Georgia–Pacific, LLC v. Farrar

• Decision Date: 26 September 2012
• Docket Number: No. 751,Sept. Term, 2010.,751
• Citation: 207 Md.App. 520,53 A.3d 424
• Parties: GEORGIA–PACIFIC, LLC f/k/a Georgia–Pacific Corporation v. Jocelyn Anne FARRAR.
• Court: Court of Special Appeals of Maryland

207 Md.App. 520

53 A.3d 424

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

v.Jocelyn Anne FARRAR.

No. 751, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Sept. 26, 2012.

James L. Shea (Mitchell Y. Mirviss, David S. Gray, Venable LLP, F. Ford Loker, Jr., Robin Silver, Miles & Stockbridge PC, on the brief), Baltimore, MD, for Appellant.

Edward J. Lilly (Thomas P. Kelly, William G. Minkin, Jennifer L. Lilly, Law Office of Peter G. Angelos, on the brief), Baltimore, MD, for Appellee.

Panel: KEHOE, WATTS, and MELANIE M. SHAW–GETER (Specially Assigned) JJ.

KEHOE, J.

On September 8, 2008, appellee, Ms. Jocelyn Farrar, sued over thirty defendants in the Circuit Court for Baltimore City alleging, inter alia, negligence, breach of warranty, and strict products liability, for failing to warn her about the toxic fibers found in the defendants' respective asbestos products. This appeal involves only one of the original defendants: appellant, Georgia–Pacific, LLC. Ms. Farrar's complaint alleges that, decades ago, she was exposed to asbestos fibers from a Georgia–Pacific product found on the clothing of her grandfather, who worked at a construction site near Georgia–Pacific products that contained asbestos. Ms. Farrar has since developedmesothelioma, a disease strongly linked to asbestos exposure.

On October 15, 2009, a jury trial commenced on the claims against Georgia–Pacific. The jury returned a general verdict finding that Ms. Farrar's exposure to Georgia–Pacific's product was a substantial factor in causing her injuries. A judgment was entered in favor of Ms. Farrar against Georgia–Pacific in the amount of $4,995,018.75. Georgia–Pacific noted this appeal on June 2, 2010 and presents the following questions to this Court:

1. Did the circuit court err by failing to rule, as a matter of law, that Georgia–Pacific had no duty to warn a household resident of the risk of exposure to asbestos fibers carried home by a bystander who worked at a construction site where a Georgia–Pacific product allegedly was used by other workers?

2. Did the plaintiff introduce sufficient evidence of frequent, close, and regular exposure to asbestos from a Georgia–Pacific product to prove that it was a substantial contributing cause of her injuries?

3. Did the circuit court err by issuing a coercive Allen-type charge in response to an allegedly ambiguous verdict before determining whether the jury was deadlocked?

We perceive no reversible error. We will affirm the jury verdict in favor of Ms. Farrar.

Factual and Procedural Background

Ms. Farrar's grandfather, Mr. Hentgen, worked as a union insulator using products containing asbestos in construction projects for almost fifty years, from 1925 into the 1970s. Ms. Farrar alleges that Mr. Hentgen was exposed to a toxic Georgia–Pacific product when he worked on the construction of the Forrestal Building in Washington, D.C. She further alleges that this toxic product contributed to her mesothelioma when she washed her grandfather's work clothes that were covered in asbestos dust. The following testimony was adduced at trial to support Ms. Farrar's case.

Evidence that Mr. Hentgen's clothing contained asbestos from a Georgia–Pacific product

Mr. Joseph Galvagna, who worked with Mr. Hentgen at the construction site of the Forrestal Building, testified to the following. Mr. Galvagna worked at the Forrestal construction site for about six or seven months beginning in December of 1968. Messrs. Galvagna and Hentgen were employed by the same sub-contractor and the witness saw Mr. Hentgen at least a few times a day over this six or seven month time period. Mr. Hentgen was a mechanic at the job site. He installed insulation on pipes, ducts, boilers and chillers. Mr. Galvagna was a first year apprentice at the job site. It was Mr. Galvagna's job to make sure the mechanics had all of the material they needed, to clean up after them, and to move equipment for them. They worked eight hours a day, five days a week. Many other types of tradesmen and craftsmen worked at the Forrestal construction site, including electricians, drywall workers, flooring workers, ceiling workers and steamfitters (the workers who installed the pipes that Mr. Hentgen insulated).

At trial, Mr. Galvagna was specifically asked about the type of drywall work that was performed at the Forrestal Building. Mr. Galvagna explained that there was a “tremendous amount” of drywall work done at the Forrestal Building. Drywall work consisted of cutting pieces of drywall with a utility knife and fastening those pieces of drywall to wood or metal studs with a drill gun. Workers then apply two or three coats of drywall cement between the sheets of drywall to fill in the seams between individual pieces. Subsequently, according to Mr. Galvagna, the workers waited for the cement to dry and sanded “the cement down so that when they painted it, you couldn't see where they had made the joints.”

