WATTS, J.
Appellant, the Wallace & Gale Settlement Trust, appeals verdicts rendered against it by a jury sitting in the Circuit Court for Baltimore City, as to claims of survival and wrongful death in four cases consolidated for trial, in favor of: (1) in the Carter case, plaintiffs, Sonia Carter and the Estate of Rufus Carter, and use plaintiffs, Rufus Carter, Jr., Kenneth Carter, and Natasha Sloan; (2) in the James case, plaintiff, the Estate of Levester James, and use plaintiffs, Katherine James, Monica James, and Kevin James; (3) in the Lawrence case, plaintiffs, Bernice Lawrence and the Estate of Mayso Lawrence, Sr., and use plaintiffs, Elaine McPherson, Mayso Lawrence, Jr., Phaedra Bailey, Tyrone Lawrence, Cephus Lawrence, Sean Lawrence, and Tanesha Lawrence; and (4) in the Hewitt case, plaintiffs, Annette Hewitt, Roger Hewitt, Jr., and the Estate of Roger Hewitt, and use plaintiffs, Idalyn Williams and Penny Hewitt.
Appellant noted an appeal raising three issues, which we quote:
For the reasons set forth below, we answer questions I and II in the affirmative and question III in the negative. We, therefore, reverse and vacate the judgments entered against appellant in favor of the use plaintiffs, concluding that the statute of limitations now bars the use plaintiffs from bringing wrongful death claims. As to the Hewitt case, we reverse the judgments entered against appellant in favor of the plaintiffs, and remand for a new trial. We affirm the judgments entered against appellant in favor of the plaintiffs in the Carter case, the James case, and the Lawrence case.
Established in 1881, W & G was a Baltimore-based insulation and roofing contractor that installed asbestos-containing products for various companies, including Bethlehem Steel and American Smelting & Refining Company ("ASARCO").
On November 16, 1985, W & G filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 17, 2001, the United States Bankruptcy Court for the District of Maryland
On November 2, 2010, the United States Bankruptcy Court for the District of Maryland approved the "Second Amended and Restated Asbestos BI Claims Resolutions Procedures." Section 5.4(b) of the Procedures provided for the tolling of the statute of limitations applicable to claims against appellant. Pursuant to Section 5.4(b), claims accruing after the petition date, November 16, 1985, and prior to the implementation date, August 26, 2009, were required to be brought against appellant before: (1) the expiration of the ninety-day period immediately following the date that the Claims Materials were made publicly available to claimants, September 28, 2010, or (2) the expiration of the statute of limitations applicable to the claim, whichever was later.
On January 5, 2007, Willean Peoples ("Peoples"), Levester James's ("James") stepdaughter, as personal representative of James's estate, filed a short form asbestos complaint against numerous defendants, including appellant, containing counts of negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. Peoples alleged that James had been employed as a laborer at ASARCO from 1968 to 1972, and that, on July 4, 2004, James died from lung cancer. The case caption on the short form complaint identified the following use plaintiffs: Katherine, James's surviving spouse, Kevin, James's surviving son, and Monica, James's surviving daughter.
On February 21, 2008, Arthur L. Drager ("Drager"), as personal representative of Mayso A. Lawrence, Sr.'s ("Lawrence") estate and Bernice, as Lawrence's surviving spouse, filed a short form asbestos complaint against numerous defendants, including appellant, containing counts for negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. The complaint alleged that Lawrence worked as a laborer at ASARCO from 1968 to 1969, and as a laborer and machine operator at Bethlehem Steel from 1970 to "later into the" 1970s. On October 8, 2007, Lawrence died from lung cancer. The case caption on the short form complaint listed the following use plaintiffs: Elaine, Mayso Jr., Tyrone, Phaedra, Cephus, Sean, and Tanesha, Lawrence's four sons and three daughters.
On February 17, 2006, Johanna Carter, as personal representative for Rufus E. Carter's ("Carter") estate, and Sonia, as Carter's surviving daughter, filed an amended short form complaint against numerous defendants including appellant, incorporating the counts set forth in the original complaint — loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud, and adding a count alleging wrongful death. Johanna alleged that Carter had been employed as a laborer and crane operator at ASARCO from 1966 to 1975. On November 6, 2003, Carter died from lung cancer. The case caption on the amended short form complaint listed the following use plaintiffs: Kenneth and Rufus Jr., Carter's sons, and Natasha, Carter's daughter.
On March 7, 2006, Sonia filed a Notice to Substitute Parties, advising that Johanna had been removed as the personal representative of Carter's estate and that
On September 7, 2006, Roger C. Hewitt, Sr. ("Hewitt") and Annette Hewitt filed a short form asbestos complaint against numerous defendants alleging that Hewitt had been diagnosed with "asbestosis and asbestos-related diseases" in April 2006. Hewitt alleged that he was exposed to asbestos through his work as a laborer, mechanic steamfitter and pipe fitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel from 1946 to the late 1970s. On January 5, 2007, the plaintiffs filed an Amendment by Interlineation, adding appellant as a defendant. On December 20, 2008, Hewitt died of pneumonia.
On January 23, 2009, Roger Jr. filed a Notice to Substitute Parties, notifying the circuit court and the parties that he, as personal representative of Hewitt's estate, was substituted as a party plaintiff in the survival action. On July 24, 2009, Annette, as surviving spouse of Hewitt, and Roger Jr., as personal representative of Hewitt's estate, filed an amended short form complaint, incorporating the counts set forth in the original complaint-loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud, and adding a count alleging wrongful death. The case caption on the amended short form complaint identified the following use plaintiffs: Penny and Idalyn, surviving daughters.
On the same day, July 24, 2009, Roger Jr. filed an Amendment by Interlineation to Add Disease Process, alleging that recent medical records indicated that, in addition to asbestosis, Hewitt had also suffered from lung cancer causally connected to his exposure to asbestos and asbestos products.
On November 10, 2009, the circuit court consolidated the four cases for trial, scheduled to begin on January 18, 2011.
In three of the cases — the James, Lawrence, and Carter cases — personal representatives filed answers to interrogatories, referring to themselves as the singular "Plaintiff."
In the Hewitt case, plaintiff Roger Jr. filed answers to interrogatories. Throughout the answers to interrogatories, Roger Jr. is referred to as the singular "Plaintiff." In one answer, Roger Jr. stated that Hewitt smoked approximately one-half to one pack of cigarettes per day from approximately 1943 to approximately 2008.
