Estate of Schatz v. Univ. of Md., College Park

Beachley, J. ²¹³ In 2015, Concetta Schatz ("Mrs. Schatz") passed away from malignant mesothelioma. After her death, Mrs. Schatz's estate and her four surviving daughters ("appellants") commenced a products liability action against John Crane, Inc. ("JCI" or ⁷⁶ "appellee"). Appellants alleged that Mrs. Schatz's husband, William Schatz ("Mr. Schatz"), would handle JCI products containing asbestos while at work, and then bring his asbestos-covered clothing home for Mrs. Schatz to clean, thus exposing her to asbestos fibers. The case proceeded to trial.

At the close of appellants' case-in-chief, JCI moved for judgment, arguing that appellants had failed to prove that JCI owed a legal duty to warn Mrs. Schatz pursuant to Georgia-Pacific, LLC v. Farrar , 432 Md. 523 , 69 A.3d 1028 (2013). Following arguments, the trial court granted JCI's motion. Appellants timely appealed and present two questions for our review, which we have condensed as follows 1 : ²¹⁴ 1. Whether the circuit court erred in granting JCI's motion for judgment.

We hold that the court did not err, and affirm. FACTS AND PROCEEDINGS Mr. Schatz married Mrs. Schatz on November 13, 1955. Near the time of their marriage, Mr. Schatz began working for Baltimore Gas & Electric ("BG & E"), where he continued to work until he retired in the mid-to-late 1980s. For approximately the first two years of his employment with BG & E, Mr. Schatz worked with turbines.

He was then transferred to Wagner Station and shortly thereafter was promoted to mechanic. Mr. Schatz remained a mechanic at Wagner Station for the rest of his career with BG & E. While working at Wagner Station as a mechanic, Mr. Schatz was responsible for repairing and maintaining a variety of equipment, including air compressors, coal machinery, fly ash hoppers, and of particular relevance here, boilers. The boilers at Wagner Station each contained approximately 200 doors. The packing or sealing surrounding these doors would routinely deteriorate due to heat and dirt from the boilers, and Mr. Schatz and other mechanics were tasked with replacing the damaged packing with JCI rope. 2 The rope used was white and flexible, and when mechanics would cut it to fit into the doors, it created dust and dirt.

Unfortunately, from 1930 until 1985, JCI's rope contained sixty percent chrysotile asbestos. ²¹⁵ BG & E did not provide any laundry services to its employees when Mr. Schatz worked at Wagner Station as a mechanic, so he would typically take his dirty work clothes home for his wife to wash. Approximately every other day, Mrs. Schatz would shake out and wash the dirty work clothes, breathing in the dust as she did so. After Mrs. Schatz passed away due to mesothelioma, appellants filed this products liability claim against JCI. Appellants' trial against JCI began on July 25, 2017.

JCI moved for judgment on August 4, at the close of appellants' case-in-chief. On August 8, the circuit court held that JCI did not owe a duty to warn Mrs. Schatz, and granted JCI's motion. Appellants timely appealed. We shall provide additional facts as necessary for our analysis. ⁷⁷ STANDARD OF REVIEW "We review the trial court's grant of [JCI's] motion for judgment de novo , considering the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party." Thomas v. Panco Mgmt. of Md., LLC , 423 Md. 387 , 393-94, 31 A.3d 583 (2011) (citing C & M Builders, LLC v. Strub , 420 Md. 268 , 290, 22 A.3d 867 (2011) ).

DISCUSSION Appellants argue that the circuit court erred in concluding that JCI did not owe a duty to warn Mrs. Schatz. Specifically, they claim that: 1) the court erred "in finding that household members constitute an indeterminate class, contrary to the holding in Farrar "; and 2) "[U]nder Farrar , a duty to warn extended to household members beginning in 1972 when OSHA [ 3 ] promulgated safety regulations dealing specifically with the problem of tracking asbestos dust on clothing into the home." We first explain why JCI did not have a duty to warn Mrs. Schatz of the danger of exposure to its asbestos ropes. Though not material to our holding, we then briefly address ²¹⁶ the court's finding that Mrs. Schatz did not belong to a "definite determinative class" under Farrar . I. JCI DID NOT OWE A DUTY TO MRS.

