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$5M asbestos verdict upheld by Court of Special Appeals

The Court of Special Appeals has affirmed a $5 million judgment against Georgia Pacific Corp. in favor of a University of Maryland nursing professor who lost a lung to mesothelioma after inhaling asbestos fibers that stuck to her grandfather’s work clothes in the late 1960s.

Growing up in Silver Spring, Jocelyn Farrar would do her grandparents’ laundry, shaking a haze of fluffy whitish-gray dust out of John Hentgen’s work clothes so it wouldn’t clog the washing machine or rinse onto her navy blue cheerleading uniform. Then, she’d sweep up the dust and put it in the trash, Wednesday’s appellate opinion says.

Farrar was diagnosed with mesothelioma 40 years later, at age 56. She filed suit against 30 defendants and obtained a $20 million judgment in October 2009.

One-fourth of that amount was against Georgia Pacific, which appealed.

Georgia Pacific claimed it should not have to pay Farrar because her grandfather did not actually use its product, a drywall cement or joint compound, while working at the Forrestal Building in Washington in 1968 and 1969. Instead, he was present while other workers applied and sanded the material, creating copious amounts of dust.

On Wednesday, the appellate panel unanimously rejected that argument.

“In sum… the actual harm inflicted on Ms. Farrar fell within a general field of danger which should have been anticipated,” Judge Christopher B. Kehoe wrote for the court.

Edward J. Lilly, a member of Farrar’s legal team at the Law Offices of Peter G. Angelos P.C., said the slight variation in facts did not add up to a legal difference.

“I don’t think we broke new ground here, but it put to bed the idea that you have to be a user to be exposed, when, in fact, you don’t have to be,” Lilly said.

Georgia Pacific’s attorney, David S. Gray of Venable LLP in Baltimore, did not return calls for comment on Wednesday.

On appeal, the company claimed that Hentgen was a “bystander” and that extending liability to a “thrice removed” member of his household would expand its duty to warn “beyond manageable bounds.”

The appellate court disagreed, distinguishing several cases the company relied on. Two involved an employer-employee or doctor-patient relationship rather than a defective product, while another involved a drug maker’s liability to a third party who was injured when an insulin user blacked out while driving.

Here, “there was a direct connection, in the form of actual physical contact between the harmful dust that originated from Georgia-Pacific’s product and Ms. Farrar,” Kehoe wrote.

The court also rejected Georgia Pacific’s claim that there was insufficient evidence that its product was a substantial factor in Farrar’s illness, saying the “regularity, frequency, and proximity” of her exposure supported the jury’s verdict.

Georgia Pacific also claimed the trial judge coerced the jury into awarding damages for pain and suffering — making up more than $18 million of the $20 million total — after its first verdict sheet listed the amount as “undetermined.”

Georgia Pacific wanted the trial judge, Baltimore City Circuit Judge Barry G. Williams, to talk it over with the jury foreperson. Williams declined, saying he did not want to insert himself into the jury’s deliberations.

Williams “took the safer course” — one approved by the Court of Appeals in other cases, Kehoe noted — and instructed them to resume deliberations.

“This was a legitimate exercise of discretion,” the court concluded. “The trial court did not err in the way it instructed the jury to deliberate further on the issue of non-economic damages.”

Farrar, meanwhile, is still an assistant professor at the University of Maryland School of Nursing and is teaching as much as she can given her illness, said Thomas P. Kelly, Lilly’s co-counsel at the Angelos firm.

Although her lawyers were optimistic about her prognosis after her right lung was removed prior to trial, recent testing found mesothelioma was still present and active in her body, Kelly said.

Farrar is about to undergo treatment at the National Institutes of Health in Bethesda, Kelly said.

“She’s having the consequences that you would expect,” he said. “She’s going to be part of a clinical trial that will hopefully give her some relief.”

Daily Record reporters Kristi Tousignant and Steve Lash contributed to this article.

WHAT THE COURT HELD

Case:

Georgia-Pacific, LLC v. Jocelyn Anne Farrar, CSA No. 751, Sept. Term 2010. Opinion by Kehoe, J. Filed Sept. 26, 2012. Reported.

Issue:

Did the lower court err in finding a manufacturer had a duty to warn the members of a bystander’s household about the dangers of its asbestos-containing product?

Holding:

No, affirmed. The actual harm inflicted on the plaintiff fell within a general field of danger which the manufacturer should have anticipated.

Counsel:

David S. Gray for appellant; Edward J. Lilly and Thomas P. Kelly for appellee.

RecordFax #12-0926-00 (43pages)