On December 20, 2010, approximately one month before the start of trial, the plaintiffs filed proposed voir dire. As to plaintiffs, question 2 of the proposed voir dire asked the following:
On January 3, 2011, appellant filed a motion to exclude fact witnesses not produced for discovery deposition. Asserting that trial was scheduled to begin in two weeks and that its ability to prepare a defense had been "significantly and unfairly prejudiced[,]" appellant requested that the circuit court exclude all fact witnesses not offered for deposition by October 18, 2010, from testifying at trial. The circuit court denied the motion to exclude and continued the trial for three weeks. During the three week continuance, appellant's counsel conducted approximately thirty depositions of family members, including some of the individuals identified as use plaintiffs.
A jury trial was held from February 9, 2011, to February 11, 2011, February 14, 2011, to February 18, 2011, February 22, 2011, to February 25, 2011, and February 28, 2011, to March 2, 2011.
On February 9, 2011, during the morning session of voir dire, the circuit court asked the following questions as to the plaintiffs in the case:
During the afternoon session of voir dire, the circuit court again identified the plaintiffs in the case as Rufus Carter, Roger Hewitt, Levester James, and Mayso Lawrence.
In opening statement, plaintiffs' counsel identified the plaintiffs in the case as follows:
Hewitt was a crane operator who worked at Bethlehem Steel from 1946 to the late 1970s. Hewitt was a cigarette smoker who smoked a half a pack to a pack per day. Hewitt was diagnosed with lung cancer in October 2008, and died on December 20, 2008, at eighty-one years old.
At trial, Dr. Steven Zimmet testified that asbestos exposure was a substantial contributing cause to Hewitt's lung cancer, and that smoking was also a cause of Hewitt's lung cancer. According to Dr. Zimmet, he could not differentiate "which caused what" because the two exposures are "not just additive, they are synergistic which means they multiply exposures." At trial, appellant conceded that Hewitt had asbestosis and that asbestos had contributed to his lung cancer. Appellant's counsel requested that the circuit court permit apportionment of damages, and appellees'
Subsequently, appellant's counsel filed an offer of proof regarding Dr. Kerby's testimony, which provided, in pertinent part, as follows:
The circuit court accepted the offer of proof, but excluded Dr. Kerby's testimony concerning apportionment of damages, stating: "It is just this effort to apportion doesn't really work for me. It doesn't make any sense[.]"
Appellant's counsel offered Dr. Kerby as an expert in pulmonary medicine and the historical development of knowledge in the medical and scientific community regarding asbestos and disease. The circuit court accepted Dr. Kerby as an expert in those areas with no objection from the plaintiffs.
At the conclusion of the plaintiffs' case, appellant filed a Motion for Directed Verdict Based on the Statute of Limitations, arguing, in pertinent part, as follows:
(Citation omitted). Appellant requested that the circuit court "find that the current wrongful death claims for `use' plaintiffs Katherine James, [Kevin] James, Monica James, Kenneth Carter, Rufus Carter, Jr., and Natasha Sloan [were] improper" and time barred.
At the conclusion of the plaintiffs' case, appellant's counsel orally moved for judgment "against all the plaintiff's cases on all the respective counts." Appellant's counsel argued, in pertinent part, that the use plaintiffs failed to join the action as "necessary parties," and that the use plaintiffs were identified only to give them notice of the action. The circuit court denied the motion for judgment with leave for appellant's counsel to renew the motion at the close of all the evidence.
After the close of all of the evidence, appellant's counsel renewed the motion for judgment. As to the issue of the use plaintiffs, the circuit court observed the following:
The circuit court commented: "What is the harm of leaving them in, let them render a judgment, that way if it goes up on appeal
On February 23, 2011, appellant filed proposed revised verdict forms for the four cases. In the Hewitt case, the proposed verdict form contained questions concerning apportionment, including the following:
After the close of all of the evidence, plaintiffs' counsel addressed the verdict sheets and apportionment, stating: "I am concerned about the verdict sheets. If Your Honor ruled, I would ask if [appellant's counsel] is going to do the verdict sheets that the apportionment part come out and that each of the wrongful death claimants be listed." The circuit court agreed. As a result, in the Hewitt case, no question concerning apportionment was included on the verdict form.
Prior to the court instructing the jury, the parties discussed jury instructions. Appellant's counsel objected to instruction number 28, titled "state of the art," arguing:
The circuit court overruled the objection.
Appellant requested a jury instruction concerning apportionment of damages in the Hewitt case, which read as follows:
The circuit court declined to give the requested instruction on apportionment, ruling:
After the close of all the evidence, the circuit court instructed the jury, in pertinent part, as follows:
(Emphasis added).
At the end of jury instructions, appellant's counsel excepted to several instructions, arguing:
The circuit court noted the exceptions, but took no further action.
The jury returned verdicts in favor of the plaintiffs and use plaintiffs, in the following amounts: (1) James case — $2,035,684.71; (2) Lawrence case — $2,930,532.09; (3) Carter case — $2,017,302.50; and (4) Hewitt case — $2,686,686.07.
On May 12, 2011, the circuit court entered orders in the four cases reducing the jury verdicts after application of the cap on non-economic damages, bankruptcy settlement payments, and joint tortfeasor credit for appellant's cross-claims against another defendant (i.e. pro rata share allocation). The jury verdicts were reduced to the following judgments:
(1) James case Survival $503,959.39 (total) Wrongful death $476,250.50 (total) Use Plaintiff Katherine James $238,125.50 Use Plaintiff Monica James $119,062.50 Use Plaintiff Kevin James $119,062.50Total Judgment: $980,209.89 (2) Lawrence case Survival $261,371.24 (total) Wrongful death $521,250 (total) Plaintiff Bernice Lawrence $108,593.74 Use Plaintiff Elaine McPherson $ 32,578.13 Use Plaintiff Mayso Lawrence, Jr. $ 32,578.13 Use Plaintiff Phaedra Bailey $ 32,578.13 Use Plaintiff Tyrone Lawrence $ 32,578.13 Use Plaintiff Cephus Lawrence $ 32,578.13 Use Plaintiff Sean Lawrence $ 32,578.13 Use Plaintiff Tanesha Lawrence $217,187.48Total Judgment: $782,621.24 (3) Carter case Survival $499,953.41 (total) Wrongful death $476,250 (total) Plaintiff Sonia Carter $119,062.50 Use Plaintiff Rufus Carter, Jr. $119,062.50 Use Plaintiff Kenneth Carter $119,062.50 Use Plaintiff Natasha Sloan $119,062.50Total Judgment: $976,203.41 (4) Hewitt case Survival $ 687,394 (total) Loss of consortium $ 169,050.97 (total) Wrongful death $ 469,050.98 (total) Plaintiff Annette Hewitt $ 172,808.26 Plaintiff Roger C. Hewitt, Jr. $ 98,747.58 Use Plaintiff Idalyn Williams $ 98,747.57 Use Plaintiff Penny Hewitt $ 98,747.57
Total Judgment: $1,325,495.95
On November 30, 2011, and December 1, 2011, the circuit court issued notices of recorded judgments.
