Georgia Pacific, LLC v. Farrar

WILNER, J. This is another in a growing line of cases in which a household member contracted mesothelioma, allegedly from exposure to asbestos fibers brought into the home on the clothing of another household member who was exposed to asbestos-laden products in the course of his employment. It raises an issue, however, not previously considered by this Court. The plaintiff in this case is Jocelyn Farrar. From the time she was a baby in the early 1950s until she married in 1974, she lived with other family members in her grandparents’ home.

Her grandfather, John Hentgen, was a mechanic in the construction industry who, beginning in 1925 and extending into the 1970s, worked directly with or in the vicinity of asbestos-laden products. At least for part of that time, Mr. Hentgen wore street clothes to and from work, but at the job site he would change into work clothes, which he kept bundled up in his car during the week and brought into the home at the end of the week to be washed. 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. The washing machine was in the basement, which is where Ms. Farrar said she spent most of her time.

In 2008, Ms. Farrar was diagnosed with mesothelioma. The case against Georgia Pacific was linked especially to a six or seven-month period in 1968-69, when Mr. Hentgen worked on a construction project at the Forrestal Building in Washington, D.C. His job was insulating pipes, which did not involve the use of any Georgia Pacific product. He was in the ⁵²⁶ immediate vicinity, however, of workers installing drywall, who applied and then sanded the Georgia Pacific Ready-Mix joint compound to smooth the joints between the drywall slabs. During that period, Ready-Mix contained asbestos, and the sanding created a great deal of dust that got on Mr. Hentgen’s clothes, hair, and skin.

Although, as noted, he changed his clothes before going home, he did not shower until bedtime. Following her diagnosis of mesothelioma, Ms. Farrar filed suit in the Circuit Court for Baltimore City against more than 30 defendants, including Georgia Pacific. By the time of trial, only her strict liability and negligence claims against Georgia Pacific and its cross-claims against three settling defendants remained at issue. Following a two-week trial, the jury returned a substantial verdict in Ms. Farrar’s favor.

After various adjustments, a judgment was entered against Georgia Pacific for over $5 million. Georgia Pacific had moved for judgment in its favor based, in part, on the lack of a duty to warn Ms. Farrar of the danger from its product, which the court denied. Following the verdict, the court denied the company’s motion for judgment NOV. Georgia Pacific appealed, claiming both that it had no duty to warn Ms. Farrar and that the evidence was legally insufficient to establish that its Ready-Mix product was a substantial contributing factor in causing Ms. Farrar’s mesothelioma.

Rejecting both claims, the Court of Special Appeals affirmed the circuit court judgment, Georgia-Pacific v. Farrar, 207 Md.App. 520 , 53 A.3d 424 (2012). We granted certiorari to review the intermediate appellate court’s judgment. We shall reverse that judgment on the ground that, at the relevant time, there was no duty to warn persons such as Ms. Farrar, and we therefore need not address the second issue of whether the evidence sufficed to show that exposure to asbestos fibers emanating from the Ready-Mix product was a substantial contributing cause of Ms. Farrar’s mesothelioma. ⁵²⁷ Georgia Pacific states the issue as “whether product manufacturers owe a duty to warn the ‘bystander of a bystander’ — a person who never used the product, who never was a bystander to the product’s use, who never came into contact with the product, and who was a stranger to the manufacturer ...” Relying largely on Gourdine v. Crews, 405 Md. 722 , 955 A.2d 769 (2008), Doe v. Pharmacia, 388 Md. 407 , 879 A.2d 1088 (2005), Dehn v. Edgecombe, 384 Md. 606 , 865 A.2d 603 (2005), and Adams v. Owens-Illinois, Inc., 119 Md.App. 395 , 705 A.2d 58 (1998), Georgia Pacific contends that: (1) the existence of a duty is determined, as a matter of law, by weighing the relationship between the parties, the foreseeability of injury, and the defendant’s ability to identify and reasonably warn the universe of individuals potentially at risk; (2) foreseeability of harm alone is not a dispositive factor; and (3) imposition of a duty that runs to an indeterminate class that lacks any relationship with the defendant is not favored. Georgia Pacific argues that it had no relationship with Ms. Farrar, that she never used its product or was a bystander to its use, that its product was not a direct cause of her injury, and that it had no ability or duty to identify and warn her.

The plaintiff argues that the cases relied on by Georgia Pacific are irrelevant to product liability claims. Adams, Doe, and Dehn , she points out, involved either an employer/employee or a doctor/patient relationship, and the Court merely held that any duty from the employer or doctor extended no farther than to the employee or patient and not to a spouse of the employee or patient. See also Barclay v. Briscoe, 427 Md. 270 , 47 A.3d 560 (2012). She finds Gourdine inapplicable because the plaintiff there was not injured by the product itself but rather by an individual who had ingested the product.

