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Application of the “Frequency, Regularity, Proximity Test” in Asbestos Matters

Scapa Dryer Fabrics, Inc. v. Carl L. Saville
No. 39 (D.Md. 2011)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

Scapa Dryer Fabrics, Inc. (“Scapa”) appealed the Court of Special Appeals decision affirming the judgment of the Circuit Court for Baltimore City, which awarded judgment to Carl L. Saville (“Mr. Saville”). One of the issues presented to the Court of Appeals was the sufficiency of the evidence presented on the issue of causation regarding Mr. Saville’s asbestos-related negligence claim.

Mr. and Mrs. Saville filed suit against approximately thirty (30) companies claiming negligence, strict liability, loss of consortium, conspiracy and fraud relating to Mr. Saville’s asbestosis, lung cancer, and mesothelioma. A judgment against Scapa was entered in the amount of $3,000,000. The case was remanded on appeal to the Court of Special Appeals and pursuant to the new trial Mr. Saville obtained a verdict in the amount of $1,718,000 against Scapa. Saville then appealed the second verdict. The Court of Special Appeals affirmed the Circuit Court’s judgment in finding that there was sufficient evidence that Scapa’s product was the proximate cause of Mr. Saville’s injuries to support the trial court’s denial of Scapa’s motions for judgment and for JNOV. Therefore, on appeal to the Court of Appeals, Scapa presented the question of whether Mr. Saville presented sufficient evidence to satisfy the “frequency, regularity, proximity” test for substantial factor causation as to its products.

Significantly, Scapa challenged the Court of Special Appeals’ application of the “frequency, regularity, proximity” test, enunciated in Eagle-Picher v. Balbos, which is the common law evidentiary standard used for establishing substantial-factor causation in negligence cases alleging asbestos exposure. The Court’s task upon Scapa’s challenge to the sufficiency of Mr. Saville’s evidence was to determine whether the Court of Special Appeals judgment, upholding the trial court’s dismissal of Scapa’s Motions for Judgment and for JNOV, on Mr. Saville’s claims was in error.

In Balbos, the Court described how the court would assess “whether the exposure of any given bystander to any particular supplier’s product [would] be legally sufficient to permit a finding of substantial-factor causation,” noting that:

The finding involves the inter-relationship between the use of a Defendant’s product at the workplace and the activities of the Plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity and 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.

Relying on the Balbos “frequency, regularity, proximity” test, the Court of Special Appeals held that there was “more than enough circumstantial evidence to conclude that [Mr. Saville] performed a significant amount of work on Scapa’s product . . . [that Mr. Saville] was significantly exposed to Scapa’s product . . . and that [the jury] did not contradict itself when it found [Scapa] liable and the [c]ross-[d]efendants not liable.”

Scapa asserted that “[t]he Court of Special Appeals’s published opinion in Saville II stands for the proposition that a plaintiff in an asbestos-product liability case may reach the jury if he establishes the mere possibility of an undefined, unquantifiable exposure to asbestos[,]” and that the intermediate appellate court’s holding “waters down” the Balbos test. The Court of Appeals disagreed. The evidence was that Mr. Saville regularly handled and/or worked in arms length to Scapa’s asbestos-containing products on a daily basis for at least one year, and this was legally sufficient to permit a jury question on proximate cause and, therefore, the denial of Scapa’s motions for judgment and JNOV were not in error. In addition, the “frequency” prong of the Balbos test requiring “frequency of use [of the product]” in the Plaintiff’s workplace was met by the evidence. The evidence presented supported Mr. Saville’s periodic, i.e., regular, exposure to Scapa’s asbestos-containing products and respirable asbestos fibers emanating from their upkeep; thus, it was sufficient to warrant jury consideration.

The last prong of the Balbos test requires evidence of the proximity of the plaintiff, “in distance and in time,” to the use of the product. Scapa contended that Mr. Saville presented no evidence that he was in the proximity of respirable asbestos fibers released from Scapa’s product. The Court found that, based upon the evidence, an inference could have been reasonably drawn from the jury about the proximity of Mr. Saville to Scapa’s asbestos-containing product.

Notably, the Court held that its holding on the sufficiency of the evidence question was not as emphatically stated as the Court of Special Appeals’ holding because the Court merely concluded that the evidence was sufficient to survive the motions, but declined to state that the evidence “conclusively established” proximity as a matter of law. Nonetheless, the Court of Special Appeals did not err in affirming the denial of Scapa’s motions for judgment and JNOV, nor did that court misapply or misinterpret the rigors of the Balbos test.