Appellant filed a Motion for Judgment Notwithstanding the Verdict, Motion for New Trial, and Motion for A Remittitur (the "post-trial motion"), again raising the issue of the use plaintiffs, apportionment in the Hewitt case, and issues as to the jury instructions.
As to the issue of apportionment in the Hewitt case, appellant argued that the circuit court erroneously refused to instruct the jury as to apportionment and excluded the expert testimony of Dr. Kerby. Appellant asserted that Maryland law generally recognizes apportionment of damages in tort cases where the criteria set forth in the Restatement are satisfied. According to appellant, "Dr. Kerby's proffered testimony satisfied the Restatement's requirements for allowing the jury to apportion damages between the two causes."
In a response to the post-trial motion, as to the apportionment of damages in the Hewitt case, appellees contended that Hewitt's lung cancer was an indivisible injury, and that appellant's request was actually a request to apply comparative fault, which has "been refused both in [Maryland] courts and by legislature." Appellees argued that because Maryland is not a comparative fault state, the circuit court did not need to address the exclusion of Dr. Kerby's testimony.
Appellant filed a reply memorandum in support of its post-trial motion.
On July 21, 2011, the circuit court held a hearing on the post-trial motion. The circuit court denied the post-trial motion as to the apportionment issue, ruling from the bench:
As to the giving of the jury instruction on the duty to inspect, test, or analyze, the circuit court denied the post-trial motion, ruling: "I'm not going to grant the motion, because I think even if I were wrong, I think it was harmless."
At the end of the post-trial motion hearing, the circuit court held the issue of the use plaintiffs sub curia, stating:
On October 13, 2011, the circuit court held a brief hearing on the outstanding issue of the use plaintiffs, and ruled as follows:
On October 18, 2011, the circuit court entered an order denying appellant's post-trial motions. On November 15, 2011, appellant filed a notice of appeal.
Relying on Univ. of Md. Med. Sys. Corp. v. Muti, 426 Md. 358, 44 A.3d 380 (2012), appellant contends that the "failure of the `use plaintiffs' to join the actions precludes them from recovering damages." Appellant argues that, by the plain language of Maryland Rule 15-1001, use plaintiffs are statutory beneficiaries who have not joined the action as party plaintiffs. Appellant argues that the circuit court lacked jurisdiction over the use plaintiffs as they were not served with process, and that the use plaintiffs were "not required to participate in pretrial proceedings, submit to written discovery, or accept other obligations imposed on a party." Appellant asserts that the plaintiffs in the instant case "acted as if the use plaintiffs were not parties and owed no obligations to the defense[,]" and "ignored discovery requests and refused to present the use plaintiffs for deposition until compelled by the [circuit] court[.]" Appellant maintains that the use plaintiffs inexplicably
Appellant contends that the failure of the use plaintiffs to timely join the action is "fatal" as the statute of limitations has expired as to their claims. Appellant argues that under the Wrongful Death Act, an action must be brought within three years after discovery of an occupational cause of death, and, under the Claims Resolution Procedures for its bankruptcy discharge, claims must be brought against appellant before the expiration of limitations as set forth in the Wrongful Death Act or December 28, 2010, whichever is later. Appellant asserts that, as to the Carter and James cases, the use plaintiffs were required to join the action, i.e. bring a claim for wrongful death, by December 28, 2010, as to the Lawrence case, February 21, 2011, and, as to the Hewitt case, December 20, 2011, or, at the latest, July 24, 2012. Appellant maintains that, as the claims of the use plaintiffs would supplement the claims of the named plaintiffs and possibly increase appellant's liability, the claims of the use plaintiffs do not "relate back" and are time-barred.
Appellees respond that "designating individuals as use plaintiffs accomplishes joinder of those use plaintiffs in the action so that they are proper parties in interest in the case." Appellees contend that the use plaintiffs were parties to the action and were properly awarded damages by the jury. Appellees argue that appellant and the circuit court had "clear notice" that all of the plaintiffs — including the use plaintiffs-were "claiming their share." In support of this argument, appellees point out the following as to the use plaintiffs: "They were listed in plaintiffs' Answer to Interrogatories; they were deposed pre-trial; they were introduced to the jury at voir dire; they were called as witnesses at trial and they were on the verdict sheets." Appellees contend that appellant's reliance on dicta from Muti is misplaced, and that Muti is not dispositive as it addressed a different factual scenario. Appellees argue that, unlike in Muti — where a potential beneficiary was not named as a use plaintiff — in this case, all plaintiffs and use plaintiffs participated in the action.
As to the statute of limitations, appellees contend the use plaintiffs are not time barred because they are not new parties, and do not bring new causes of action. Appellees argue that the filings of the use plaintiffs would relate back to the original filing when the wrongful death claimants were named.
In a reply brief, reiterating that Muti is dispositive and that the use plaintiffs are not parties, appellant asks: "How could [the use plaintiffs] be bound by a judgment of the court absent service of process or voluntary invocation of the court's jurisdiction?" Appellant contends that, contrary to appellees' arguments, counsel for the plaintiffs never entered an appearance on behalf of any of the use plaintiffs, and conceded before the circuit court that the use plaintiffs had not affirmatively joined the case.
