Bernier v. Raymark Industries, Inc.

• Decision Date: 15 October 1986
• Citation: 516 A.2d 534
• Court: Maine Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 11,145 Desneige BERNIER, et al. v. RAYMARK INDUSTRIES, INC.

Page 534

516 A.2d 534

55 USLW 2242, Prod.Liab.Rep. (CCH) P 11,145

Desneige BERNIER, et al. v. RAYMARK INDUSTRIES, INC.

Supreme Judicial Court of Maine.

Argued June 2, 1986.

Decided Oct. 15, 1986.

McTeague, Higbee, Libner, Reitman, MacAdam & Case, G. William Higbee (orally), Brunswick, for plaintiffs.

Thompson, McNaboe & Ashley, Thomas R. McNaboe (orally), Mark G. Furey, Portland, for defendant.

Bernstein, Shur, Sawyer & Nelson, Peter J. Rubin (orally), Linda A. Monica, Portland, for intervenors.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ.

SCOLNIK, Justice.

The United States District Court for the District of Maine has certified to this court the following questions of Maine law pursuant to 4 M.R.S.A. § 57 (Supp. 1985-1986) and Rule 76B of the Maine Rules of Civil Procedure:

(1) Whether evidence of the state-of-the-art is admissible in an action based on 14 M.R.S.A. § 221 when the product defect alleged is a failure to warn;

(2) whether damages allowed under Maine's Wrongful Death Act are recoverable in an action based on 14 M.R.S.A. § 221; and

(3) whether 14 M.R.S.A. § 221 may be applied where all inhalation of the asbestos dust which caused the diseases and deaths complained of occurred before October 3, 1973, the effective date of the statute, but where the diseases were diagnosed and the deaths occurred after October 3, 1973.

The requirements for our acceptance of the questions of law from the federal court are met. See Hiram Ricker & Sons v. Students

International Mediation Society, 342 A.2d 262, 264 (Me.1975). ¹ We answer the first two questions in the affirmative. We also answer yes to the third question, but in only the limited way described in this opinion.

I. Background

Subject matter jurisdiction of the United States District Court in this case is based solely on diversity of citizenship. Thus the substantive law of Maine governs the action. The federal court has provided a statement of facts relevant to the present controversy. These facts may be summarized as follows.

Roland Bernier, the deceased husband of the plaintiff, Desneige Bernier, worked for Bath Iron Works (BIW) as a boilermaker from 1942 to 1945. During that tenure, Bernier inhaled asbestos dust from products manufactured and sold by the defendant, Raymark Industries, Inc. (Raymark), then known as Raybestos-Manhattan, Inc. After 1945, Bernier ceased working at BIW. He did not inhale any asbestos dust or fibers after that date. In 1975, he was diagnosed as having pleural mesothelioma, an asbestos induced cancer of the lining of the lungs. He died on February 16, 1979.

Frank Clark, the deceased husband of the plaintiff, Phyllis Clark, worked for BIW as an electrician from the late 1930's to 1948 and again from 1949 to 1970. While employed at BIW, he inhaled asbestos dust and fibers from Raymark products. As a result of his inhalation of the asbestos fibers, Frank Clark contracted lung cancer. His disease was diagnosed in 1978 and he died therefrom in May, 1979.

The plaintiffs sued Raymark in federal court for wrongful death, alleging negligence and strict product liability under 14 M.R.S.A. § 221 (1980) for failure to give adequate warnings on its products that would alert purchasers or foreseeable users of the health hazards posed by the inhalation of asbestos dust. ² Before trial, the plaintiffs asked the trial judge to exclude, with respect to their section 221 claims, so-called state-of-the-art evidence; evidence of what was known or reasonably could have been known by the defendant, or by medical or other experts, about the health hazards created by the inhalation of asbestos fibers at the time the various asbestos products were sold to BIW. The trial judge granted the plaintiffs' request. The plaintiffs proceeded to trial solely under section 221, dropping their negligence claims.

At the close of the evidence, the defendant moved for a directed verdict, contending, inter alia, that the application of section 221 to these cases would constitute an impermissible retroactive application of that statute because Roland Bernier and Frank Clark had not inhaled any asbestos dust from a Raymark product after October 3, 1973, the effective date of section 221. The trial judge denied the motion. In response to special interrogatories, the jury returned a verdict in favor of the plaintiffs.

Preliminary to the damages phase of the trial, the defendant argued that the plaintiffs could not recover damages available under Maine's Wrongful Death Act, 18-A M.R.S.A. § 2-804 (1981 & Supp.1985-1986), in an action based on section 221. The trial judge decided to allow the plaintiffs to present their wrongful death claims and to reserve a ruling on the matter until post-trial motions were presented. The jury awarded damages to the plaintiffs and judgment was entered.

The defendant filed motions for judgments notwithstanding the verdict and for new trials, renewing its contentions that so-called state-of-the-art evidence was improperly excluded, that damages for wrongful death are not recoverable in an action based on section 221, and that section 221 cannot be applied when all inhalation of the asbestos dust from the defendant's product occurred prior to the effective date of the statute. The certified questions from the federal court to this court followed.

II. Admissibility of State-of-the-Art Evidence

The first issue is whether state-of-the-art evidence is admissible in an action based on 14 M.R.S.A. § 221 when the product defect alleged is a failure to warn. Maine's strict liability statute, section 221, imposes liability on manufacturers and suppliers who market defective, unreasonably dangerous products. The seller becomes subject to liability if an unreasonably dangerous product causes injury to a foreseeable consumer or user. Thus, section 221 does not impose absolute liability on the part of the manufacturer; the product must be in some respect defective before liability will be imposed. See generally Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 282-83 (Me.1984). Section 221 provides in full:

One who sells any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it is sold. This section applies although the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Courts are divided on the issue whether in determining, for the purpose of strict liability, that a product is defective and unreasonably dangerous because of a failure to warn, ³ evidence that the defendant knew or reasonably should have known of the product's dangerousness is relevant, or whether knowledge is automatically imputed to the manufacturer regardless of the blameworthiness of his failure to know. The district court judge stated in this case that the plaintiffs moved to exclude "any evidence in support of the state-of-the-art defense" and that the issue was whether the defendant may introduce such evidence. In the context of this record, we answer the first certified question by stating that under section 221, when the product defect alleged is a failure to warn, the defendants may introduce evidence to show that they neither knew nor reasonably could have known, of the dangerous characteristics of asbestos.

The Legislature formulated section 221 directly from section 402A of the Restatement (Second) of Torts (1965). ⁴ Austin j. Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.

v. Raybestos-Manhattan, Inc., 471 A.2d at 286; Adams v. Buffalo Forge Co., 443 A.2d 932, 940 (Me.1982). Since section 221 and its legislative history does not have anything to say about whether state-of-the-art evidence is relevant when the product defect is based on a failure to warn, the commentary to section 402A is an appropriate place to begin our analysis. That commentary makes clear that in determining whether a product is defective because of a failure to warn, the manufacturer is only required to warn of dangers about which he knew or should have known. Specifically, comment j to section 402A provides:

But a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of the danger, is generally known and recognized. Again the dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious...