                                                Filed:   July 17, 1997


                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT



                            No. 88-3811
                      (CA-82-3431-HAR, et al)



Mildred A. Shetterly, etc., et al,

                                          Plaintiffs - Appellants,

          versus

Raymark Industries, Incorporated,

                                                Defendant - Appellee.




                             O R D E R


     The Court amends its opinion filed July 1, 1997, as follows:

     On the cover sheet, section 3, line 3 -- "Frederic N. Smalkin,
District Judge" is corrected to read "Alexander Harvey II, Senior

District Judge."

                                      For the Court - By Direction



                                         /s/ Patricia S. Connor

                                                     Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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,
                                                    No. 88-3811
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.
Alexander Harvey II, Senior District Judge.
(CA-82-3431-HAR, CA-82-3154-HAR, CA-80-2612-S,
CA-83-857-HAR, CA-80-2613-K)

Argued: April 9, 1997

Decided: July 1, 1997

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

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

_________________________________________________________________

COUNSEL

ARGUED: Harry Goldman, Jr., GOLDMAN & SKEEN, P.A., Balti-
more, Maryland, for Appellants. Susan Macdonald Glenn, NELSON,
MULLINS, RILEY & SCARBOROUGH, Columbia, South Carolina,
for Appellee. ON BRIEF: David M. Layton, Steven G. Warm,
GOLDMAN & SKEEN, P.A., Baltimore, Maryland, for Appellants.
T. Harold Pinkley, PAINE, SWINEY & TARWATER, Knoxville,
Tennessee; Stephen A. Hudgins, HUBBARD, SMITH & HUDGINS,
Newport News, Virginia, for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

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 ill-
nesses from their exposure to asbestos while working at Key High-
way. 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 Plain-
tiffs' 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 evi-
dence Letters of Administration as proof of the existence of a per-
sonal 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 proceed-
ings.

                     2
Since we find that the district court erred in granting a directed ver-
dict as to all plaintiffs, we reverse.

I. FACTS

The case arises from asbestos-related personal injuries from expo-
sure 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 Ship-
yard 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 dis-
trict 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 negli-
gence, 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 Raybestos1 cloth was "the main source" of cloth stored
and dispensed in the storeroom.
_________________________________________________________________

1 Raymark Industries manufactured Raybestos which was an asbestos
cloth containing 65-95% asbestos.

                    3
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 asbes-
tos 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 sup-
ply 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

                      4
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 that he used asbestos blan-
kets "every day practically. That it was a way of life in the shipyard."

F. William Shetterly

Shetterly was deceased at the time of trial and testified through his
daughter. She testified that his clothes were often covered with a
white powder and patched with asbestos cloth. In addition, Dr. Grace
Ziem, who had taken information from Shetterly regarding his occu-
pational history, testified that Shetterly used an asbestos blanket on
a frequent basis.

Swords also testified that he knew Shetterly and worked with him
many times, and Griffith testified that he knew Shetterly and knew he
worked as a burner around insulation.

G. Non-claimant Testimony

Several non-claimant witnesses testified about the extent to which
Raybestos cloth was used at the shipyard. Most notably, A. C. & S.,
Inc., formerly known as Armstrong Contracting and Supply, was a
primary contractor for insulation work on ships at Key Highway.
Raybestos supplied the majority of the asbestos cloth to A. C. & S.
and by 1967 Raymark was A. C. & S.'s exclusive supplier of asbestos
cloth.

Moreover, the evidence places each Plaintiff either in close prox-
imity to asbestos from the storeroom or in close proximity to A. C.
& S. contractors who "exclusively" used Raymark's products.

II. DISCUSSION

A. Causation

The district court determined that as a matter of law there was
insufficient evidence to show the necessary causation between claim-
ants' exposure to Raymark asbestos cloth and their asbestos-related

                    5
injuries. However, Maryland law has been clarified since the present
case was originally litigated in 1988, and the clarification requires us
to reverse the district court.

In order to sustain an action against Raymark for asbestos related
injuries, Plaintiffs must prove that Raymark products "were a substan-
tial causative factor" in their injuries. Owens-Corning Fiberglas
Corp. v. Garret, 682 A.2d 1143, 1156 (Md. 1996). The Court of
Appeals has determined that substantial causation may be determined
by examining the frequency, regularity and proximity of plaintiffs'
exposure to the particular asbestos product. Id.