The Maryland Wrongful Death Act, contained at Md.Code Ann., Cts. & Jud. Proc. Art. ("C.J.P.") § 3-901 et seq., sets forth
At the time of the actions underlying this appeal, Maryland Rule 15-1001, governing wrongful death actions, provided, in pertinent part:
In Walker v. Essex, 318 Md. 516, 524, 569 A.2d 645 (1990), a wrongful death case, the Court of Appeals vacated a judgment entered on behalf of only one of two potential beneficiaries, holding that the "judgment should not have been entered in the [trial] court unless it included the interests of all of the known beneficiaries." In Walker, id. at 523, 569 A.2d 645, the Court of Appeals discussed the unique nature and purpose of the Maryland Wrongful Death Act, explaining:
(Footnote omitted).
The Court of Appeals held that, based on the language of the Wrongful Death Act and accompanying rule, settlement by one wrongful death beneficiary requires mutual consent of the other joined beneficiaries or court approval. Id. at 518, 569 A.2d 645. The Court of Appeals concluded as follows:
Id. at 523-24, 569 A.2d 645.
In Williams v. Work, 192 Md.App. 438, 463, 995 A.2d 744 (2010), aff'd sub nom. Ace Am. Ins. Co. v. Williams, 418 Md. 400, 15 A.3d 761 (2011), this Court vacated the trial court's judgment and settlement, holding that "all statutory beneficiaries are to be either plaintiffs or use plaintiffs[.]" In the case, the decedent died as a result of an accident, survived by his wife, Lori, and his children. Id. at 443-44, 15 A.3d 761. The wife brought suit against the defendants, Williams I, as the decedent's personal representative but two of the decedent's sons were not named as plaintiffs or use plaintiffs. Id. at 444, 15 A.3d 761.
Later, the wife's counsel, now representing the two sons, filed a second lawsuit against the defendants, Williams II, seeking damages for the wrongful death of the decedent. Id. at 448, 995 A.2d 744. A year later, the two sons moved to reopen Williams I and to consolidate it with Williams II, asserting that, "as primary wrongful death beneficiaries, who did not receive any compensation and who had not consented to the settlement in Williams I, they [were] entitled to recover for the wrongful death of their father." Id. The defendants filed motions for summary judgment in Williams II, which were granted. Id. at 449-50, 995 A.2d 744.
We observed that nothing in the record demonstrated that the sons were named as plaintiffs as required by Maryland Rule 15-1001. Id. at 452, 995 A.2d 744. In discussing the concept of use plaintiffs, we stated that Maryland Rule 15-1001 "is in the nature of a joinder rule or a condition precedent that requires all known statutory beneficiaries, i.e., the real parties in interest, be identified as parties to the litigation." Id. We discussed Maryland Rule 15-1001 as follows:
Id. at 455-56, 995 A.2d 744 (citations and emphasis omitted).
As to Williams I, we noted that Lori's counsel purposefully avoided contact with the use plaintiffs, and neither Lori nor her counsel notified the sons of the terms of the settlement, "much less actively sought [the sons'] consent to the Settlement Agreement." Id. at 462, 995 A.2d 744. This Court ultimately vacated the judgment and settlement approved in Williams I and granted the motion to consolidate Williams I and Williams II, "keeping in mind that all statutory beneficiaries are to be either plaintiffs or use plaintiffs in the consolidated case." Id. at 463, 995 A.2d 744.
In Ace Am. Ins. Co., 418 Md. at 403, 427, 15 A.3d 761 the Court of Appeals affirmed this Court's decision in Williams, concluding as follows:
In Muti, 426 Md. at 384-85, 44 A.3d 380 the Court of Appeals held that the trial court abused its discretion in dismissing the plaintiffs' wrongful death claims as a sanction for omitting a decedent's adopted stepson as a use plaintiff. The decedent, Elliott, died, survived by his widow, Guiseppina, and their children, Tom and David ("the plaintiffs"). Id. at 363, 44 A.3d 380. After Elliott's death, the plaintiffs brought a claim for wrongful death, but omitted as a use plaintiff Ricky, the decedent's adopted stepson from a prior marriage, and did not otherwise notify Ricky of the action. Id. at 362, 44 A.3d 380.
In Muti, id. at 370-71, 44 A.3d 380 the Court of Appeals discussed the Wrongful Death Act statute of limitations, stating:
(Citations and footnote omitted). Pursuant to the time limit in the Wrongful Death Act, the Court of Appeals held that Ricky's claim had expired because, as a beneficiary, he had not brought an action within three years of Elliott's death. Id. at 376, 44 A.3d 380. The plaintiffs argued that "the trial court erred by not applying the doctrine of relation back and treating Ricky as having been named as a use plaintiff when [they] filed their action." Id. The Court of Appeals held that the doctrine of relation back would not be applied, however, "because Ricky's claim ha[d] expired by operation of the three year condition precedent." Id. at 376-77, 44 A.3d 380. In other words, "relation back does not apply to wrongful death claims barred by the three year condition precedent." Id. at 380-81, 44 A.3d 380.
The Court of Appeals discussed Maryland Rule 15-1001, stating that the purpose of the Rule "is to implement the one-action provision in the statute. The purpose of that provision `is to protect a defendant from being vexed by several suits instituted by or on behalf of different equitable plaintiffs for the same injury when all of the parties could be joined in one proceeding.'" Id. at 380, 44 A.3d 380 (citation and emphasis omitted). As to prejudice to Ricky, the Court of Appeals observed that it was "difficult to consider how a claim by Ricky could have any value, even if it were timely asserted." Id. As to the plaintiffs' duty, the Court of Appeals stated, in no uncertain terms, that the plaintiffs should have identified Ricky as a use plaintiff, despite their lack of knowledge of his whereabouts. Id. at 381, 44 A.3d 380. The Court of Appeals determined that Maryland Rule 15-1001(b) "requires that `all persons who are or may be entitled by law to damages' be named as plaintiffs. Those beneficiaries who do not join are to be named as use plaintiffs." Id. According to the Court of Appeals, the plaintiffs could have named Ricky as a use plaintiff and stated in their complaint that "any address for use plaintiff Ricky was unknown." Id. at 382, 44 A.3d 380. In so making that representation in a complaint, however, the Court of Appeals stated that the plaintiffs' counsel first had a duty to conduct a good faith and reasonably diligent search for the use plaintiff. Id. The Court of Appeals concluded:
Id. The Court of Appeals thus held that the trial court abused its discretion in dismissing the plaintiffs' wrongful death claims as a sanction for omitting Ricky as a use plaintiff. Id. at 384-85, 44 A.3d 380. The Court of Appeals remanded the case for consideration of "what, if any, sanction for the omission is appropriate from the standpoint of reinforcing for the Bar as a whole the requirement for naming, as a use plaintiff, a potential beneficiary." Id. at 385, 44 A.3d 380.
