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Shetterly v. Raymark Industries

July 1, 1997

MILDRED A. SHETTERLY, PERSONAL REPRESENTATIVE FOR THE ESTATE OF WILLIAM BERNARD SHETTERLY, DECEASED; LISA SHETTERLY; CHARLES GRIFFITH; JEAN BETH GRIFFITH; EDWARD SWORDS; IRENE SWORDS; GEORGE DIXON SMITH; ROSALIE A. SMITH; GEORGE J. SKLERES; DIMITRA SKLERES; LAMONT THOMPSON, PERSONAL REPRESENTATIVE FOR THE ESTATE OF EDWARD DICKSON, DECEASED; MARTHA SMITH; ARTHUR DRAGER, AS GUARDIAN FOR JAMES WELDON SMITH, A DISABLED PERSON,

PLAINTIFFS-APPELLANTS,

v.

RAYMARK INDUSTRIES, INCORPORATED,

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge. (CA-82-3431-HAR, CA-82-3154-HAR, CA-80-2612-S, CA-83-857-HAR, CA-80-2613-K)

Before HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge

Argued: April 9, 1997

Reversed in part and affirmed in part by published opinion. Judge Murnaghan wrote the opinion, in which Judge Hall and Senior Judge Butzner joined.

OPINION

Plaintiffs are former employees, or representatives of former employees, of Bethlehem Steel Corporation's Key Highway Shipyard ("Key Highway"). They allege that they suffered asbestos-related illnesses from their exposure to asbestos while working at Key Highway. They are suing Raymark Industries, the manufacturer of asbestos products which were used at the shipyard. The district court granted a directed verdict to Raymark Industries at the close of Plaintiffs' case finding that there was insufficient evidence of identification and exposure to Raymark's products. In addition, the district court granted directed verdicts on all claims for loss of consortium, against the Estate of Edward Dickson for the failure to introduce into evidence Letters of Administration as proof of the existence of a personal representative, and against the guardian of James W. Smith for failure to introduce evidence appointing a guardian. After the district court's decision, Raymark Industries filed for bankruptcy, and the appeal was stayed pending the disposition of the bankruptcy proceedings.

Since we find that the district court erred in granting a directed verdict as to all plaintiffs, we reverse.

I. FACTS

The case arises from asbestos-related personal injuries from exposure to products which contained asbestos. Plaintiffs are all former employees, or the representatives of former employees, of Bethlehem Steel Corporation. Bethlehem Steel operated the Key Highway Shipyard in Baltimore, Maryland.

Each Plaintiff, except George Skleres, was a "bystander", someone who worked in the vicinity of the asbestos products but had no regular contact with them. George Skleres worked in the shipyard storeroom and had direct contact with asbestos.

The district court bifurcated the trial. In the first instance, the district court tried the issues of whether Plaintiffs had asbestos-related injuries and whether Plaintiffs were exposed to Raymark's product. The court reserved for the second stage of the trial the issues of negligence, strict liability and proximate cause.

A. George Skleres

Skleres worked in the storeroom at Key Highway from 1964 to 1970 and from 1972 to 1982. His position was that of a storeroom man. Skleres testified that on a regular basis he worked with asbestos blankets or cloth that came in rolls and were stored in the storeroom. When people requested asbestos cloth, Skleres measured the cloth and cut the proper amount. When the cloth was cut, asbestos fibers were released into the air. Skleres could not identify the brand of asbestos cloth used in the storeroom, but one of his coworkers, Bruce Frizzell, testified that Raybestos *fn1 cloth was "the main source" of cloth stored and dispensed in the storeroom.

B. George Dixon Smith

Smith worked as a laborer in the Y department. One of his duties was to clean up asbestos material, including blankets, left by other workers. Smith also worked in the rigging department. He testified that he worked with welders and burners who constantly used asbestos blankets. He also testified that he was familiar with three of the other plaintiffs, William Shetterly, George Skleres and Edward Swords, from working near them on several occasions. Moreover, Smith indicated that he was familiar with Skleres from the storeroom and that he would go to the storeroom on occasion.

C. Edward Swords

Swords worked from 1943 to 1981 at Key Highway. For almost the entire period, Swords worked as a shipfitter. Swords testified that he carried a piece of asbestos cloth with him and used it to kneel down upon the hot steel decks. Swords worked in the vicinity of welders and burners who used asbestos cloth.

Swords also testified that he obtained asbestos cloth from the supply room on at least eight to ten occasions. He also testified that while the workers in the storeroom were cutting the blankets he would help fold them.

D. Charles Griffith

Griffith started as a bolter-up at Key Highway and later became a sheet metal mechanic. Griffith worked around the engine room, boiler room and pump room in the presence of insulators who were tearing off and replacing asbestos cloth. In addition, he testified that he obtained asbestos cloth and worked around asbestos cloth which was obtained from the storeroom.

E. James Weldon Smith

James Smith was unable to testify at trial. His wife testified that he was a welder in the shipyard and that his clothes were often covered with dust. Ocam Gray, another welder at Key Highway, testified that he worked with James Smith approximately 40 percent of the time. He stated that Smith's exposure to asbestos would be of a similar magnitude to his own. Gray also testified ...


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