        Whether the exposure of any given bystander to any particu-
        lar supplier's product will be legally sufficient to permit a
        finding of substantial-factor causation is fact specific to each
        case. The finding involves the interrelationship between the
        use of a defendant's product at the workplace and the activi-
        ties of the plaintiff at the workplace. This requires an under-
        standing of the physical characteristics of the workplace and
        of the relationship between the activities of the direct users
        of the product and bystander plaintiff. Within that context,
        the factors to be evaluated include the nature of the product,
        the frequency of its use, the proximity, in 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.
        In addition, trial courts must consider the evidence pres-
        ented as to medical causation of the plaintiff's particular dis-
        ease.

Owens-Corning, 682 A.2d at 1156 (citing Eagle-Picher v. Balbos,
604 A.2d 445 (Md. 1992)).

Owens-Corning is particularly relevant to the present case because
plaintiffs in Owens-Corning were also trying to show indirect expo-
sure to asbestos. In Owens-Corning, the court applied the frequency,
regularity, and proximity test and refused to dismiss the plaintiff's
claim for lack of causation finding that the jury could infer causation.

The plaintiff in Owens-Corning could only show exposure by
inference. He proved that a specific brand of asbestos product was

                    6
present at the plant. The specific dates that the product was used were
unclear but the court determined that "a jury could infer that [com-
pany product] was used during the relevant time period." Id. at 1157,
n. 9. One witness placed the plaintiff in proximity to asbestos work
and that same witness identified that a specific asbestos brand product
was used at the work site. Id. The court held that the jury could rea-
sonably infer that the specific asbestos product was frequently and
regularly used at the plant during the relevant time period. Id. It also
held that testimony that the plaintiff worked in close proximity to
asbestos work was sufficient to support the proximity requirement of
the test. Id.

Applying Owens-Corning to the present case, the district court
clearly erred in ordering a directed verdict. A directed verdict is only
proper when "there can be but one reasonable conclusion as to the
verdict." Alevromagiros v. Hechinger Co., 933 F.2d 417, 420 (4th Cir.
1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)). In reviewing the district court's decision, we view the evi-
dence in the light most favorable to the non-moving party.
Alevromagiros, 993 F.2d at 420. Taking the evidence in the light most
favorable to the Plaintiffs, the jury could have found that Raybestos
was a substantial factor in their injuries.

George Skleres worked in the storeroom and cut asbestos cloth. In
addition, there was evidence in the record that Raybestos cloth was
in the storeroom and that huge quantities of the cloth were dispensed
regularly. Just as in Owens Corning, Skleres can show that Raybestos
was used in the plant during his period of employment, that he was
in proximity to asbestos,2 and that a specific brand of asbestos was
used in the work site. In fact, in Skleres's case, there is evidence that
Raybestos was the main source of asbestos cloth in the storeroom
where he worked. Viewing the evidence in the light most favorable
to Skleres, there is clearly enough evidence to present Skleres's case
to the jury.

George Smith, Edward Swords, and Charles Griffith's claims must
also be upheld on similar grounds. All three Plaintiffs indicated that
they used or worked near asbestos cloth. In addition, all three testified
_________________________________________________________________

2 In fact, Skleres was directly involved in cutting the asbestos.

                    7
that they obtained asbestos cloth from the storeroom on at least sev-
eral occasions. Another witness testified, and the jury could infer, that
Raybestos was the main cloth used in the storeroom. Furthermore,
George Smith, Swords, and Griffith all worked near A. C. & S. con-
tractors who "exclusively" used Raymark products. Therefore, just as
in Owens Corning, the jury could infer that Smith, Swords, and Grif-
fith obtained Raybestos cloth from the storeroom and worked near
Raybestos cloth at their job sites.

In fact, Skleres, Smith, Swords and Griffith may have a stronger
case than that in Owens-Corning since they can show a high likeli-
hood that they either used or worked near a specific asbestos product.
They all either worked in the storeroom containing Raybestos or
acquired asbestos cloth from the storeroom which "mainly" contained
Raybestos. In Owens-Corning, the only evidence of a specific product
being present in the work site was the testimony of a witness who
stated that he saw a specific product while he worked at the company.
He also testified that the plaintiff in Owens-Corning worked with
him. There was no direct connection between the plaintiff and the
product, but the court determined that the relationship could be
inferred by the jury. Such an inference is even more likely in the
instant case.