SCHATZ The parties to this appeal dispute whether JCI owed a duty to warn Mrs. Schatz of the dangers of its asbestos product. In Farrar , a case directly on point, the Court of Appeals discussed whether a manufacturer and supplier of an asbestos product had a duty to warn the family member of a bystander who was exposed to its product. 432 Md. at 526 , 69 A.3d 1028 . There, John Hentgen ("Mr. Hentgen"), a mechanic in the construction industry, worked on a project at the Forrestal Building in Washington D.C. for a six or seven-month period from 1968 to 1969. Id. at 525, 69 A.3d 1028 .

While there, Mr. Hentgen worked in the immediate vicinity of workers who would install drywall and then apply a "Georgia Pacific Ready-Mix joint compound to smooth the joints between the drywall slabs." Id. at 525-26, 69 A.3d 1028 . During the time that Mr. Hentgen worked at the Forrestal Building, Georgia Pacific's "Ready-Mix contained asbestos, and the sanding created a great deal of dust that got on Mr. Hentgen's clothes, hair, and skin." Id. at 526, 69 A.3d 1028 . At the end of each work week, Mr. Hentgen would bring his work clothes home to be washed. Id. at 525, 69 A.3d 1028 .

Jocelyn Farrar ("Ms. Farrar"), the plaintiff in that case, was Mr. Hentgen's granddaughter. Id. "During her teenage years in the 1960s, Ms. Farrar and her sister shared the task of shaking out Mr. Hentgen's work clothes, which were covered with asbestos-laden dust, laundering them, and sweeping the dust from the floor." Id. Unfortunately, Ms. Farrar was diagnosed with mesothelioma in 2008.

Id. Ms. Farrar filed claims against more than thirty defendants, including Georgia Pacific, alleging, inter alia , strict liability and negligence claims. Id. at 526, 69 A.3d 1028 . After the jury ruled in Ms. Farrar's favor, Georgia Pacific appealed, arguing that the trial court had erred in denying its motion for judgment because it had no duty to warn Ms. Farrar.

Id. After this Court affirmed the circuit court's judgment, the ²¹⁷ Court of Appeals reversed, agreeing with Georgia Pacific that it did not have a duty to warn persons such as Ms. Farrar. Id. ⁷⁸ In discussing whether Georgia Pacific had a duty to warn, the Court of Appeals explained that "[a]t its core, the determination of whether a duty exists represents a policy question of whether the specific plaintiff is entitled to protection from the defendant." Id. at 529, 69 A.3d 1028 (quoting Gourdine v. Crews , 405 Md. 722 , 745, 955 A.2d 769 (2008) ). The Court recognized that "[t]here is no set formula for the determination of whether a duty exists," but stated that it "applied a 'foreseeability of harm' test, 'which is based upon the recognition that duty must be limited to avoid liability for unreasonably remote circumstances[.]' " Id. at 529, 69 A.3d 1028 (quoting Doe v. Pharmacia & Upjohn Co. , 388 Md. 407 , 415, 879 A.2d 1088 (2005) ).

The Court cautioned, however, that "[w]hile foreseeability is often considered among the most important of [the] factors, its existence alone does not suffice to establish a duty under Maryland law." Id. at 530 , 69 A.3d 1028 (quoting Gourdine , 405 Md. at 745 -46 , 955 A.2d 769 ). After establishing the overarching policy considerations, the Court narrowed its focus for determining the existence of a duty: What we find from a survey of our case law and that in other States is that whether a duty to warn extends to individuals such as Ms. Farrar depends, in large part, on (1) who is being sued and on what theory, and (2) when a manufacturer or supplier of an asbestos product is sued for failure to warn the household member, (i) 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, and (ii) 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 , under the State's negligence and product liability law. ²¹⁸ Id. at 531-32, 69 A.3d 1028 (emphasis added). Put simply, the Court stated that in a household member's product liability action against a manufacturer for failure to warn, the existence of a duty is determined by two factors. The first factor is what the manufacturer knew or reasonably should have known about the dangers posed to household members when the exposures occurred-the "foreseeability of harm." Id.

The second factor involves weighing the foreseeability of harm against other policy-based factors, including the relationship between the parties and the feasibility of providing warnings. Id. Because Ms. Farrar, a household member, had sued Georgia Pacific, a manufacturer, for failure to warn, the Court first considered what Georgia Pacific knew or should have known about the dangers to household members at the time the exposure occurred. Although the evidence at trial showed that a 1960 article from South Africa recognized the concern for household member exposure to asbestos, experts for both parties regarded a 1965 study from England as more significant.

