Defense Litigation Insider Helping you navigate a clear path through complex litigation.

Maryland Court Continues Trend, Holding There Is No Duty To Warn For Household Exposure

Posted in Asbestos Litigation, Litigation Trends, Maryland Courts, Toxic Tort

The Maryland Court of Appeals unanimously ruled that Georgia-Pacific Corp. was not liable for illness involving a woman who was exposed to asbestos while doing her father’s laundry in the 1960s.

The Insurance Journal reported on the recent decision:

  • The Court of Appeals ruled that Georgia-Pacific Corp. was not obligated to warn relatives of the dangers of asbestos in the 1960s.
  • The hazard was not sufficiently known until federal regulations were issued in 1972 by the U.S. Occupational Safety and Health Administration.
  • The court’s ruling overturns a $5 million verdict.
  • Jocelyn Farrar had been exposed while doing laundry in the late 1960s and fell ill decades later.

In the decision, available on the website of the Maryland high court (pdf download), the Court explained that it rejected liability because:

  • There was no duty to warn persons such as Ms. Farrar, who was a “bystander of a bystander,” a person who never used the product and never directly came into contact with it.
  • The duty extends to those whom the supplier should expect to use the product or to third persons whom the supplier should expect to be endangered by its use.
  • Even if the danger was foreseeable, prior to 1972 OSHA regulations, it would have been difficult for the company to have provided a warning that could have avoided the danger.

The Maryland decision continues the recent trend in rejecting a duty in cases involving secondary exposure.  In 2012, California followed Ohio and joined the growing list of states which reject the defendant’s duty to an employee’s family member in “take home asbestos” cases. In an article featured in the DRI‘s Newsletter and published on May 9, 2014, co-authors Carter E. Strang and Karen E. Ross also noted the jurisdictions which have rejected secondary exposure claims.  Since their publication, California and Maryland have joined approximately nine other states in rejecting a duty in secondary exposure cases.  Another California court recently came to the same conclusion as the earlier California case in an unreported decision.

However, as Strang and Ross noted in their January 16, 2014 DRI article (pdf download), it is unclear how these cases will play out at the trial level, as a verdict of over $27 million was recently entered in California in a case involving take-home asbestos exposure.

As the National Association of Manufacturers noted, the Maryland Court of Appeals found:

“that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. “

Conclusion

Courts nationwide are increasingly rejecting the claims by plaintiffs and their attorneys that seek to impose duties far removed from the allegedly wrongful act.  Defense attorneys can and should seek to impose reasonable limits on the issue of duty to those instances in which harm is reasonably foreseeable to the alleged tortfeasor.  Raising appropriate defenses in cases involving “take home” claims “household” exposure, or secondary exposure is essential to the defense of toxic tort claims.