls?
What kind of work were they doing?
They were – they were putting on the
insulation.
All right. But when you – you said they
were putting these panels up, how were
they doing that?
They were putting it up on the walls,
bulk heads. And they had these little
pock things they would shoot at it like a
nail, fuse them right in like a nail
sticking
out.
And
you
got
is
the
insulation in behind it, and secure it
right down.
And when they were putting these panels
up on the wall was it always a perfect
fit?
No.
Or did they ever have to cut it?
They were cutting it left and right.
How were they cutting it left and right?
With
saws
–
saws,
electric
saws,
pneumatic saws.

Haney De Bene Esse Dep. May 24, 2012, 62:2-64:9 (objections to
form and compound omitted).
Later that day, questioning by counsel for Hopeman:
Q.
A.
Q.
A.

And you said these panels were blackish
color on the outside?
Right.
And a grayish color on the inside?
Yes.

Id. 178:11-15.
Hopeman contends that "Mr. Haney's description of the
[paneling] material and how it was installed is inconsistent

9

with the Marinite panels installed on [the 4549]." [ECF No. 938]
at 1.

Hopeman points to the 1995 trial testimony of Charles

Johnson, a Hopeman employee, who discussed installing comfort
insulation in the hull of ships before installing the divisional
paneling system. See [ECF No. 849-10].

Hopeman also relies upon

the 1996 deposition testimony of Otis Craun and Park Gardner,
former Hopeman employees who installed divisional partitioning
panels and bulkhead panels on ships at the Sparrows Point
Shipyard. See [ECF Nos. 849-8, 849-9].

According to Hopeman,

this testimony, when compared with Haney's, establishes that
"[t]he material described by Mr. Haney is clearly this comfort
insulation, and not a Marinite board."

[ECF No. 849-1] at 9.

Haney's deposition testimony is far from conclusive on what
he observed.

At one point, he described observing "drywall

[being] put[] on the bulk heads," and then, at another point, he
described seeing workers "put[] up insulation."

However,

Hopeman mischaracterizes the deposition and trial testimony of
its former employees, which it contends shows that the process
for installing Marinite panels was "entirely different" from
what Haney described. See [ECF 938] at 5.
Based on the evidence in the record, the Court cannot
conclude that no reasonable jury could find that Haney observed
the installation of asbestos-containing Marinite panels on the

10

4549.

Accordingly, Hopeman is not entitled to summary judgment

on this ground.

B.

Substantial Factor Causation

However, even if Haney had been exposed to the installation
of Marinite panels by Hopeman, Hopeman is entitled to summary
judgment because Plaintiffs have not provided sufficient
evidence for a jury to reasonably infer that Haney's exposure to
the panels was a substantial factor in causing his mesothelioma.
In Maryland, "to prevail on claims of negligence or
products liability, the plaintiff must prove proximate
causation."

Hurley v. Anchor Packing Co., No. CIV.A. GLR-12-

460, 2014 WL 1794116, at *2 (D. Md. May 5, 2014), appeal
docketed, No. 14-2271 (4th Cir. 2014).

"To establish proximate

causation in Maryland, the plaintiff must introduce evidence
which allows the jury to reasonably conclude that it is more
likely than not that the conduct of the defendant was a
substantial factor in bringing about the result."

Lohrmann v.

Pittsburgh Corning Corp., 782 F.2d 1156, 1161-62 (4th Cir.
1986).

Although proximate cause is generally an issue "reserved

for the trier of fact[,] 'it becomes a question of law in cases
where reasoning minds cannot differ'" and "'the facts admit of
but one inference.'"

Pittway Corp. v. Collins, 973 A.2d 771,

792 (Md. 2009) (citations omitted).

11

1.

The Proffered Evidence

The only proffered evidence regarding the extent of Haney's
exposure to the installation of Marinite panels on the 4549 by
Hopeman3 is provided by deposition testimony from Haney.
Q.