In a section labeled "Some Considered Dicta," in Muti, id. at 384, 44 A.3d 380 the Court of Appeals stated the following:
(Emphasis added).
After the Court of Appeals's decision in Muti, on July 26, 2012, the Standing Committee on Rules of Practice and Procedure issued its 174th Report, including a Notice of Proposed Rules Changes, stating that amendments to Maryland Rule 15-1001 were necessary:
Maryland Rule 15-1001 was amended, effective January 1, 2013. The Rule now requires that a wrongful death complaint state the last known address for each use plaintiff and the party bringing the action state that he or she conducted a good faith and reasonably diligent effort to identify, locate, and name all individuals who might qualify as use plaintiffs. The new Rule requires that notice to the use plaintiffs be achieved through in personam service of process as set forth in Maryland Rule 2-121, whereas the old Rule simply required
Returning to the case at hand, we review the decision to grant or deny the motion for judgment notwithstanding the verdict de novo. Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159 (2011). In agreement with appellant, we conclude that the use plaintiffs, in the four consolidated matters, are not parties to the cases as they failed to join the actions and are, therefore, unable to recover damages. We reverse and vacate the judgments entered against appellant in favor of the use plaintiffs. We explain.
The record demonstrates in no uncertain terms that the use plaintiffs never joined the action as party plaintiffs, and that appellees and their counsel misapprehended the need to join the use plaintiffs as party plaintiffs. Although amended complaints were filed identifying the use plaintiffs as use plaintiffs, it is undisputed that the use plaintiffs never filed a motion to intervene, no attorney filed a notice of appearance on behalf of the use plaintiffs, and the plaintiffs never filed amended complaints or amendments by interlineation naming the use plaintiffs as party plaintiffs.
The identification of an individual as a use plaintiff does not designate the individual as a party plaintiff with the right to recover damages for the wrongful death of the decedents. C.J.P. § 3-904(f) provides that only one action for wrongful death may lie with respect to the death of a person. In keeping with this requirement, Maryland Rule 15-1001(b)
In Williams, 192 Md.App. at 452, 995 A.2d 744, we stated that Maryland Rule 15-1001 was "in the nature of a joinder rule or a condition precedent that require[d] all known statutory beneficiaries, i.e., the real parties in interest, be identified as parties to the litigation." We explained, however, that Maryland Rule 15-1001 did not require the statutory beneficiaries to "formally join" the action, and stated: "The words `to the use of' simply identify plaintiffs who have not formally joined the action, but, as real parties in interest, they are plaintiffs whose interests must be acknowledged and protected throughout the litigation." Id. at 455, 995 A.2d 744. The concept that use plaintiffs are real parties in interest comports with the requirement, pursuant to C.J.P. § 3-904(f), that only one action for wrongful death may lie — thus, all beneficiaries, all those with a possible stake in the outcome of the case, must be identified in the case, although they need not formally join and take on the mantle of party plaintiff. As we explained in Williams, id. at 460-61, 995 A.2d 744:
(Emphasis added) (footnote and one citation omitted) (alteration in original).
As such, it is evident that use plaintiffs are, in fact, different from party plaintiffs in several key respects: (1) use plaintiffs do not join the action, but rather the action proceeds to their use or benefit; (2) use plaintiffs cannot recover damages in their own names as the action is brought to their use or benefit and not in their own name or on their own behalf; and (3) use plaintiffs' recovery is confined to the methods provided for in C.J.P. § 3-904(c) in that the recovery awarded for the party plaintiffs is for the benefit of all plaintiffs — party plaintiffs and use plaintiffs. In short, appellees' contention otherwise — that use plaintiffs are party plaintiffs and need not join the action to recover — is an incorrect assessment of the law. Indeed, appellees' contention that designation as a use plaintiff accomplishes joinder of the use plaintiff is in conflict with the language of the Rule and case law, which clearly state that a use plaintiff is someone who has not joined the action. This point was made explicit in the Court of Appeals's decision in Muti. The Court of Appeals unequivocally stated:
Muti, 426 Md. at 384, 44 A.3d 380 (emphasis added).
Significantly, the language in Muti is contained in a section labeled "Some Considered Dicta." From our perspective, there is a range of dicta and the language at issue rose above the level of mere dicta or an errant comment. In Bryan v. State Rds. Comm'n, 115 Md.App. 707, 712-13, 694 A.2d 522 (1997), aff'd, 356 Md. 4, 736 A.2d 1057 (1999), we discussed statements of dicta, stating:
(Citations and emphasis omitted) (first omission added). It is evident in Muti that, by labeling the section "Some Considered Dicta" and by including several paragraphs within the section for the purpose of clarifying the case law on use plaintiffs, the dicta is more than just a "casual or hurried word[,]" or a "by the way" statement. Bryan, 115 Md.App. at 713, 712, 694 A.2d 522 (citation omitted). The language in Muti is well considered dicta and entitled to "significant persuasive weight." Id. at 713, 694 A.2d 522 (citation omitted). The persuasive weight of the language was evident given the Standing Committee on Rules of Practice and Procedure proposed amendments to Maryland Rule 15-1001, incorporating the holdings in Muti to require, inter alia, "certain action by such individuals who wish to make a claim[.]"
Ending any debate about the matter, the Court of Appeals adopted the amendments, and the newly effective Maryland Rule 15-1001 now contains language incorporating the considered dicta from Muti — namely, that use plaintiffs are required to file a complaint or motion to intervene by the statutory deadline to participate in the action or claim a recovery. See Md. R. 15-1001(e)(2). The new language of Maryland
In this case, that the use plaintiffs were, on occasion, identified by the plaintiffs as "plaintiffs" or that the use plaintiffs participated in pretrial depositions and testified at trial, simply put, does not convert them to party plaintiffs. Appellees are correct that the record reflects that, on a few occasions, the plaintiffs referred to the use plaintiffs generally as "plaintiffs." For example, in the proposed voir dire, the plaintiffs proposed asking the jury panel the following question: "Is any member of the panel or any member of your immediate family, or close circle of friends related to or otherwise acquainted with the plaintiffs: [lists names of plaintiffs and use plaintiffs]."
