Maryland Court of Appeals Holds That Trial Judge Was Within His Discretion When Refusing To Allow Asbestos Defendant To Withdraw Deemed Admissions

In Wilson v. John Crane, Inc., the Maryland Court of Appeals held that:

"[T]he trial court, in disallowing Garlock leave to withdraw or amend certain admissions deemed to have been conclusively established by default, did not commit an abuse of its discretion. The trial court specifically found that petitioners would suffer prejudice if Garlock was allowed to withdraw or amend its admissions, as Garlock did not bring its motion to withdraw or amend until after discovery was closed and the trial was scheduled to begin within days."

In this case, the motion to withdraw the deemed admissions was made only days before the trial.  The plaintiff argued that withdrawal of the admissions would be unfairly prejudicial, because plaintiff had selected trial witnesses and had prepared experts in reliance on the admissions.

In making this ruling, the Court of Appeals referred to the elephantine mass of asbestos litigation and the case management problems this creates for the Maryland courts.

The Court was also unimpressed with the stated reasons for the defendant's failure to make a timely response to the requests for admissions:

Garlock was unable to provide the trial court with any legitimate excuse as to why it did not answer petitioners’ request for admissions within the temporal confines of Rule 2-424 (b). Affidavits were filed by Garlock’s counsel that suggested that its failure to respond was due to an oversight by both a paralegal who had the task of monitoring new filings in the eFiling system and the supervising attorney of that paralegal. In its memorandum in support of its motion to withdraw or amend its admissions, Garlock further casts some of the blame on the “blizzard of electronic filings” that the eFiling system has effected. We are not prepared at this time to find that a court has committed an abuse of its broad discretion in denying a party’s motion to withdraw or amend its admissions where that party’s only excuse as to why it did not timely respond to a request for admissions amounts to a plea that, because the particular attorney or firm has undertaken a large number of clients or cases, he or it cannot adequately control or oversee the proper responses to pleadings. Attorneys are required not to undertake representations unless they can adequately monitor the pleadings. This is no less so in asbestos litigation.

Comment:  It is certainly true that there is a blizzard of electronic filings in an asbestos case in the Circuit Court for Baltimore City.  There could easily be 3000-4000 electronic filings for any particular trial cluster between the time it becomes active to the date of trial, depending on the number of defendants.  Probably at least half of that email is generated in the last 4 months before trial.  At certain deadlines, there might be a new email every five minutes all day for a particular trial cluster.  A frequently sued defendant like Garlock may be involved in 12 trial clusters per year.  The argument based on the blizzard of electronic filings, in fairness, cannot be dismissed so easily.  There ought to be some sort of electronic coding or flagging of pleadings that are directed to a specific party. 

Another point is that the asbestos litigation in the Circuit Court for Baltimore City is still subject to the venerable "Case Management Order No. 1", which was signed way back in 1987.  Under that Case Management Order,  the time to respond to defendant-specific requests for admissions was enlarged from 30 days to 60 days.  The Court of Appeals doesn't mention the 60 day time period to respond, so maybe that portion of the Case Management Order has been amended at some point over the years (but I don't think so).

Anyway, assuming a 60 day period to respond, plus three extra days for service, here is how the chronology looked:

April 5, 2002 -- Requests for Admissions served.

Friday, June 7, 2002 -- Responses to requests for admissions due.

June 11, 2002 -- A couple of other defendants moved to withdraw or amend their deemed admissions, which motion was later granted by the trial court.

June 17, 2002 -- Garlock's motion to withdraw or amend deemed admissions filed.

June 24, 2003 -- Garlock's motion denied.

June 26, 2002 -- Start of trial.

In sum, the defendant here was only 10 days late in responding to the requests for admissions, which puts the plaintiff's claims of prejudice in a little better perspective. 


Maryland Court of Special Appeals Affirms Summary Judgment In Favor of Landowner in Asbestos Case

In Wajer v. Baltimore Gas and Electric Co., No. 697, Sept. Term, 2003 (Maryland Court of Special Appeals, June 4, 2004), the court affirmed the trial court's award of summary judgment to BG&E, which had been sued by a mesothelioma plaintiff on various theories of landowner liability.

The plaintiffs sought damages for loss of consortium and injuries associated with Mr. Wajer's mesothelioma and asbestosis. Plaintiffs sued BG&E under theories of negligence, strict liability, and premises liability, based on BG&E's status as the property owner where Mr. Wajer allegedly sustained his injuries. Plaintiffs alleged that while Mr. Wajer was working on BG&E's property, he was exposed to asbestos inhalation and subsequently developed non-malignant pleural changes, asbestosis, and mesothelioma. Mr. Wajer did not directly handle asbestos products, but contended that his exposure occurred while working in proximity to other contractors who were installing asbestos insulation or products.

BG&E moved for summary judgment, arguing that it was a premises owner and that it did not owe a duty to plaintiffs because Mr. Wajer was the employee of an independent contractor when the alleged injuries occurred. The trial court granted summary judgment, and the plaintiffs appealed.

On appeal, the Court of Special Appeals affirmed, after considering the applicability of sections 414 and 343 of the Restatement (Second) of Torts. Regarding section 414, the Court noted that to satisfy the requirements of the retention of control doctrine under 414, the plaintiffs had to show that the defendant had the right to control the details of the asbestos installers' movements during their performance of their contracts, and that the right to control existed in respect to the very thing from which the injury arose. The Court reasoned that while BG&E had general safety rules, that was not enough control, as BG&E could not dictate in detail which procedures or methods the contracts had to use. Rather, the operative detail concerning what and how products were to be applied during construction remained in the control of the independent contractors.

Regarding section 343, the safe workplace doctrine, that requires the premises owner to notify the employees of the contractor of any latent or concealed dangers, provided he knows of the condition or should know of it. The owner must furnish a safe place to work for the employees of an independent contractor as though they were his or her own employees. Here, not only did BG&E not have control of the work, the asbestos products were not "latent conditions" that pre-existed the independent contractors' taking control of the premises; rather, they were brought onto BG&E's premises by the contractors and any hazards therefrom arose after and as a result of the independent contract, and did not fall under section 343.