Maryland acknowledges practical limits on the duty to warn

Maryland’s highest court has rejected an asbestos “duty to warn” lawsuit brought by the granddaughter of a worker who, for several months in the late 1960s, worked near another worker who used products containing asbestos.  In this case, plaintiff Jocelyn Farrar was the granddaughter of John Hentgen, who worked in the construction industry as a mechanic and insulator.   For several months in 1968, he worked on a project in close proximity to the drywall installers, who worked with asbestos-containing cement.  The drywall work created asbestos dust, some of which got on Mr. Hentgen’s clothes.  Ms. Farrar, in high school at the time and living with her grandparents, laundered her grandfather’s work clothes and alleged that the asbestos dust from the laundry caused her mesothelioma.  She sued 30 defendants, of whom only Georgia-Pacific remained on this appeal.  The intermediate court upheld the jury’s $5 million judgment in Ms. Farrar’s favor and the state high court has now reversed.

In a unanimous opinion, the court held that this “bystander-of-a-bystander” case sought to expand the duty to warn beyond any reasonable ability of a manufacturer-defendant to actually convey an effective warning and, because the law does not require an impossibility, public policy would not allow such expansion.  PLF filed an amicus brief in the case, emphasizing this point.  The court also noted that, in the 1960s, although the dangers of asbestos were generally known, there was a dearth of information about dangers presented by fibers on clothing that workers took home at the end of the day.  The court would not presume, in the absence of evidence, that manufacturers or employers had that knowledge.  The key paragraphs from the court’s conclusion are here:

             “Determining the existence of a duty requires the weighing of policy considerations, among which are whether, in 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.”

” With respect to implementation, in an era before home computers and social media, it is not at all clear how the hundreds or thousands of 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.  The  best that the plaintiff offers in her brief was for Georgia Pacific to have “spread the word” to distributors of the product, the owners of land on which the product was used, contractors who supervised the workers, and union officials, and rely on them to inform everyone working in the vicinity of asbestos. Presumably, the word to be spread was that asbestos dust collected on work clothes could be dangerous if brought into the home.”

“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 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.”