As the use plaintiffs did not join the action and did not timely move to join the action, they are now barred from doing so as the statute of limitations in each of the cases has expired. C.J.P. § 3-904(g) provides a general three year statute of limitations for wrongful death actions, requiring that actions for deaths caused by occupational disease be filed within three years after the discovery of the cause of death. Under the Second Amended and Restated Asbestos BI Claims Resolutions Procedures for claims against appellant, the statute of limitations is tolled as follows: claims accruing after November 16, 1985, and prior to August 26, 2009, may be brought against appellant before (1) the expiration of the ninety-day period immediately following September 28, 2010, when the Claims Materials were made public, i.e. December 28, 2010, or (2) the expiration of the statute of limitations
As to the four cases at issue, the statute of limitations expired on the following dates: (1)
In sum, any claims by the use plaintiffs in their own right as party plaintiffs were required to be asserted by December 28, 2010, as to the James and Carter cases, February 21, 2011, as to the Lawrence case, and July 24, 2012, as to the Hewitt case. The use plaintiffs failed to assert claims as party plaintiffs by any of the above listed dates.
The use plaintiffs are barred from asserting claims because the doctrine of relation back is not applicable. Although Maryland generally freely permits amendments and relation back to the date of the original filing, "[w]hen amendment is sought to add a new party to the proceedings, that principle is inapplicable because any cause of action as to that party is, of course, a new cause of action." Grand-Pierre, 97 Md.App. at 175-76, 627 A.2d 550 (emphasis in original) (citations omitted). In addition, relation back is not applicable in circumstances where the new cause of action involves a "wholly distinct measure of damages," and "pyramid[s] the amount sought." Morrell v. Williams, 279 Md. 497, 507-08, 366 A.2d 1040 (1976).
In this case, amending the complaints would involve adding the fifteen use plaintiffs as new party plaintiffs bringing new causes of action and increasing the overall amount of damages sought. As such, the doctrine of relation back to the original filings of the amended complaints is not
Appellant contends that the circuit court erred in the Hewitt case by refusing to instruct the jury as to apportionment of damages and by excluding its expert's testimony on the issue of apportionment. Appellant argues that this Court has previously permitted apportionment pursuant to Restatement (Second) of Torts Section 433A "when a reasonable basis exists to apportion damages between two or more causes of injury." Appellant asserts that the principle of apportionment of damages is not a subset of comparative fault, as apportionment is decided "without regard to fault or negligence by the plaintiff."
Relying on Dafler v. Raymark Indus., Inc., 259 N.J.Super. 17, 611 A.2d 136 (N.J.Super.A.D.1992), aff'd per curiam, 132 N.J. 96, 622 A.2d 1305 (1993), appellant maintains that New Jersey appellate courts have ruled that damages may "be apportioned between smoking and asbestos exposure in a lung cancer case where the plaintiff's smoking and asbestos histories were established and epidemiological evidence showed the risk for lung cancer from each agent."
Appellant contends that the circuit court erred by rejecting apportionment where "the epidemiological evidence of relative risks was undisputed." Appellant argues that Dr. Kerby was prepared to offer the opinion that Hewitt's lung cancer was caused 75% by smoking and 25% by asbestos exposure, and the plaintiffs failed to present "a specific scientific, medical, or factual challenge to [t]his opinion[.]" Appellant asserts that, in disregarding apportionment, the circuit court simply assumed that it was not possible.
Appellees respond that Hewitt suffered one indivisible lung cancer injury, and that the circuit court properly rejected what is in essence a comparative fault argument. Appellees contend that "Maryland law does not allow for comparative fault or apportionment of damages for asbestos-related cancers[.]" Appellees argue that appellant's reliance on New Jersey law is not dispositive as New Jersey follows a form of comparative fault, while Maryland does not.
As to Dr. Kerby's testimony, appellees contend as follows: "Because Maryland is
In a reply brief, appellant contends that appellees confuse apportionment with comparative fault. Appellant argues that apportionment may be appropriate even where comparative fault is not available. Appellant asserts that "[t]he question is whether a reasonable basis exists to allow for apportionment, not whether it is proven with precision and exactitude."
Restatement (Second) of Torts, Section 433A, entitled "Apportionment of Harm to Causes," provides as follows:
Comment a to Section 433A provides:
In Mayer v. N. Arundel Hosp. Ass'n Inc., 145 Md.App. 235, 249-50, 802 A.2d 483, cert. denied, 371 Md. 70, 806 A.2d 680 (2002), we discussed apportionment of damages pursuant to Restatement (Second) of Torts Section 433A, stating:
(Footnote omitted). We stated that "[t]he question of whether a harm is capable of apportionment between two or more causes is for the court if it can be decided as a matter of law." Id. at 253, 802 A.2d 483.
In Mayer, id. at 254-55, 802 A.2d 483, we discussed Section 433A and concluded:
(Footnote omitted).
In Dafler, 611 A.2d at 138, an asbestos product liability case, the Superior Court of New Jersey, Appellate Division, affirmed the jury's apportionment of responsibility between the plaintiff and the defendant, finding that the plaintiff contributed 70% to his lung cancer by cigarette smoking and that the defendant contributed 30% to the lung cancer by its asbestos products used in shipbuilding. The Superior Court discussed the principle of apportionment generally, noting that apportionment of damages among multiple causes is "a well-recognized tort principle" and embodied in the Restatement (Second) of Torts Section 433A. Id. at 141. The Superior Court stated:
Id. at 142 (quoting Prosser and Keeton, Law of Torts § 52, at 345 (5th ed.1984)).
The Superior Court held that the "burden of proving that the harm is capable of apportionment is on the party seeking it[.]" Id. at 142. The Superior Court observed that, although the issue of apportionment in asbestos and cigarette industry cases presented was one of first impression, New Jersey courts had approved apportionment of damages in other circumstances, including a worker's compensation case and a medical malpractice case. Id. at 144. As an aside, the Superior Court observed that apportionment was consistent with the principles of the state's Comparative Negligence Act. Id. at 145.
