Ga. Pac., LLC v. Farrar

• Decision Date: 15 August 2013
• Docket Number: No. 102,Sept. Term, 2012.,102
• Citation: 432 Md. 523,69 A.3d 1028
• Parties: GEORGIA PACIFIC, LLC, f/k/a Georgia–Pacific Corporation v. Jocelyn A. FARRAR.
• Court: Maryland Court of Appeals

432 Md. 523

69 A.3d 1028

GEORGIA PACIFIC, LLC, f/k/a Georgia–Pacific Corporation

v.Jocelyn A. FARRAR.

No. 102, Sept. Term, 2012.

Court of Appeals of Maryland.

July 8, 2013.

Reconsideration Denied Aug. 15, 2013.

James L. Shea (Mitchell Y. Mirviss and David S. Gray of Venable, LLP, Baltimore, MD; F. Ford Loker, Jr. and Robin Silver of Miles & Stockbridge, P.C., Baltimore, MD), on brief, for Petitioner.

Mark A. Behrens, Esquire, Christopher E. Appel, Esquire, Shook, Hardy & Bacon, L.L.P., Washington DC, William L. Anderson, Esquire, Rebecca C. Baden, Esquire, Crowell & Moring, LLP, Washington, DC, for Amici Curiae brief of Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, American Insurance Association, Property Casualty Insurers Association of America, American Petroleum Institute, American Chemistry Council, Alliance of Automobile Manufacturers, and NFIB Small Business Legal Center in support of Petitioner.

Hugh F. Young, Jr., Esquire, Product Liability Advisory Council, Inc., Reston, VA, Terri S. Reiskin, Esquire, Dykema Gossett PLLC, Washington, DC, for Amicus Curiae brief of Product Liability Advisory Council, Inc. in support of Defendant–Petitioner Georgia–Pacific, LLC.

Neil J. MacDonald, Esquire, MacDonald Law Group, LLC, Beltsville, MD, Nicholas P. Vari, Esquire, Michael J. Ross, Esquire, Gregory T. Sturges, Esquire, K & L Gates, LLP, Pittsburgh, PA, for Amicus Curiae brief of Crane Co. in support of Petitioner.

Theodore Hadzi–Antich, Esquire, Deborah J. La Fetra, Esquire, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae brief of Pacific Legal Foundation in support of Petitioner Georgia–Pacific, LLC.

Edward J. Lilly (Thomas P. Kelly, William G. Minkin and Jennifer L. Lilly of The Law Offices of Peter G. Angelos, P.C., Baltimore, MD), on brief, for Respondent.

Argued before BELL, C.J.,^*HARRELL, BATTAGLIA, GREENE, BARBERA, McDONALD and ALAN M. WILNER (Retired, specially assigned), JJ.

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 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.

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 (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 case.

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...