In Georgia Pacific v. Farrar, No. 102, September Term (MD July 8, 2013), the Maryland Court of Appeals reconsidered a manufacturer’s duty to warn members of a worker’s household about the risks of asbestos-containing products. The court narrowed existing Maryland precedent concerning the duty to warn in household exposure cases brought against manufacturers and suppliers, signaling a broader trend in favor of product defendants in take-home exposure claims.
Plaintiff Jocelyn Farrar was diagnosed with mesothelioma in 2008. Ms. Farrar’s grandfather, a mechanic in the construction industry, worked directly with or around asbestos-containing products (she alleged that she was exposed to asbestos carried into her grandparents’ home, where she lived from the early 1950s to 1974). Ms. Farrar claimed that her grandfather specifically carried asbestos dust from Georgia Pacific joint compound on his clothing for a six-month period in 1968 and 1969 when he was working near drywall installation. During this period, Ms. Farrar testified she laundered her grandfather’s work clothes. She claimed that this exposure caused her to develop mesothelioma.
A jury in the Circuit Court of Maryland for Baltimore City returned a verdict exceeding $5 million. Georgia Pacific appealed to the Maryland Court of Special Appeals, an intermediate appellate court, arguing that the company owed no duty to warn Ms. Farrar of the danger from its product. After the Court of Special Appeals affirmed the judgment, the Maryland Court of Appeals agreed to hear the case.
On appeal, plaintiff relied on Anchor Packing v. Grimshaw, 115 Md. App. 134 (1997), a duty to warn decision that has stood for more than 15 years in Maryland. Based on Grimshaw, plaintiff argued that Georgia Pacific owed her a duty to warn because it was foreseeable that those working in the vicinity of the drywall product would carry asbestos dust home on their clothing where other household members would be exposed to the dust. Plaintiff also argued that product liability cases extend a duty to warn to anyone within the general field of danger who may come into contact with the product.
Decision and Analysis
The Court of Appeals disagreed and reversed the lower courts, holding that Georgia Pacific owed no duty to plaintiff in 1968 and 1969. Even if Georgia Pacific had knowledge sufficient to constitute foreseeability of danger to household members, the court reasoned, there was no feasible or practicable method to get the message out to such household members.
The court emphasized that “foreseeability within a zone of danger” is just one factor to consider in deciding whether a duty to warn exists. In addition to foreseeability, the court explained that the question may also turn on other factors such as the feasibility and burden of providing a warning. Specifically, the court found that when a manufacturer or supplier of an asbestos-containing product is sued for failure to warn a household member, an analysis of whether a duty to warn exists should focus on “when the exposures occurred – in effect, what the defendant knew or reasonably should have known about the dangers of household exposure at the time the warning should have been given ….” The analysis also considers “the relative weight to be given to foreseeability, as opposed to other factors, such as the relationship between the parties and the feasibility or burden of providing warnings ….”
In Grimshaw and subsequent cases, Maryland courts imposed a duty to warn in household exposure situations based almost solely on the fact that the household exposure was foreseeable. However, the Farrar court pointed out that foreseeability should not be the sole factor, as had been implied previously. Instead, foreseeability should be given only an appropriate weight of importance depending on the facts of a particular case.
Based on the “skimpy state of knowledge” regarding the danger to household members prior to the adoption of OSHA regulations in 1972, the court questioned whether the dangers of household exposure were foreseeable to Georgia Pacific. The court then considered the feasibility and practicality of providing a warning. The court concluded that there was no way for Georgia Pacific to have conveyed a warning about the danger posed by household exposure during the time period at issue in the case – the late 1960s – when warnings could not as easily be transmitted to individuals who did not work with or in proximity to a particular product. Consequently, even if the risk of injury was foreseeable, the record still would not support imposing a duty.
Potential Impact of the Decision
This decision has the potential to significantly limit the universe of plaintiffs who may recover for asbestos-related injuries in Maryland. Foreseeability alone may not be sufficient to trigger a duty in household exposure cases, especially in cases involving manufacturers and suppliers of asbestos-containing products. Now, courts will need to consider the feasibility and burden of providing warnings to household members. Not only is Farrar a significant decision for product defendants in Maryland, but it may also cause other jurisdictions to reconsider the duty to warn in take-home exposure cases.