Apportionment of damages has also been applied under federal law, specifically in cases where an employee seeks relief pursuant to the Federal Employers' Liability Act ("FELA") for injuries sustained during the course of employment. For example, in CSX Transp., Inc. v. Bickerstaff, 187 Md.App. 187, 249, 978 A.2d 760, cert. denied, 411 Md. 600, 984 A.2d 244 (2009), a FELA case, this Court discussed the issue of damages, observing that there was a "long line of FELA case law in which courts permitted the apportionment of damages for non-negligent causes." (Citations omitted). In Bickerstaff, id. at 250-51, 978 A.2d 760, we determined that the trial court's failure to instruct the jury on apportionment in a FELA case "may constitute reversible error[.]" This Court stated, however, that to warrant giving an instruction on apportionment of damages, there must be sufficient evidence adduced at trial to support the instruction. Id. at 251, 978 A.2d 760. We described sufficient evidence as follows: "[A] defendant need only produce `some evidence to support its proposed apportionment instruction' and is `not required to demonstrate an exact percentage' or a `mathematical proportion' representing the likelihood of the causal relationship." Id. (citation omitted).
Returning to the matter at hand, we conclude that the circuit court erred in the Hewitt case in refusing to instruct the jury as to apportionment of damages and by excluding Dr. Kerby's testimony on the issue of apportionment. In opposing Dr. Kerby's testimony and an instruction on apportionment, plaintiffs' counsel argued only that apportionment was not possible and that trial courts have not addressed apportionment of damages for smoking in asbestos cases. Rather than considering whether Dr. Kerby's testimony supported the giving of an apportionment instruction, the circuit court expressed doubt about the jury's ability to apportion damages and stated that the "effort to apportion doesn't really work[.]" In our view, both the circuit court and appellees misunderstood the concept of apportionment, and Maryland case law on the subject.
We begin by stating that the issue of apportionment concerns causation, not comparative negligence as appellees urge this Court to determine. Comparative fault or comparative negligence involves determination of the relative percentages of fault between joint tortfeasors — i.e. in a negligence action, comparative negligence involves looking at the respective duties and breaches of the joint tortfeasors. Such a system necessarily requires that a jury consider the actions of the joint tortfeasors leading up to the injury to determine whether both were at fault and, if so,
Apportionment of damages, on the other hand, involves instances where there are two or more causes and a reasonable basis exists for determining the contribution of each cause to a single harm — i.e. in a negligence action, apportionment of damages involves looking at the causes of the injury, not the duties and breaches of the tortfeasors. Restatement (Second) of Torts, Section 433A(1)(b). Under apportionment, the relative fault of the parties is not considered and the doctrine applies "whenever two or more causes have combined to bring about harm to the plaintiff[.]" Restatement (Second) of Torts, Section 433A, cmt. a. This Court has adopted and applied apportionment of damages in certain cases. See Bickerstaff, 187 Md.App. at 249-51, 978 A.2d 760 (a FELA case); Gress, 150 Md.App. at 388-89, 388 n. 11, 820 A.2d 616 (an asbestos cases with asbestos industry and cigarette industry defendants); Mayer, 145 Md.App. at 249-50, 254-55, 802 A.2d 483 (a medical negligence case). Thus, the doctrines of apportionment of damages and comparative fault/negligence are distinct and involve different considerations.
Under relevant Maryland case law and the Restatement (Second) of Torts, apportionment of damages between several causes of an injury is appropriate in certain circumstances. Pursuant to Restatement (Second) of Torts, Section 433A(1), apportionment of damages between two or more causes is appropriate "where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm." Multiple causes may include the combination of acts of two or more parties, an innocent act and a negligent act, or an aggravation of a preexisting injury. Restatement (Second) of Torts, Section 433A, cmt. a.
Although not binding authority, we find persuasive the Superior Court of New Jersey's opinion in Dafler, a case involving a similar factual scenario as that presented in this case. In Dafler, 611 A.2d at 138, the Superior Court of New Jersey affirmed the jury's award which apportioned damages as to the plaintiff's lung cancer, finding that 70% of the damage was caused by the plaintiff's cigarette smoking and that 30% of the damage was caused by the defendant's use of asbestos products in shipbuilding. Notably, in Dafler, id. at 140-41, both parties presented expert testimony on the issue of apportionment. In Dafler, id. at 140, the plaintiff suffered a single harm — lung cancer — caused by a six-year occupational exposure to asbestos and a forty-five year long cigarette smoking habit. In concluding that the issue of apportionment of damages was properly submitted to the jury, the Superior Court of New Jersey emphasized that the result was "rational and fair" and certainly "fairer than requiring defendant to shoulder the entire causative burden where its contribution in fact was not likely even close to 100%." Id. at 146. The Superior Court's determination involving apportionment was not grounded in principles of comparative negligence.
In this case, Hewitt suffered a single harm — lung cancer. He experienced an occupational exposure to asbestos through his work as a laborer, mechanic steamfitter and pipe fitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel
In sum, we conclude that the circuit court erred in excluding Dr. Kerby's testimony and, without considering the testimony, erred in refusing to instruct on apportionment of damages. We reverse the judgments entered against appellant in favor of the plaintiffs in the Hewitt case and remand for a new trial.
Appellant contends that the circuit court erred in instructing the jury that suppliers and installers have a duty to inspect, test, and analyze the products they supply or install as such a duty is imposed on manufacturers, not suppliers and installers. Appellant argues that Maryland law "imposes a duty on supplier/installers to test and inspect only when the supplier/installer is alleged to have `been negligent in the installation itself.'" (Citation omitted). Appellant asserts that there was no claim of negligent installation in the case, and that the circuit court, by instructing the jury that W & G "had a duty when no evidence was presented to show whether W & G fulfilled or breached that duty[,]" "created a false impression that [appellant] conceded liability." Appellant maintains that it was "greatly prejudiced" by the instruction and reversal is warranted.
Appellees respond that the circuit court's instructions, as a whole, covered the applicable law regarding negligence and strict liability. Appellees contend that the circuit court's instruction on the duty of installers/suppliers to inspect, test and analyze was part of the state-of-the-art instruction and applicable in both negligence and strict liability cases. Appellees argue that appellant, as a supplier/installer, is held to the same standard as manufacturers under Maryland law. Appellees maintain that appellant "performed additional acts which impose a higher standard of care upon it as a supplier-installer[,]" which encompassed "a duty to discover[.]" According to appellees, the plaintiffs "presented significant evidence establishing
In Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 186, 604 A.2d 445 (1992), a case involving the deaths of two former shipyard workers caused by malignant mesothelioma resulting from inhalation of microscopic asbestos fibers, the Court of Appeals discussed whether a nonmanufacturing supplier has a duty to inspect or test a product. In Balbos, id. at 198-99, 604 A.2d 445, the Court of Appeals noted that the Restatement (Second) of Torts applied different standards of knowledge to manufacturers and nonmanufacturing suppliers as to whether their products are dangerous or defective, stating:
(Footnote and some internal citations omitted).