[By Plaintiffs' counsel]: During this
six-month period when you were working at
Beth Steel from the summer until December
of 1956 – and you have told us you worked
on all the ships that were in the wet
dock in the engine and boiler room. When
you would get on the ship, did you have
to walk through companionways and other
compartments to get to the engine and the
boiler room?
A. Yes.
Q. And when you would walk through the
companionways and the compartments to
make your way down to the engine room was
– was there work going on?
A. Yes, there were.
Q. Do you recollect any – any contractors or
outside
workers
installing
walls
or
paneling?
A. Putting up – putting up bulkheads, a
sheet
–
sheeting
over
the,
like,
insulation.
. . . .
Q. All right.
And when they would consult
these panels to fit was – what was the
condition of the air like in those
companionways and compartments that you
were walking through?
A. A little dusty.
Q. Okay. And did you breathe that dust?
3

Haney could not recall the name of the manufacturer of the
panels or the company that installed them, but Hopeman has
"admit[ted], at least for purposes of this motion, that it in
fact did install Marinite panels during the course of its work
on Hull 4549 during September and October, 1956." [ECF No. 8491] at 9-10.
12

A.

Yes, until I got through it.

Haney Disc. Dep. May 10, 2012, 442:4-444:8 (internal objections
to form omitted).
Later that day, there was questioning by counsel for
Hopeman:
Q. [E]xplain to me how it is that you would
get down to the engine room.
A. I – I'd come off the main deck.
Q. Right
A. Down through the hatch.
. . . .
A. Two – two main ladders going down to the
engine room.
. . . .
Q. How long would it take you to get from
the deck of the ship when you got on the
ship from the land to get down to the
engine room?
A. This is a lot of ifs and ands there.
. . . .
Q. I know.
Well, just tell me on average
how – how long it would take you.
I
understand that.
. . . .
A. I mean with – with – with – it is
according to what you are carrying.
Q. What would you be carrying when you were
going down –
A. Tool pouches. A tool pouch.
. . . .
Q. I just want to know how much time it would
take you to get down there.
And I
understand it would vary a little bit but –
A. Three to five minutes.
Id. 448:15-449:3, 449:16-450:2, 450:16-451:8, 451:17-20.

Haney

later reiterated that it took him three to five minutes to get
to the engine room: "I am three to five minutes getting me down
to the engine room."

Id. 461:18-20.

13

During further questioning by counsel for Hopeman:
Q. Okay.
During the period of time until
December 1956 at the shipyard are you
able to tell me how many times you saw
the paneling material installed aboard
ship?
A. Eight or ten times.
Q. Okay. Eight to ten times?
A. Eight to ten somewhere.
Id. 466:10-16.
In his de bene esse deposition, Haney was again questioned
about his work on the 4549:
Q. (by Plaintiff's counsel): Now, when you
were working on the ore carrier in the
engine room, how much do you think you
worked on that ore carrier in the engine
room during that six-month period at Beth
Steel?
A. Maybe a month or better.
Q. And each day that you worked on that ore
carrier in 1956 at Beth Steel, on any
given day, how many times do you think
you had to go from the engine room back
to the dock?
A. Six times, a dozen.
. . . .
Q. Each time you would go back and forth
from the engine room back to the dock,
did you have to pass through the areas on
the ship where those contractors –
A. Yep.
Q. – were putting up the walls?
A. Right.
Haney De Bene Esse Dep. May 24, 2012, 65:2-66:6 (objections
omitted).
However, later that afternoon, there was additional
questioning by counsel for Hopeman:

14

Q.

A.
Q.

A.

When you were working at Sparrows Point,
you told me when I was asking you
questions that to get from the deck when
you were on land to the ship down to the
engine room and boiler room where you
were stationed, it took you about three
to five minutes to make that trip.
That's true, correct?
True.
All right.
And you told me that from
when you started at Bethlehem Steel
Sparrows Point shipyard in June of (sic)
July of '58 (sic) until the end of that
year in December, that you saw panels
being cut while you were making that trek
passing through the area about eight to
ten times. That is true, correct?
Correct.

