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Although Appeal Deemed Moot, Maryland Appellate Court Analyzes Joinder of Asbestos-Related and Smoking-Related Lung Cancer Cases

Court of Special Appeals of Maryland, August 27, 2015

Jack Stidham filed a complaint in the Circuit Court for Baltimore City against several manufacturers and distributors of asbestos-containing products, contending that he developed lung cancer because of his exposure to asbestos. Mr. Stidham died after commencing the lawsuit and shortly thereafter, Mr. Stidham’s son filed an amended complaint, adding himself, his siblings, and his mother as parties to the action. The Stidhams filed a second amended complaint, adding several tobacco companies as defendants, and asserted claims against the tobacco and asbestos defendants, both individually and jointly.

The second amended complaint alleged that the tobacco and asbestos defendants failed to warn Mr. Stidham that concurrent exposure to asbestos and tobacco products increased the dangers that he faced, a concept known as the “synergy” theory. The tobacco defendants moved to dismiss the second amended complaint, arguing that the Stidhams could not properly join the claims against them with the claims against the asbestos defendants. The circuit court granted the motion to dismiss. The Stidhams moved to reinstate the tobacco defendants after moving to dismiss the claims against what they thought to be the last remaining asbestos defendants. The court granted the motion to dismiss the remaining asbestos defendants, but denied the motion to reinstate the tobacco defendants.  Believing they had a final judgment — a necessary prerequisite to pursue an appeal — the Stidhams then appealed the court’s denial of their motion to reinstate the tobacco defendants. The appeal was dismissed when certain un-adjudicated cross claims were identified. The case returned to the circuit court, where a final order was eventually entered and the claims against the tobacco defendants was dismissed “without prejudice with the right to refile.”

A second appeal ensued. The Appellate Court was asked to consider whether the lower court erred in granting the tobacco defendants’ motion to dismiss based on alleged misjoinder with the Stidhams’ previously filed claims against the asbestos defendants. It was also asked to consider whether the lower court erred when it denied the Stidhams’ motion for reinstatement of their claims against the tobacco defendants after all claims as to the asbestos defendants had been fully resolved. The tobacco defendants moved to dismiss the second appeal on the grounds that a final judgment had not been entered because the dismissal against them was without prejudice.  The Appellate Court denied the motion on the grounds that “…when the circuit court dismissed the case without prejudice and with leave to refile the claims against the tobacco manufacturers, it put the Stidhams out of court and denied them the means of further prosecuting their claims in that action. In so doing, the court entered an appealable, final judgment.”

Although the Appellate Court determined that the Stidhams had an appealable order, the court found that their appeal was moot, because with the dismissal of all of the asbestos defendants, there were no parties with which the tobacco defendants could be joined. Despite the court’s determination, it ruled that it was nonetheless entitled to reach the merits of the appeal because with 700 pending cases in which plaintiffs have attempted to join claims against tobacco defendants with claims against asbestos defendants, “the issues in this case involve recurring matters of public concern.”

Citing to Maryland’s joinder statute (which permits a plaintiff to join multiple defendants who are alleged to be jointly, severally, or alternatively liable to the plaintiff), if the issues in the litigation arise out of the same transaction, occurrence, or series of transactions, and there are a common question of law or fact with respect to all or part of the action, the Appellate Court endorsed the joinder of the tobacco defendants in the underlying action. The Appellate Court reasoned that “there can be no serious dispute that the tobacco defendants and the asbestos defendants are alleged to be jointly and severally liable to the Stidhams within the meaning of Rule 2-212(a).” Since the Stidhams claim that Mr. Stidham was “injured by the combined effects of cigarette smoke and exposure to asbestos products,” for purposes of Rule 2-212(a), the claims against the asbestos defendants “arise out of the same series of occurrences” as the claims against the tobacco defendants. The court also reasoned that whether there is scientific merit in plaintiff’s “synergy” theory, and whether the tobacco and asbestos defendants knew or should have known about the synergistic effect of cigarette smoking and exposure to asbestos were common facts supporting joinder of the actions.

Read the full decision here.

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