Id. at 536-37, 69 A.3d 1028 . The Court noted, however, that "The clear and most widely broadcast breakthrough came in June 1972, when OSHA adopted regulations dealing specifically with the problem of tracking asbestos dust on clothing into the home." Id. at 537, 69 A.3d 1028 . The Court did not appear to resolve when Georgia Pacific was charged with knowledge of the danger its asbestos product posed to household members, and simply concluded that discussion by stating, "We have made clear that the fact that an individual or class of individuals is foreseeably within a zone of danger, though important, is not the sole criterion in determining a duty to ⁷⁹ warn, even in a product liability case." Id. at 540, 69 A.3d 1028 . Though recognizing the relevance of the manufacturer's knowledge of harm at the time of the exposure, the Court weighed competing policy considerations to determine whether a duty existed.

The Court stated, Determining the existence of a duty requires the weighing of policy considerations, among which are whether, in ²¹⁹ light of the relationship (or lack of relationship) between the party alleged to have the duty and the party to whom the duty is alleged to run, there is a feasible way of carrying out that duty and having some reason to believe that a warning will be effective. To impose a duty that either cannot feasibly be implemented or, even if implemented, would have no practical effect would be poor public policy indeed. Id. at 540, 69 A.3d 1028 . In other words, the Court considered the feasibility of warning the household member, and how effective that warning would be.

Id. Regarding the feasibility of Georgia Pacific warning Ms. Farrar, the Court expressed doubt that, in the era before home computers and social media, manufacturers and suppliers of products containing asbestos could have directly warned household members who had no connection with the product, the manufacturer or supplier of the product, the worker's employer, or the owner of the premises where the asbestos product was being used, not to have contact with dusty work clothes of household members who were occupationally exposed to asbestos. Id. at 540-41, 69 A.3d 1028 . Due to the lack of any relationship between Georgia Pacific and Ms. Farrar, the Court held that there was no feasible way to warn.

After discussing the feasibility of the warning, the Court considered how effective the manufacturer's warning to workers and bystanders would have been. The Court stated, Assuming such warnings would, in fact, have reached the workers, much less bystanders, until the 1972 OSHA regulations were adopted, unless employers or the owners of premises where asbestos dust would be present voluntarily provided protective clothing, changing rooms, and safe laundering-which the record before us does not suggest was done by any of Mr. Hentgen's employers or existed at any facility where Mr. Hentgen worked-what were the workers to do? Mr. Hentgen did the best he could by keeping his work clothes in the car all week and bringing them home only on the weekend to be laundered, but that proved ²²⁰ insufficient. The simple fact is that, even if Georgia Pacific should have foreseen back in 1968-69 that individuals such as Ms. Farrar were in a zone of danger, there was no practical way that any warning given by it to any of the suggested intermediaries would or could have avoided that danger.

Id. at 541, 69 A.3d 1028 . Because the evidence did not show what effective measures Mr. Hentgen could have taken to shield individuals such as Ms. Farrar from the zone of danger, the Court concluded that a warning would not have prevented harm to individuals such as Ms. Farrar. Id. Because the Court held that it was not feasible for Georgia Pacific to warn Ms. Farrar, and that a warning (even if feasible) would not have effectively prevented harm, the Court found that Georgia Pacific did not owe a duty in 1968-69 to warn Ms. Farrar of the danger of asbestos dust on her grandfather's clothes.

Id. ⁸⁰ Naturally, appellants attempt to distinguish their case from Farrar . They first contend that, by 1972, household members were within a foreseeable zone of danger. They go on to argue that "JCI owed a duty to warn even if it was not feasible to directly warn household members." Finally, appellants claim that a warning to the workers would have been effective because of OSHA's 1972 regulations. We shall address each contention in turn.

A. The Foreseeable Zone of Danger in June 1972 Appellants first claim that a duty to warn extended to household members starting in 1972 because OSHA had promulgated safety regulations for tracking asbestos dust into the home. Borrowing language from Farrar , appellants essentially argue that JCI "knew or reasonably should have known about the dangers of household exposure at the time the warning should have been given[.]" Id. at 531 , 69 A.3d 1028 . To support this argument, appellants note that Farrar stated that "The