On July 8, 2013, the Maryland Court of Appeals (the state’s highest court) reversed a $5 million judgment, reduced from $20 million due to settlement credits, against Georgia-Pacific LLC in a “take-home” or “household” asbestos products liability case, ruling that the manufacturer owed no duty to warn a family member of a worker exposed to asbestos dust on the worker’s clothing.
In Georgia Pacific LLC v. Farrar, the court rejected the lower court’s use of a broad foreseeability standard to identify the scope of a product manufacturer’s duty. Instead, the court adopted a standard that looks at foreseeability based on scientific knowledge about the potential harm to non-users at the time the product was used. The court also was skeptical whether it was feasible to warn non-users of product dangers. This analysis of both the foreseeability of injury and the feasibility and efficacy of warnings has significant implications for the defense of failure-to-warn products liability suits both within and outside the asbestos arena.
Farrar is the latest in a line of decisions in asbestos cases in which the plaintiffs were never directly exposed to asbestos products. Instead, in these “take home” or “household” cases, the typical claim is that the plaintiff was exposed to the asbestos-contaminated work clothing of spouses or family members who worked with or around asbestos products.
Until Farrar, the results of such suits have generally turned on who the defendant was. Employers and the owners of premises have often been held not to owe duties to household members. E.g., In re N.Y. City Asbestos Litig. (Holdampf), 840 N.E.2d 115, 122 (N.Y. 2005); but see, e.g., Olivo v. Owens-Illinois, Inc., 895 A.2d 1143, 1149-50 (N.J. 2006). But product manufacturers have almost universally been held liable on the theory that it was foreseeable that asbestos dust would attach to users’ clothing and harm other household members E.g., Lunsford v. Saberhagen Holdings, 106 P.3d 808, 812 (Wash. Ct. App. 2005).
Maryland had followed that approach, rejecting employer and premises liability in “take home” cases, Adams v. Owens-Illinois, Inc., 705 A.2d 58, 66 (Md. Ct. Spec. App. 1996), but, in two decisions by the intermediate Maryland Court of Special Appeals, permitting strict liability failure-to-warn claims against manufacturers in other “take home” cases. ACandS, Inc. v. Abate, 710 A.2d 944, 988-89 (Md. Ct. Spec. App. 1996); Anchor Packing Co. v. Grimshaw, 692 A.2d 5, 33-36 (Md. Ct. Spec. App. 1996), vacated on other grounds sub nom. Porter Hayden Co. v. Bullinger, 713 A.2d 962 (1998).
Farrar reverses that trend. The case involved products liability claims by a granddaughter who allegedly shook out and laundered her grandfather’s work clothing. From 1968 until 1969, the grandfather worked near workers installing drywall using a Georgia Pacific product that contained asbestos, and the claim was that his work clothing was covered in asbestos dust as a result.
Ms. Farrar was diagnosed with mesothelioma in 2008 and sued Georgia Pacific. Reversing a jury verdict in Ms. Farrar’s favor, the Maryland Court of Appeals made two rulings that may significantly advance the defense of products liability suits.
Foreseeability, Strictly Construed
Farrar’s first significant ruling involves the way that courts determine who a product manufacturer has a duty to warn about dangers. Maryland, like most states, applies a foreseeability test, imposing a duty to warn those within a product’s foreseeable zone of danger.
In cases against product manufacturers, whether take-home plaintiffs were within the foreseeable zone of danger has largely been treated as a jury issue. In Grimshaw, for example, the Maryland Court of Special Appeals had determined that “whether it was foreseeable . . . that asbestos workers would bring home asbestos-covered clothes and expose their households to harm is an issue to be determined by the jury.” 692 A.2d at 34. Similarly, in Lunsford, the Washington Court of Appeals held the jury should decide “whether it was reasonable for the manufacturer to foresee that Lunsford would be exposed to its product through his father.” 106 P.3d at 812.
These courts have typically held that a jury can infer foreseeability of harm to take-home plaintiffs simply from evidence showing the foreseeability of harm to product users. See Grimshaw, 692 A.2d at 34-35.
Farrar does away with that approach. Conceding that the danger to take-home plaintiffs was “in hindsight perhaps fairly inferable” from the known danger of asbestos dust to workers, the court held that such an inference does not support the imposition of a duty.
Instead, the court turned to the scientific literature regarding the danger of household asbestos exposure. While the danger to workers was well-established, the danger of household exposure was not generally recognized in 1968 and 1969, the years the plaintiff in Farrar washed her grandfather’s clothes. Thus, the court concluded, the danger to take-home plaintiffs was not foreseeable at that time.
This analysis of the state of scientific knowledge is largely a new development in take-home actions against asbestos manufacturers. Appellate courts have used the state of the scientific evidence as a basis for rejecting punitive damages claims by take-home plaintiffs, ExxonMobil Corp. v. Altimore, 256 S.W.3d 415 (Tex. App.—Houston [14th Dist.], 2008, no pet.), and have cited the lack of public information in declining to impose a duty on employers and premises owners, e.g., Rodarmel v. Pneumo Abex, L.L.C., 957 N.E.2d 107, 126 (Ill. App. Ct. 2011). And one federal case, Martin v. Cincinnati Gas & Electric Co., reversed a verdict against both a product manufacturer and an employer based on the lack of published studies or industry knowledge of the danger of take-home exposure. 561 F.3d 439, 446 (6th Cir. 2009).
But Martin focused primarily on negligence rather than strict liability and, because it involved claims against both a manufacturer and an employer, failed to clearly delineate the analysis applicable to claims against manufacturers.
Farrar, in contrast, squarely addresses the standard for strict liability take-home cases against manufacturers. The decision places a much higher burden on plaintiffs to prove that potential harm to take-home plaintiffs was scientifically recognized at the time of exposure.
Farrar’s second significant holding is to require a critical examination of the effectiveness of a hypothetical warning to a non-user. Asbestos defendants have long argued that they could not possibly have warned non-users about their products, but so far that argument has been more of a jury argument than a legal issue. E.g., Grimshaw, 692 A.2d at 35. The Farrar court, however, accepted the argument as a matter of law.
The court held that Maryland would not impose a duty to warn where warning would be impossible or ineffective. And the court found that, at least in 1968-69, manufacturers could not effectively warn take-home plaintiffs.
Manufacturers had no contact with the take-home plaintiffs, and the plaintiff had offered no evidence that any warnings to workers exposed to the product could have prevented the plaintiff’s exposure. Thus, the court held that the speculative possibility that workers’ employers might have responded to warnings by “voluntarily provid[ing] protective clothing, changing rooms, and safe laundering” was inadequate without evidence that any employer had in fact provided such facilities at the time.
This holding sharply increases the burden on plaintiffs in take-home cases. In those cases, plaintiffs now must prove either that the manufacturer could feasibly have warned the non-user directly or that a warning to the product user would, as a practical matter, have prevented the harm.
An assumption that the product user would have heeded the warning will no longer suffice — the plaintiff will need to prove it. This focus on the feasibility and efficacy of warnings is not limited to take-home cases and could be applied to all failure-to-warn claims in Maryland.
In these two holdings, the Maryland Court of Appeals reminded lower courts that they must conduct a searching analysis on foreseeability of harm and the existence of a duty, even in products liability cases. And the court was clear that courts must look closely at whether warnings would have been possible and effective based on the evidence presented to them. If this analysis is applied to other products liability cases, it will have significant implications for the defense of such suits in Maryland.