James Smith and William Shetterly's cases are much more diffi-
cult. Neither Smith nor Shetterly could testify at trial. However, there
was evidence admitted that Smith's use of asbestos was similar to
Gray's. Gray testified that he used asbestos cloth every day. In addi-
tion, Albert Wilder, a welder, testified that he worked around Smith
and that he often worked around insulators using asbestos. If the jury
inferred that Smith used asbestos cloth every day, and that Raybestos
cloth was the primary cloth in the storeroom, and that Smith worked
around A. C. & S. contractors who "exclusively" used Raybestos, the
jury could infer that Smith was frequently exposed to Raybestos.

The same logic applies to Shetterly. Although Shetterly was
deceased at the time of trial, his physician testified that in taking an
occupation history of Shetterly, Shetterly told her that he used asbes-
tos blankets on a frequent basis. In addition, Wilder testified that he
worked with Shetterly quite often, and that they worked in close prox-
imity to pipe fitters and insulators who used asbestos. Once again,

                    8
since Raybestos was the primary cloth in the storeroom, and since A.
C. & S., a major contractor, exclusively used Raybestos, the jury
might infer that Shetterly was exposed to Raybestos on a frequent
basis.

In addition, there is evidence that all the Plaintiffs except Skleres
worked on ships near A. C. & S. contractors. Since A. C. & S. used
large quantities of Raymark products in the 60's and exclusively used
Raymark's products by 1967 at the latest, the jury might properly
infer that the Plaintiffs were frequently exposed to Raybestos.

Thus, in applying the frequency, regularity, and proximity test as
set out in Owens-Corning, and viewing the evidence in the light most
favorable to the Plaintiffs, we find that the jury could properly infer
that Raybestos was a substantial cause of Plaintiffs' injuries. There-
fore the district court's grant of a directed verdict was improper and
we reverse.

B. Bifurcated Trial

Plaintiffs claim that the district court erred in ordering a bifurcated
trial.3 We review decisions whether to bifurcate a trial for abuse of
discretion. In re Hutchinson, 5 F.3d 750, 758 (4th Cir. 1993).

The district court decided that before moving to the question of
negligence, strict liability or damages, the court would first determine
whether the Plaintiffs even suffered from asbestosis, whether they
inhaled asbestos fibers from Raymark's products, whether the inhala-
tion was a substantial factor in their illness, and whether each Plaintiff
was entitled to any specific damages. In a complex tort case such as
the one at bar, the district court has discretion to bifurcate the trial to
ensure that the case is tried in an orderly fashion without confusion
to the jury, and the district court did not abuse that discretion in the
instant case.
_________________________________________________________________

3 The Plaintiffs assert that the court trifurcated the trial. The result
would be the same under either interpretation.

                      9
C. Lost Earnings

Plaintiffs next argue that the district court erred in refusing to grant
Edward Swords and George Smith's requested instructions regarding
lost earnings. The district court refused to grant such an instruction
because it determined that since the Plaintiffs received a disability
pension from Key Highway they could not also receive lost wages.
In addition, the court determined that since the company doctor
authorized disability for a heart condition not asbestosis, they could
not now claim asbestosis.

Since the district court granted a directed verdict in favor of Ray-
mark, the court never propounded a jury instruction. The issue is
therefore not properly before the court.

D. Statute of Limitations

The district court directed a verdict against Mildred Shetterly, as
personal representative for the estate of her husband William Shet-
terly, based on the expiration of Maryland's three-year statute of limi-
tations. In the present case there was a factual dispute regarding when
Shetterly became aware of the fact that he suffered from asbestosis.
Shetterly argues that he became aware of his asbestosis in 1980 after
he was examined by Dr. James P. Keogh. However, the district court
determined that Shetterly was aware of his asbestosis in 1977 when
he retired from Key Highway.

Raymark argues that under Moy v. Bell, 416 A.2d 289, cert. denied,
288 Md. 740 (1980) (the application of the statute of limitations must
be made by the judge in his judicial role), the question was within the
discretion of the district court. However, the Court of Appeals
expressly rejected Moy in O'Hara v. Kovens, 503 A.2d 1313, 1323
(Md. 1986). In O'Hara, the Maryland Court of Appeals held that
"questions of fact on which a limitations defense will turn are to be
decided by the jury or, when sitting as a jury, by the court." O'Hara,
503 A.2d at 1323 (emphasis added); see also James v. Weisheit, 367
A.2d 482, 486 (Md. 1977) ("[W]hether a cause of action is barred by
the statute of limitations is ordinarily a mixed question of law and fact
that may be taken from the jury only when the court determines as a
matter of law that a suit was not instituted within the proper time.").

                    10
Since in the present case there is a factual conflict as to whether
Shetterly knew of his asbestosis in 1977 when he retired or in 1980
when he was diagnosed by his doctor, a directed verdict on statute of
limitations grounds was improper. Under Maryland law, the jury, not
the district court, should have determined whether Shetterly's claim
violated the statute of limitations.

E. Loss of Consortium

The district court rejected Swords, George Smith, Skleres and Grif-
fith's claim for lack of consortium finding that there was insufficient
evidence to support the claim and finding that the claim was barred
since it was not included in the pretrial order. Maryland law has been
clarified regarding claims for loss of consortium since the district
court rendered its decision, and in reviewing the district court's deter-
mination, we benefit from those clarifications. Upon review of Mary-
land law, we find the district court erred in granting a directed verdict
on the loss of consortium claims.

The district court determined that the Plaintiffs failed to show any
loss of consortium. In its discussion on this subject, the district court
indicated that loss of sexual activity was a major part of loss of con-
sortium and that loss of sexual activity was not proven in the present
case.

        THE COURT: We are talking about loss of consortium.
        That is a joint claim. Are you familiar with the Maryland
        law, what mounts up to a loss of consortium? Number one,
        there was certainly no evidence of any sexual activity, and
        that is a large part of a claim of loss of consortium. . . .

        MR. GOLDMAN: [C]onsortium does not only include
        companionship and comfort. . .

        ...

        [L]oss of services, help which one spouse renders to
        another, is clearly lacking by reason of physical debilitation.
        The recreation, going even to walk to the stream to fish in

                     11
        the case of Griffiths. That is all companionship. They did it
        together. So too with all activities that normal husbands and
        wives enjoy if there is some physical vigor, which is lacking
        here.

        THE COURT: How much physical vigor do you have
        when you're 68 or 69?

In Maryland, a loss of consortium is a remedy for an injury to the
marital entity. Deems v. Western Maryland Ry. Co., 231 A.2d 514
(1967). It is not just a remedy for loss or impairment of sexual rela-
tions. Klein v. Sears, Roebuck and Co., 608 A.2d 1276, 1283 (Md. Ct.
Spec. App. 1992). It includes the "loss of society, affection, assis-
tance, and conjugal fellowship." Id.

Although there was no evidence of lack of sexual intercourse
caused by asbestosis there was certainly evidence of serious physical
injury. In addition, all Plaintiffs claimed that their wives depended
upon them for financial assistance and that asbestosis decreased their
ability to provide for their wives. Moreover, there are sufficient facts
in the record to indicate that physical injury could have impacted "so-
ciety, affection and assistance" if not conjugal fellowship. Moreover,
Charles Griffith clearly made out a case for loss of society, affection
and assistance when he claimed that he could no longer walk or fish
with his wife. Companionship is as important to the marital relation-
ship as sexual intercourse and Plaintiffs' marital relationships may
have suffered due to their asbestosis.

The district court's statement "How much physical vigor do you
have when you are 68 or 69?" misses the point. If the Plaintiffs have
less than they would have had but for the asbestosis, they may have
a claim for loss of consortium. Since this issue is before us on a
directed verdict, taking the facts in the light most favorable to the
Plaintiffs, there is sufficient evidence to support a claim of loss of
consortium.

The district court also indicated that the Plaintiffs' claim for loss
of consortium should be dismissed because the Plaintiffs did not make
out such a claim in their pretrial order. Federal Rule of Civil Proce-
dure 16(e) and Local Rule 106 provide for the entry of a pretrial

                    12
order. These orders should be construed liberally "to cover any of the
legal or factual theories that might be embraced by their language."
Trujillo v. Uniroyal Corp, 608 F.2d 815, 818 (10th Cir. 1979) (quot-
ing Rodrigues v. Ripley Industries, Inc., 507 F.2d 782, 787 (1st Cir.
1974)); see also Lamborn v. Dittmer, 873 F.2d 522, 527 (2nd Cir.
1989); Miller v. Safeco Title Ins. Co., 758 F.2d 364, 368 (9th Cir.
1985); Howard v. Kerr Glass Mfg. Co., 699 F.2d 330, 333 (6th Cir.
1983); United States Gypsum Co. v. Schiavo Bros., Inc., 668 F.2d
172, 181 n.12 (3rd Cir. 1981), cert. denied, 456 U.S. 961 (1982);
Geremia v. First Nat'l Bank of Boston, 653 F.2d 1, 5 (1st Cir. 1981).