Product liability claims, the plaintiff asserts, are different. They are governed by the principles set forth in Moran v. Faberge, Inc., 273 Md. 538 , 332 A.2d 11 (1975), Eagle Picher v. Balbos, 326 Md. 179 , 604 A.2d 445 (1992), and Anchor Packing v. Grimshaw, 115 Md.App. 134 , 692 A.2d 5 ⁵²⁸ (1997), which extend a duty to warn to anyone within the general field of danger who may come into contact with the product. The Court of Special Appeals accepted that approach, which undergirded its conclusion that a duty to warn existed in this ease. We believe that both lines of cases are relevant.

They all dealt with an alleged breach of a duty to warn, which sounded in negligence and involved two determinations — the nature and elements of the concept of “duty” in tort law, and how those elements interacted with the elements of the particular tort in the context of the relationship between the parties. There is a commonality in the first determination; the distinctions lie in the second. In Moran , which the parties agree was a product liability case based on a duty to warn, the Court noted that “a manufacturer’s duty to produce a safe product, with appropriate warnings and instructions when necessary, is no different from the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others.” Moran, 273 Md. at 543 , 332 A.2d at 15 . In Dehn and Doe , which were not product liability cases, we made clear that, in an action sounding in negligence, the plaintiff must allege and prove (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.

See also 100 Investment v. Columbia Town Ctr. Title, 430 Md. 197, 212-13 , 60 A.3d 1, 10 (2013). In Gourdine , we stated that the same requirements were applicable to a negligence count in a product liability action, citing, among other cases, Doe and Dehn. See Dehn, supra, 384 Md. at 619 , 865 A.2d at 611 ; Doe, supra, 388 Md. at 414 , 879 A.2d at 1092 ; Gourdine, supra, 405 Md. at 738 , 955 A.2d at 779 .

We turn to the first, and, in this case most directly relevant, of those four elements — was Georgia Pacific under a duty to protect Ms. Farrar from injury by reason of any exposure she may have to asbestos fibers that were embedded in its Ready- ⁵²⁹ Mix compound? In determining whether a duty exists under common law, we have accepted the definition of “duty” crafted by Deans William Prosser and W. Page Keeton, as “an obligation to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” See 100 Investment, supra, 430 Md. at 213 , 60 A.3d at 10 , citing Prosser and Keeton on The Law of Torts, § 53 (5th ed. 1984); also Gourdine, 405 Md. at 745 , 955 A.2d at 783 and Barclay v. Briscoe, supra, 427 Md. at 293 , 47 A.3d at 574 . We concluded in Gourdine 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” and, quoting from Rosenblatt v. Exxon, 335 Md. 58, 77 , 642 A.2d 180, 189 (1994) that “ultimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiffs interests are, or are not, entitled to legal protection against the conduct of the defendant.” Id. In Doe , we observed that “[t]here is no set formula for the determination of whether a duty exists,” that “[w]e have applied a ‘foreseeability of harm’ test, ‘which is based upon the recognition that duty must be limited to avoid liability for unreasonably remote circumstances,’ and that ‘[w]e have also looked at the relationship of the parties.’ ” Doe, 388 Md. at 415 , 879 A.2d at 1092-93 .

Quoting from Patton v. USA Rugby, 381 Md. 627, 637 , 851 A.2d 566, 571 (2004), we recounted the following non-exclusive list of factors for balancing the policy considerations inherent in the determination of whether a duty exists: “The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” ⁵³⁰ In 100 Investment, supra, 430 Md. at 213-14 , 60 A.3d at 10-11 , we confirmed as guideposts in that weighing process “the nature of the harm likely to result from a failure to exercise due care” and “the relationship between the parties.” In Gourdine — again in a general common law context — we confirmed the point also made in Patton, supra, that, where the failure to exercise due care creates risks of personal injury, the principal determinant of duty becomes foreseeability, which “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.” The Court made clear, however, again citing earlier cases, that “the fact that a result may be foreseeable does not itself impose a duty in negligence terms” and that “[wjhile foreseeability is often considered among the most important of [the] factors, its existence alone does not suffice to establish a duty under Maryland law.” Gourdine, 405 Md. at 745-46 , 955 A.2d at 783-84 . These consistent pronouncements were all in the general context of determining when a tort duty exists, in particular a duty to warn. They neither focused on nor excluded any particular tort, including product liability. What they tell us is that, whether a person has a legal duty to warn other individuals who may suffer harm by reason of the person’s conduct, or lack thereof, depends on a number of factors that need to be balanced, that the foreseeability of harm to those individuals, at least in some instances, may be the most important of those factors, but that foreseeability of harm it is not the only factor to be considered.

