Tuesday, September 10, 2013

Court of Appeals Holds There is No Duty to Warn of Second Hand Exposure to Asbestos Prior to Adoption of OSHA Regulations in 1972

In Georgia-Pacific Corp. v. Farrar, CA No. 102 Sept. Term 2012, the Court of Appeals held that asbestos companies cannot be held liable for illnesses suffered by family members who were not directly exposed to asbestos but who came into contact with asbestos fibers as the result of others bringing the fibers into the home prior to the adoption of OSHA Regulations in 1972.  

Jocelyn Farrar, who, in 2008, developed mesothlioma, a cancer linked to inhaling asbestos fibers, brought this action.  Ms. Farrar lived in her grandparents’ home, where she was exposed to asbestos fibers in 1968 and 1969 while laundering her grandfather’s, John Hentgen’s, clothing. Mr. Hentgen worked in a building where Georgia-Pacific drywall cement was being applied.  The drywall, which at the time contained asbestos, was applied and sanded producing dust.  Although Mr. Hentgen did not work directly with the drywall, he worked in the same vicinity insulating pipes, and his work clothes would become saturated with the asbestos-containing material from the drywall.  When Mr. Hentgen brought his work clothes home Ms. Farrar would shake out the asbestos fibers prior to laundering the clothing to prevent the dust from clogging the washing machine. 

Following her diagnosis with mesothlioma, Ms. Farrar filed suit in Baltimore City Circuit Court against more than 30 defendants, including Georgia-Pacific.  A jury awarded Ms. Farrar $20 million, including $5 million against Georgia Pacific.  The Court of Special Appeals subsequently affirmed the award against Georgia-Pacific.  Georgia-Pacific appealed arguing that there was no relationship between it and Ms. Farrar, that Ms. Farrar had never used the product, nor was she ever an employee of Georgia-Pacific or a bystander, and, therefore Georgia-Pacific had no duty to identify and warn Ms. Farrar. 

The Court of Appeals reviewed relevant case law in assessing what the duty owed to individuals like Ms. Farrar whose exposure to asbestos occurred in the home and not as an employee or bystander as well as various articles regarding research that had been conducted at the time on exposure to asbestos.  The Court of Appeals noted that it was not until June 1972 that OSHA adopted regulations addressing the problem of tracking asbestos dust on clothing brought inside the home, and, as such, none of those regulations were in force at the time of Ms. Farrar’s exposure.  Further, the Court of Appeals noted that even if in 1968-69 Georgia-Pacific should have foreseen that individuals like Ms. Farrar could be harmed, “there was no practical way that any warning given by it to any of the suggested intermediaries would or could have avoided that danger.” 

Thus the Court of Appeals found that the Court of Special Appeals erred in its determination that Georgia-Pacific owed a duty to Ms. Farrar in 1968-69, and therefore, the judgment of the Circuit Court and Court of Special Appeals was reversed.  

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