We have reviewed the pretrial order dated September 27, 1987 and
find that it sufficiently provides for a claim of loss of consortium. In
regard to George and Rosalie Smith, the order states

        The plaintiffs, George Dixon Smith and Mrs. Rosalie Smith
        have been deprived of each others society, comfort and con-
        sortium and have sustained injury to the marital relationship
        as a proximate result of the husbands [sic] serious, perma-
        nent and progressive asbestos-related disease and pain, suf-
        fering and mental anguish and emotional injury and distress
        caused by their knowledge that his life may be shortened
        and that he may die as a result.

Similar language is present in the pretrial order for Charles and Jean
Griffith, Edward and Irene Swords and George and Dimitra Skleres.
This language in and of itself would be sufficient to support Plain-
tiffs' contention that they did not waive their claim to loss of consor-
tium by failing to include it in the pretrial order.

However, even if the above language was not present in the pretrial
order, Swords and Griffith specifically stated that they were not aban-
doning any issues which were included in their complaint. Swords
and Griffith's complaints clearly make out a claim of loss of consor-
tium, and they specifically did not abandon those claims in the pretrial
order.4
_________________________________________________________________

4 The Joint Appendix only included Swords and Griffith's complaint.
Under Federal Rules of Appellate Procedure 30, the Joint Appendix must
contain the relevant portions of the pleadings. All of the Plaintiffs' com-
plaints are clearly relevant to these proceedings and should have been
included in the Joint Appendix.

                     13
F. Lack of Proof Regarding Personal Representatives

Plaintiffs' counsel failed to introduce evidence that the parties act-
ing as representatives for Dickson and James Smith had been properly
appointed as their personal representatives. The court, finding that
these representatives could not be parties to the action, directed ver-
dicts against Dickson and Smith.

Rule 17 of the Federal Rules of Civil Procedure governs a party's
failure to name the proper person. Rule 17 states:

        Every action shall be prosecuted in the name of the real
        party in interest . . . . No action shall be dismissed on the
        ground that it is not prosecuted in the name of the real party
        in interest until a reasonable time has been allowed after
        objection for ratification of commencement of the action by,
        or joinder or substitution of, the real party in interest.

The Defendants never objected to the lack of proof regarding the
status of the personal representatives. The court raised the issue sua
sponte. The Plaintiffs argue that once the issue was raised by the dis-
trict court, they were entitled under Rule 17 to remedy the defect.

No party objected during the trial to the failure to name a proper
party. The court decided sua sponte, after the close of Plaintiffs' case,
that there was no proof regarding the status of the personal represen-
tative. According to the district court, Plaintiffs simply failed to prove
that they were a proper party, and the district court refused to allow
Plaintiffs to cure the defect.

Rule 17 specifically provides that plaintiffs should have a right to
cure a defect regarding the naming of a proper party. In Lavean v.
Cowels, 835 F.Supp. 375 (W.D. Mich. 1993), a district court
addressed how to resolve the lack of proof regarding a personal repre-
sentative's capacity to sue. In Lavean, the amended complaint did not
allege how plaintiff came to be a personal representative. During the
trial, defendant objected to the lack of proof that plaintiff was in fact
the personal representative of the estate. At the time of the objection,
plaintiff could not prove that she was the personal representative.

                     14
The court looked to Rule 17 and determined that "[b]ecause plain-
tiff was not qualified as the personal representative at the time of trial,
Rule 17(a) would require dismissal of the case, but for a saving provi-
sion in the rule." Id. at 388 (emphasis added). The court held that the
purpose of this provision was "to allow the court to avoid forfeiture
and injustice when a technical mistake has been made in naming the
real party in interest." Id. The court then afforded the plaintiff a rea-
sonable time (10 days) to remedy the problem.

We find the logic of the district court in Lavean persuasive. Upon
finding that the Plaintiffs had not properly named the real party in
interest, the district court, under Rule 17, should have provided the
Plaintiffs time to cure the problem. Plaintiffs clearly would have had
that right to cure had an objection been raised by the Defendant.
Plaintiffs should not lose their right to cure simply because the motion
was made by the judge, and not the Defendant, at the close of Plain-
tiffs' case.

III. CONCLUSION

The case presents complex factual and legal issues which are com-
pounded by the considerable time which has passed since the case
was originally tried in 1987 and 1988. We have the benefit of several
cases from Maryland's highest court which clarify the law with regard
to the case at bar. With the benefit of those cases, we reverse the dis-
trict court as to all issues except its decision to bifurcate the proceed-
ing which was clearly within the district court's discretion.

REVERSED IN PART AND AFFIRMED IN PART

                     15