Mr. Galvagna testified that sanding created “quite a bit of dust” that “would sometimes just fly around in the air.” He further testified that a clean up crew would clean up the dust with a broom and a shovel after the dust settled and “would stir it back up again.” According to Mr. Galvagna, much of the drywall cement was packaged in five gallon Georgia–Pacific buckets. He knew the drywall was a Georgia–Pacific product because Georgia–Pacific “was written on both sides of the bucket in nice plain legible letters.” Mr. Galvagna recalled seeing hundreds of these Georgia–Pacific buckets at the Forrestal job site. He did not recall seeing warning labels on any of the buckets.

The Georgia–Pacific drywall product was called Ready–Mix. Ready–Mix was manufactured by Georgia–Pacific from 1963 to approximately 1977. The asbestos component of Ready–Mix was approximately 1.5 percent to 5 percent chrysotile asbestos. Georgia–Pacific indicated that Ready–Mix was normally applied as a taping, finishing, or texturing material over joints, fastener heads, corners, and entire areas of gypsum wallboard. An asbestos-free formulation of Ready–Mix was introduced in 1976. There was no indication at trial that Mr. Hentgen ever personally used the Georgia–Pacific Ready–Mix product.

Mr. Galvagna testified that Mr. Hentgen would sometimes work within four to five feet of the drywall workers. Over the course of the six or seven month time period that Mr. Galvagna worked at the Forrestal site, he estimated that Mr. Hentgen worked in the area of the drywall workers “about 50 to 75 percent of the time.” When Mr. Hentgen worked around the dust, Mr. Galvagna stated that the dust would settle on Mr. Hentgen's clothing, hair, skin and shoes. Mr. Galvagna testified that Mr. Hentgen did not shower or change his clothes upon leaving the work site.

Mr. Galvagna also remembered seeing other asbestos-containing cement products at the job site. He saw Johns–Manville 7M, Johns–Manville 352 and Eagle–Pitcher cement. These were the cement products used by insulators like Mr. Hentgen. Mr. Hentgen also worked with pipe insulation. The pipe insulation consisted of a product called Kaylo, manufactured by Owens–Corning, and Thermobestos, manufactured by Johns–Manville. These products were used under the hangers that hold the piping in the air.

Evidence that Ms. Farrar was exposed to a Georgia–Pacific asbestos-containing product

Ms. Farrar attended high school from 1966 to 1970. During that time, she lived with her sister and her aunt at her grandparents' house. Ms. Farrar and her sister had various responsibilities around the house, including dusting, sweeping, vacuuming, mowing the lawn, weeding the garden, and as they got older, doing the household's laundry. Ms. Farrar did the laundry at least once a week during the period her grandfather worked on the Forrestal Building. She not only washed her own clothes, but she cleaned the clothing of other family members as well. Ms. Farrar recalls that her grandfather's work clothing was part of the laundry cycle every week. She specifically remembers shaking her grandfather's work clothes thoroughly because the dust particles attached to his clothing would stick to her navy blue clothing. She was also concerned about the dust from his clothing clogging the drain in the washing machine. After shaking out her grandfather's work clothing, she remembers breathing in the dust that was removed from the clothing. She also remembers having to sweep up dust on the ground that resulted from shaking out her grandfather's work clothes. Ms. Farrar described the dust as whitish-grayish, loose and fluffy.Medical evidence of Arthur L. Frank, M.D.

Dr. Frank was accepted by the court as an expert in the fields of internal medicine, occupational medicine, asbestos-related disease and mesothelioma. Dr. Frank testified that asbestos disease is dose related: “the likelihood of getting [the] disease increases with increasing amounts of exposure.” He relayed to the jury that, based on Ms. Farrar's medical files and a “fiber burden” analysis that was conducted on the contents of her lungs, she was exposed to more than background levels of asbestos. He further relayed that “[p]eople have actually measured that exposures [to asbestos] in a household ... can be the same as workplace levels when people are working with asbestos.” Given the evidence presented by Ms. Farrar, Dr. Frank concluded that all of the exposures to asbestos from Georgia–Pacific products were contributing factors in the development of Ms. Farrar's mesothelioma. He also stated that all exposures to asbestos—not just exposures to Georgia–Pacific asbestos products—would have, in a cumulative fashion, contributed to the development of her disease.

Medical evidence of John C. Maddox, M.D.

Dr. Maddox was accepted by the trial court as an expert in the areas of anatomic pathology and the diagnosis and causation of mesothelioma. He testified that mesothelioma can be caused by brief, low-dose, intermittent...