Id. 177:16-178:10.

2.

Causation Analysis

Haney is considered a "bystander" because he did not work
directly with the Marinite panels.

See Eagle–Picher Indus.,

Inc. v. Balbos, 604 A.2d 445, 460 (Md. 1992).

"The Court of

Appeals of Maryland has established a 'frequency, regularity,
proximity' test for substantial factor causation in [bystander]
asbestos-exposure cases."

Hurley, 2014 WL 1794116, at *2.

In

Eagle–Picher Industries, Inc. v. Balbos, the Court of Appeals
explained:
Whether the exposure of any given bystander
to any particular supplier's product will be
legally sufficient to permit a finding of
substantial-factor
causation
is
fact
specific to each case. . . . [T]he factors
to be evaluated include the nature of the

15

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.
"In addition,
trial courts must consider the evidence
presented as to medical causation of the
plaintiff's particular disease."
604 A.2d at 460 (emphasis added) (citations omitted).
"To support a reasonable inference of substantial causation
from circumstantial evidence, there must be evidence of exposure
to a specific product on a regular basis over some extended
period of time in proximity to where the plaintiff actually
worked."

Lohrmann, 782 F.2d at 1162-63.

Plaintiffs have not

met this burden.
Haney testified at two different points during his
discovery and de bene esse depositions that he observed the
installation of paneling "eight to ten times" while he took the
three- to five-minute-walk from the main deck to the engine and
boiler room.

See Haney Disc. Dep. May 10, 2012, 461:18-20,

466:10-16; Haney De Bene Esse Dep. May 24, 2012, 177:16-178:10.
The duration of the exposure while Haney worked on the 4549 was
no more than six months (between July and December of 1956),
and, in fact, according to Haney, was closer to "a month or
better."

Haney De Bene Esse Dep. May 24, 2012, 65:2-66:6.

Moreover, it is not clear that the "eight to ten times"
Haney observed the installation of the Marinite panels all

16

occurred while he was working on the 4549. See Haney Disc. Dep.
May 10, 2012, 466:18-467:17 (Q. I know you were working on
different ships. How much time would you spend on any particular
ship at Sparrows Point until December of 1956? . . . . Did you
work on the same ship for some period of time?

A. No. Day to

day."); Haney De Bene Esse Dep. May 24, 2012, 177:16-178:10 ("Q.
[U] you told me that from when you started at Bethlehem Steel
Sparrows Point shipyard in June of (sic) July of '58 (sic) until
the end of that year in December, that you saw panels being cut
while you were making that trek passing through the area about
eight to ten times.

That is true, correct?

A. Correct.").

Haney's exposure to the installation of Marinite panels on
the 4549 was significantly less frequent, proximate, and regular
than the exposures that courts in Maryland have found adequate
to satisfy the Balbos "frequency, proximity, and regularity"
test.

See, e.g., Sherin v. Crane-Houdaille, Inc., 47 F. Supp.

3d 280, 295 (D. Md. 2014) ("Mr. Sherin has provided sufficient
evidence for a jury to reasonably infer that the Balbos
'regular, frequent, and proximate exposure' test is met. . . .
Defining the relevant time period as 1969 to 1976, and
performing basic math, Mr. Sherin visited between 672 and 840
construction sites during that time. . . .

