January 31, 2014
For decades, asbestos cases have wound their way through state and federal courts. The first wave of cases, starting in the 1970s, was brought by construction workers and other plaintiffs who were directly exposed to asbestos.1 Thousands of direct-exposure cases led to the bankruptcy of major asbestos-producing companies, including Johns-Mansville.2 Thirty years later, most direct-exposure plaintiffs have obtained relief or died. That, you might think, would mean an end to asbestos lawsuits. And yet, litigation is alive and well, thanks to a second wave of lawsuits.3 Many plaintiffs in this second wave allege that they were exposed to asbestos through the contaminated work clothing of spouses or family members.4
Georgia Pacific LLC v. Farrar was part of that second wave of “take-home” asbestos cases.5 The plaintiff, Joyce Farrar, lived with her grandparents in Maryland in the 1960s. Her grandfather, a construction worker at a federal building in Washington, DC, in 1968 and 1969, did not use any asbestos products himself, but he spent time near drywall workers who used an asbestos-based Georgia-Pacific joint compound. As a teenager, Ms. Farrar shook out her grandfather’s dust-covered work clothes, washed the clothes, and swept the dust from the laundry room floor. Forty years after laundering her grandfather’s clothes, in 2008, Farrar was diagnosed with mesothelioma. She sued thirty defendants, including Georgia-Pacific, in Maryland state court, and a jury awarded her nearly $20 million.
Farrar presented the Maryland Court of Appeals, the Free State’s highest court, with two questions: (1) whether Georgia-Pacific owed a duty to warn the family members of workers who came into contact with its products about the dangers of asbestos and (2) whether Farrar presented sufficient evidence that Georgia-Pacific’s products caused her mesothelioma. Unanimously finding the answer to the first question to be no, the court did not answer the second.
The Maryland court’s holding was in some respects unremarkable. Based on the Second Restatement of Torts, Farrar reasoned that “[a] manufacturer cannot warn of dangers that were not known to it or knowable in light of the generally recognized and prevailing scientific and technical knowledge available at the time of manufacture and distribution.”6 Some state courts before Farrar had ruled that manufacturers owed a duty to family members of asbestos workers.7 In this light, the Maryland decision represents a significant step to limit future “take-home” asbestos claims.
Farrar found that, based on the state of scientific research in the late 1960s, Georgia-Pacific could not have known that asbestos-contaminated clothing could harm workers’ families. A few studies in the 1960s suggested exposure to dust that traveled home on the workers’ clothes could cause health problems, but OSHA did not require employers to provide changing rooms and specialized clothing for asbestos workers until 1972. Even though it was “in hindsight perhaps fairly inferable” that asbestos dust could harm workers’ families, that inference was not enough to impose a duty. 8 In other words, the uncertain state of science about secondhand asbestos exposure prior to the 1972 OSHA regulations made it unforeseeable to Georgia-Pacific that family members like Joyce Farrar who never stepped foot on a construction site could suffer harms from its products.
Foreseeability was not, however, the only element of Farrar’s duty analysis. The court further held that whether Georgia-Pacific had a duty to warn family members depended on whether any warnings would have been feasible and effective. Because OSHA did not issue regulations on changing rooms for asbestos workers until 1972, even if Georgia-Pacific had told its customers—builders and manufacturers—about the dangers of asbestos dust exposure, nothing guaranteed those middlemen would have passed that warning along to asbestos workers, let alone to members of their families. Thus, “even if Georgia-Pacific should have foreseen back in 1968–69 that individuals such as Ms. Farrar were in a zone of dangers, there was no practical way that any warning . . . could have avoided that danger.”9
Feasibility and foreseeability make for unusual bedfellows. Earlier Maryland cases suggest that whether a defendant’s warning would have been effective is an element of proximate cause, not foreseeability.10 And Maryland is not alone. In the famous Palsgraf case, for instance, the dissent by Judge Andrews argued that proximate cause means “the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”11 Judge Cardozo’s majority opinion, on the other hand, eschewed the practical considerations of proximate cause in favor of foreseeability.12 Farrar’s addition of feasibility to foreseeability blends the two sides of the Palsgraf debate into an uneasy compromise.
Because the Maryland court decided Farrar on duty alone, it avoided the second question before it: whether Farrar presented sufficient evidence that Georgia-Pacific’s products caused her mesothelioma. Causation, a factual question for the jury, might have been a nettlesome issue for the court because Georgia-Pacific argued strenuously that the verdict below rested on questionable grounds.13 Farrar’s grandfather had worked at the federal building for several months, but he also installed asbestos insulation and cement for much of his fifty-year career as a construction worker—insulation and cement that Georgia-Pacific did not manufacture.14 The jury nevertheless found that Georgia-Pacific’s drywall joint compound, rather than any other manufacturer’s product, was the proximate cause of Farrar’s mesothelioma. Foreseeability, even when modified with feasibility, by contrast, was a purely legal question that did not require the Court of Appeals to overturn a jury verdict.
In sum, Farrar represents a significant step to limit asbestos liability. Maryland courts will be less likely to impose a duty on manufacturers with respect to third-party bystanders, especially when the scientific evidence of a product’s harmfulness is less than certain. Even if harm is foreseeable, manufacturers may not be liable if they can show it would not have been possible to issue an effective warning.
*Michael J. Ellis is counsel to the U.S. House Permanent Select Committee on Intelligence. This article represents his views only and not the view of the Committee.
1 See Mark A. Behrens, What’s New in Asbestos Litigation?, 28 Rev. Litig. 500, 528 (2009).
2 Id. at 502–03
3 Id. at 545–46.
5 ___ A.3d ___, No. 102, Sept. Term 2012, 2013 WL 3456573 (Md. Jul. 8, 2013).
6 Farrar, 2013 WL 3456573, at *7; see also Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 447 (6th Cir. 2009) (rejecting take-home liability under Kentucky law); Holdampf v. A.C. & S. (In re N.Y. City Asbestos Litig.), 840 N.E.2d 115, 116 (N.Y. 2005) (same under New York law); Riedel v. ICI Ams., Inc., 968 A.2d 17, 25– 26 (Del. 2009) (same under Delaware law). See generally Restatement (Second) of Torts § 402A cmt. k (1965) (explaining that the seller of an “unavoidably unsafe” product is “not to be held to strict liability for unfortunate consequences attending [its] use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk”).
7 See, e.g., Olivo v. Owens-Ill., Inc., 895 A.2d 1143, 1149 (N.J. 2006); Satterfield v. Breeding Insulation, Inc., 266 S.W.3d 347, 374 (Tenn. 2008).
8 Farrar, 2013 WL 3456573, at *13.
9 Id. at *10.
10 See Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 469 (Md. 1992); Anchor Packing Co. v. Grimshaw, 692 A.2d 5, 35 (Md. Ct. Spec. App. 1997), vacated on other grounds sub nom. Porter Hayden Co. v. Bullinger, 713 A.2d 962 (Md. 1998).
11 Palsgraf v. Long Island R.R., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting).
12 Id. at 101 (Cardozo, J.).
13 See Georgia-Pacific Br., Farrar, 2013 WL 3456573, at *33–34.
14 Id. at *3.