In Balbos, id. at 199-200, 604 A.2d 445, the Court of Appeals observed that it had previously held that a supplier-installer, like Porter, is held to a "should have known" standard when the action is based upon principles of strict liability, leaving open the question of whether the standard for a supplier-installer's knowledge would be different if the action were based upon a negligent failure to warn. The Court of Appeals concluded: "We now hold that, as to a supplier-installer, it is not." Id. at 200, 604 A.2d 445. In so concluding, the Court of Appeals stated:
Balbos, 326 Md. at 203, 604 A.2d 445 (some internal citations omitted).
In ACandS, Inc. v. Abate, 121 Md.App. 590, 697, 710 A.2d 944 (1998), this Court held that the trial court did not err in instructing the jury on the duties of nonmanufacturers. In ACandS, id. at 700-01, 710 A.2d 944, the trial court instructed the jury with instructions almost identical to the instructions at issue in this case concerning the duties of nonmanufacturing suppliers and installers. We held as follows:
Id. at 701-02, 710 A.2d 944 (footnotes omitted).
When reviewing jury instructions, we give the trial court "wide discretion as to the form ... and, absent a clear abuse of that discretion, an instruction will not be reversed on appeal." Blaw-Knox Constr. Equip. Co. v. Morris, 88 Md.App. 655, 666-67, 596 A.2d 679 (1991). "Moreover, when an objection is raised as to a court's instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole." Id. at 667, 596 A.2d 679 (citation and internal quotation marks omitted). We will not "condemn a charge because of the way in which it is expressed or because an isolated part of it does not seem to do justice to one side or the other." Nora Cloney & Co. v. Pistorio, 251 Md. 511, 515, 248 A.2d 94 (1968). Even in cases where error is found, "[i]t has long been the policy in this State that [an appellate court] will not reverse a lower court judgment if the error is harmless." Flores v. Bell, 398 Md. 27, 33, 919 A.2d 716 (2007). On appeal,
Barksdale v. Wilkowsky, 419 Md. 649, 669-70, 20 A.3d 765 (2011) (citations omitted). As to prejudice, the complaining party must show not only "that prejudice was possible[,]" but also "that it was probable." Id. at 662, 20 A.3d 765 (emphasis in original). In situations where prejudice is "not readily apparent," the Court of Appeals instructs that a "reviewing court must focus on the context and magnitude of the error." Id. at 665, 20 A.3d 765.
In CSX Trans., Inc. v. Pitts, 203 Md.App. 343, 392, 38 A.3d 445 (2012), aff'd, 430 Md. 431, 61 A.3d 767 (2013), we held that it was error for the trial court to instruct the jury that the violation of a statute was evidence of negligence where it was undisputed that the defendant was not alleged to have violated a statute. In Pitts, id. at 393, 38 A.3d 445 we nonetheless held that the jury instruction was harmless "[a]bsent evidence of any prejudice, confusion, or even a question by the jury as to the instruction[.]"
In this case, upon review of the circuit court's instructions as a whole, we are not persuaded that the circuit court abused its discretion or erred in instructing the jury on the duties owed by manufacturers and nonmanufacturer suppliers/installers and on state of the art. The circuit court instructed the jury as to all of the applicable law. The circuit court instructed the jury that the duty of the "non manufacturer supplier to warn plaintiffs is different under some circumstances than the duty of a manufacturer[,]" and that an installer-supplier may be under a duty to discover the products it installed were dangerous if the installer-supplier's employees installed the products and the installer created a danger to other workers.
In Balbos, 326 Md. at 203, 604 A.2d 445, the Court of Appeals stated: "In many cases retailer-installers[, who act as more than a conduit of goods,] have been held to a duty to inspect or test a product, although the standard of care is not necessarily as high as that imposed on a manufacturer. It appears that in
Alternatively, we observe that to establish that an erroneous instruction warrants reversal, appellant bears the burden of demonstrating prejudice. Barksdale, 419 Md. at 669, 20 A.3d 765. Here, despite contentions to the contrary, appellant has failed to demonstrate prejudice. The circuit court correctly instructed the jury as to the duties owed by nonmanufacturer installer-suppliers, and how, under certain circumstances, the nonmanufacturer installer-supplier can be held to a higher standard of care if the installer-supplier undertakes certain actions. In the midst of the instructions, the circuit court gave the brief instruction at issue. The instruction was not repeated or elaborated upon, and the circuit court continued instructing the jury. Appellant does not contend that the instruction was an incorrect statement of law as to the duty owed by a manufacturer. Rather, appellant contends that the instruction improperly equated W & G's duty as an installer-supplier with that of a manufacturer. We note, however, that, at trial, appellant had ample opportunity to present — and did present — evidence demonstrating that W & G was an installer-supplier that did not manufacture or design the asbestos-containing products it installed and repaired.
From the voluminous record in the case, one of the only references we find concerning the instruction is an indirect reference by plaintiffs' counsel in closing argument, stating that when W & G's files were combed through after it ceased operations in 1984, "[t]here was no testing information [found]" and the "files were incomplete." The record reveals, however, that the parties previously had entered into a stipulation, which was read into the record, and included the following:
Plaintiffs' counsel's reference in closing argument to the lack of records regarding testing information was simply a restatement of the stipulation between the parties. Under this circumstance, we find it difficult to discern how the reference in closing argument to the lack of testing documentation was prejudicial. Appellant fails, on brief, to provide a reference to any other argument made by plaintiffs' counsel "citing the lack of testing," and we decline to comb through the record to substantiate appellant's claim. There were no questions from the jury as to the erroneous instruction
(Emphasis added).
Survival $1,386,686.07 (total) Loss of consortium $ 350,000 (total) Wrongful death $ 550,000 (total) Plaintiff Annette Hewitt $ 350,000 Plaintiff Roger C. Hewitt, Jr. $ 200,000
As explained in Issue I, supra, the judgments entered against appellant as to wrongful death in favor of use plaintiffs Idalyn Williams and Penny Hewitt are reversed and vacated, and the use plaintiffs are time barred from bringing the claims.