Dust from the joint

compound adhered to his socks, shoes, pants, and jacket that
were washed by Mrs. Sherin. . . . From Mrs. Sherin's laundry

17

exposure and the medical testimony, a jury could reasonably
infer that Union Carbide's asbestos fiber was a substantial
factor in causing Mrs. Sherin's mesothelioma." (internal
citations and footnotes omitted)); ACandS, Inc. v. Godwin, 667
A.2d 116, 124-126 (Md. 1995), on reconsideration (Dec. 1, 1995)
("For more than twenty years McNiel worked outside the partially
open-sided No. 4 Open Hearth building and was required to enter
it five to six times a day. He was also required from time to
time for more than two decades to go to No. 5 Soaking Pit. Based
on the evidence that Bethlehem employees regularly used
Unibestos half-rounds and block, McNiel has satisfied the Balbos
test as to PCC. . . . [T]he evidence places Russell at the Point
doing pipe covering work for twelve to fourteen months while
Unibestos was available to Bethlehem pipe coverers. Further,
pipe coverers employed by Bethlehem were 'always' around when
Russell was working for a contractor. . . . There was sufficient
evidence of substantial causation to take the case to the jury
on behalf of Russell against PCC. . . . The Leaf brothers worked
on the No. 5 Blast Furnace outage for a shift of twelve hours in
a twenty-four hour period, seven days each week, for six
consecutive weeks. Thus, there was sufficient evidence that the
plaintiff Leaf was regularly and proximately exposed to
Unibestos, which was frequently used.").

18

The evidence establishes that, at most, Haney passed
through the areas where Hopeman installed the Marinite panels on
the 4549 eight to ten times for three to five minutes each time
over the course of roughly two months.

According to the Court

of Special Appeals of Maryland, this is not sufficient to
satisfy the substantial factor causation standard for asbestos
exposure cases.

See Anchor Packing Co. v. Grimshaw, 692 A.2d 5,

40 (Md. Ct. Spec. App. 1997) ("As far as Zumas's exposure to
Hopeman's cutting of panels on board ships in the wet dock area,
there is no direct evidence that Zumas worked in proximity,
regularity, or frequency to Hopeman's operations. Zumas
testified that he would pass through the quarters to get to his
work area, but he did not work inside the quarters. . . . The
facts . . . do not establish Zumas's proximity, frequency, or
regularity of exposure."), vacated sub nom. on other grounds
Porter Hayden Co. v. Bullinger, 713 A.2d 962 (Md. 1998)
abrogated on other grounds by John Crane, Inc. v. Scribner, 800
A.2d 727 (Md. 2002).
Plaintiffs contend that Haney's deposition testimony
establishes that he observed the installation of Marinite panels
"six times, a dozen" times per day.

[ECF 937] at 4.

Haney did not provide such testimony.

However,

Moreover, Haney's

attorney – with ample opportunity to do so – did not in any way
seek to reconcile that testimony with Haney's clear statements –

19

made during both his discovery and de bene esse depositions –
that he saw panels being cut and installed on the 4549 only
"eight to ten" times.
The Court finds that Plaintiffs have not presented evidence
sufficient to permit a reasonable jury to conclude that Haney
was exposed to the installation of Marinite panels on the 4549
with the frequency, proximity, and regularity necessary to hold
Hopeman liable for Haney's mesothelioma.
Accordingly, Hopeman is entitled to summary judgment on
Plaintiffs' claims for strict liability and negligence.4

4

The Court has found that Hopeman is entitled to summary
judgment on Plaintiffs' strict liability and negligence claims
on the grounds that Haney's exposure to the installation of the
asbestos-containing Marinite panels was not a substantial factor
in causing his mesothelioma. Therefore, Hopeman also is
entitled to summary judgment on Plaintiffs' wrongful death
claims because there has been no "wrongful act." See Md. Code
Ann., Cts. & Jud. Proc. §§ 3-901, 3-902.
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V.

CONCLUSION
For the foregoing reasons:
1. The Motion of Defendant Hopeman Brothers, Inc., for
Summary Judgment [ECF No. 849] is GRANTED.
2. The Cross-Claim of Hopeman Brothers, Inc., Against
Defendant Owens Illinois, Inc. [ECF No. 687] is
DISMISSED AS MOOT.
3. Judgment shall be entered by separate Order.

SO ORDERED, on Monday, August 10, 2015.

/s/___
__ _
Marvin J. Garbis
United States District Judge

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