Top court hears two cases on liability for second-hand asbestos exposure

ANNAPOLIS — Maryland‘s top court heard arguments Tuesday on whether companies can be held liable for the asbestos-related illnesses of family members of people who were exposed to the hazardous material and brought it home on their clothes.

The Court of Appeals considered the corporate-liability issue in two cases — one originally filed by a woman’s survivors after her death, allegedly due to second-hand exposure; the other, filed by the granddaughter of a construction worker who lost a lung to mesothelioma.

Their lawyers told the Court of Appeals that the women came into the “zone of danger” while washing their loved ones’ asbestos-laden clothes in the late 1960s and early 1970s.

But lawyers for Ford Motor Co. and Georgia-Pacific Corp. said the companies cannot be held liable because the evidence linking their products to the illnesses was too weak and the legal relationship between the businesses and the women was too distant.

Judge Alan M. Wilner, a retired judge sitting by special assignment, wondered aloud whether a company owes a legal duty to protect its workers’ families from the risk of asbestos exposure — and, if so, what should employees do with their asbestos-laden work clothes.

“Peel them off and go home naked?” Wilner asked.

The two cases present similar issues, and the jury in each case found for the plaintiffs and awarded significant damages. However, the intermediate Court of Special Appeals reached two different results last year.

Joan Dixon died of mesothelioma, allegedly due to asbestos her husband carried home with him from working on asbestos-containing brakes manufactured by Ford Motor Co. The Dixons were awarded $3 million in damages from a Baltimore City Circuit Court jury in May 2010, but the award was overturned last June by the Court of Special Appeals.

The intermediate court threw out the testimony of the Dixons’ epidemiology expert that Joan Dixon’s 13 years of exposure to her husband’s work clothes was a “substantial contributing factor” in her death. The theory was unsupported by science, the Court of Special Appeals held.

Pressing the family’s appeal, attorney Jonathan Ruckdeschel told the high court that epidemiologist Laura Welch’s testimony was based on sound science.

“You don’t need an epidemiological study of every brand of cigarette” to know they cause lung cancer, said Ruckdeschel, of The Ruckdeschel Law Firm LLC in Ellicott City. “This is not a low-dose case.”

But Ford’s attorney, J. Tracy Walker IV, said Welch presented at best only anecdotal evidence linking Joan Dixon’s death to the exposure.

Walker also urged the high court to abandon what he called the long-held legal view that any exposure to asbestos presents serious health risks and makes manufacturers of asbestos-containing products presumptively liable.

“A lore built up around asbestos,” said Walker, of McGuireWoods LLP in Richmond, Va. “Its time has passed.”

‘Bystander of a bystander’

In the second case, Jocelyn Farrar, now a professor of nursing at the University of Maryland, lost a lung to mesothelioma 40 years after inhaling asbestos fibers while washing the clothes of her grandfather. John Hentgen worked at the Forrestal Building in Washington while construction workers applied Georgia-Pacific drywall cement in 1968 and 1969, according to trial testimony.

A jury in Baltimore City Circuit Court awarded Farrar $5 million in damages in October 2009. Last September, the Court of Special Appeals affirmed.

On Tuesday, Georgia-Pacific’s appellate attorney told the high court that holding the company liable to a person who laundered the clothes of someone exposed to asbestos would “expand the outer limits of tort liability.”

Farrar was “a bystander of a bystander,” said the lawyer, James L. Shea, of Venable LLP in Baltimore.

Hentgen, the grandfather, did not work with the asbestos-containing sealant but merely near it, Shea added. The granddaughter was even further removed from the worksite, as she was not in the building, he said.

“There was no relationship” between Georgia-Pacific and Farrar, Shea added.

But Edward J. Lilly, Farrar’s attorney, said companies such as Georgia-Pacific have a duty to warn people of the health risks of washing asbestos-laden clothes.

Wilner appeared unconvinced as he asked Lilly just how companies would warn people who neither work for them nor use their products.

“Do you put it [the warning] on a Super Bowl ad?” Wilner asked.

“We do not excuse a guilty party because it’s too hard,” responded Lilly, of the Law Offices of Peter G. Angelos PC in Baltimore. “We can’t let somebody say, ‘It’s too hard to do.’ There is a duty to warn.”

The Court of Appeals did not indicate when it will decide the two cases, Dixon v. Ford Motor Co., No. 82, September Term 2012, and Georgia-Pacific Corp. v. Farrar, No. 102, September Term 2012.