We are long past any debate that asbestos is a dangerous product — that exposure to it may cause not only mesothelioma but also a variety of other diseases of the lungs — and that, absent some particular exception in the law, there is a duty on the part of the manufacturer of asbestos-laden products to warn of the danger. See Eagle-Picher v. Balbos, supra, 326 Md. 179 , 604 A.2d 445 . The more focused issue is, to whom does that duty extend? The general standard on that issue, clearly applicable to product liability cases and, in particular, to exposure to asbestos, is stated in § 388 of the Restatement ⁵³¹ (Second) of Torts — that the duty extends “to those whom the supplier should expect to use the chattel” with the consent of the person to whom it is supplied “or to be endangered by its probable use.” 1 Comment d. to § 388 emphasizes that the supplier is subject to liability “not only to those for whose use the chattel is supplied but also to third persons whom the supplier should expect to be endangered by its use.” (Emphasis added) The plaintiff highlights that provision as the answer to the question.

It was foreseeable, she contends, that individuals working with or in the vicinity of the Ready-Mix product would get asbestos-laden dust on themselves and their clothing, that they would bring that dust home with them, and that other household members, especially those who directly came into contact with the clothing, would be exposed to the asbestos, that those household members were therefore in danger of contracting asbestos-related diseases, and that they were entitled to be warned of the danger. Georgia-Pacific accepts that the duty to warn extends not just to those who actually handle the product but also to workers in close proximity to the use of the product — immediate bystanders. See Eagle Picher v. Balbos, supra, 326 Md. at 196 , 604 A.2d at 453 . The company insists, however, that, as a matter of law, that is where the duty ends.

Neither view is entirely correct. 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 ⁵³² 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. With respect to who is being sued and on what theory, plaintiffs seeking recovery for injuries due to asbestos brought into the home on the clothing of other household members have advanced theories of recovery other than traditional product liability, and that needs to be taken into account in assessing the relevance of those decisions. Some household-member plaintiffs have sued the worker’s employer, claiming an extended duty to household members to provide a safe workplace.

Several courts, including the Court of Special Appeals, have concluded that that duty extends only to employees and others who were exposed while present in the workplace and not to individuals in the employees’ household whose exposure did not occur in the workplace. See, in addition to Adams v. Owens-Illinois, supra, 119 Md.App. 395 , 705 A.2d 58 ; In the Matter of New York City Asbestos Litigation, 5 N.Y.3d 486 , 806 N.Y.S.2d 146 , 840 N.E.2d 115 (2005); and CSX Transportation, Inc. v. Williams, 278 Ga. 888 , 608 S.E.2d 208 (2005). Although that view is consistent with our holding in Doe , it is not a unanimous view. See Chaisson v. Avondale Industries, Inc., 947 So.2d 171 (La.App.2006); and Simpkins v. CSX Transportation, 358 Ill.Dec. 613 , 965 N.E.2d 1092 (2012).

Some household-member plaintiffs have sued the worker’s employer for failure to comply with OSHA safety regulations regarding asbestos (see infra). So far, they, too, have been unsuccessful. See Riedel v. ICI Americas, Inc., 968 A.2d 17 (Del.2009) and Price v. E.I. DuPont de Nemours, 26 A.3d 162 (Del.2011). Other actions by household members have been against the owner of the facility where the occupational exposure occurred based on an extended stretch of premises liability.

Those ⁵³³ actions have largely been unsuccessful as well. See In re Certified Question From the Fourteenth District Court of Appeals of Texas, 479 Mich. 498 , 740 N.W.2d 206 (2007); Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510 , 929 N.E.2d 448 (2010); Campbell v. Ford Motor Co., 206 Cal.App.4th 15 , 141 Cal.Rptr.3d 390 (2012); and In re Eighth Judicial District Asbestos Litigation, 12 Misc.3d 936 , 815 N.Y.S.2d 815 (2006); but compare Olivo v. Owens-Illinois, Inc., 186 N.J. 394 , 895 A.2d 1143 (2006), reaching an opposite result. Where the action is not based on the duty to provide a safe workplace or premises liability but is against the manufacturer or supplier of the asbestos-laden product based on a duty to warn, the cases have turned more directly on the foreseeability of harm to the person to whom the duty is alleged to owe— whether the defendant should have recognized that household members were in a significant zone of danger because of toxic dust brought home on the worker’s clothing and body. Ethel Granski — one of the four plaintiffs in Anchor Packing v. Grimshaw, 115 Md.App. 134 , 692 A.2d 5 (1997) (Grimshaw), vacated on other grounds sub nom.

Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998)—allegedly contracted mesothelioma from exposure to asbestos dust brought into the home by her stepfather, who collected that dust on his clothing while at work. Like Ms. Farrar, Ms. Granski, during the period 1953 to 1963, was responsible for washing the clothing. Like Ms. Farrar, she sued the manufacturer of the asbestos present at the worksite. Rejecting the manufacturer’s argument that Ms. Granski’s injury was not foreseeable, the Court of Special Appeals held: “In the case