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Second-hand asbestos verdict voided

Top court: No duty to family members before OSHA warning in 1972

Asbestos companies cannot be held liable for the illnesses suffered by family members of people who brought the carcinogenic fibers home with them before federal safety regulations were issued in 1972, Maryland’s top court held Monday.

The decision overturns a $5 million verdict to a woman who was exposed while doing her grandfather’s laundry in the late 1960s and suffered mesothelioma 40 years later.

The Court of Appeals said Georgia-Pacific Corp. had no duty to warn household members of asbestos’ dangers in the 1960s, because the breadth of the hazard was not sufficiently known until U.S. Occupational Safety and Health Administration issued regulations in 1972.

The manufacturer’s duties “must be based on facts that were known or should have been known to the defendant at the time the warning should have been given, not what was learned later,” Judge Alan M. Wilner wrote for the high court.

“Although the danger to asbestos in the workplace was well-recognized at least by the 1930s, the danger from exposure in the household to asbestos dust brought home by workers, though in hindsight perhaps fairly inferable, was not made publicly clear until much later.”

The high court’s decision was a defeat for Jocelyn Farrar, who now holds a doctoral degree in nursing practice and is a professor of nursing at the University of Maryland.

Farrar’s grandfather, John Hentgen, worked at the Forrestal Building in Washington while construction workers applied Georgia-Pacific drywall cement in 1968 and 1969.

Hentgen himself did not work with the drywall — a factor the court deemed significant — but his work clothes were so caked with the asbestos-containing material that his granddaughter had to shake them out before laundering or the dust would clog the washing machine, according to trial testimony.

Farrar was diagnosed with malignant mesothelioma, a rare cancer linked to inhaling asbestos fibers, in 2008. She ultimately lost a lung to the disease.

“While we have sympathy for Dr. Farrar, we believe the evidence in this case established that her disease was not caused by exposure to asbestos from any product manufactured by Georgia-Pacific,” the Atlanta-based company said in a statement Monday.

It said the high court’s ruling should serve as a model for similar cases in other states.

Neither Farrar nor her attorney, Edward J. Lilly, returned telephone messages seeking comment Monday. Lilly is with the Law Offices of Peter G. Angelos P.C. in Baltimore.

A Baltimore City Circuit Court jury awarded Farrar $20 million — including $5 million against Georgia-Pacific — in October 2009. Last September, the intermediate Court of Special Appeals affirmed the award against Georgia-Pacific.

The company then sought review by the high court, arguing that it had no connection to Hentgen and that it owed no duty to warn his household of the dangers of its product.

The Court of Appeals agreed, adding that even if Georgia-Pacific knew of the dangers, it could not have “feasibly” implemented a warning to bystanders in the late 1960s.

“[I]n an era before home computers and social media, it is not at all clear how the hundreds of thousands of manufacturers and suppliers of products containing asbestos could have directly warned household members who had no connection to the product, the manufacturers or supplier of the product, the worker’s employer, or the owner of the premises where the asbestos product was being used, not to have contact with dusty work clothes of household members who were occupationally exposed to asbestos,” Wilner wrote.

“The simple fact is that, even if Georgia-Pacific should have foreseen back in 1968-69 that individuals such as Ms. Farrar were in a zone of danger, there was no practical way that any warning given by it to any of the suggested intermediaries would or could have avoided the danger,” he added.

Wilner, a retired judge, was specially assigned to the panel that heard the case. The seven-member court ruled unanimously for Georgia-Pacific, though former Chief Judge Robert M. Bell joined in the judgment only.

Bell, who reached the mandatory retirement age of 70 on Saturday, was an active member of the court when the case was argued May 7 and when the judges deliberated on their decision and was, therefore, constitutionally permitted to participate in the decision.

WHAT THE COURT HELD
Case: Georgia-Pacific Corp. v. Farrar, CA No. 102 Sept. Term 2012. Reported. Opinion by Wilner, J. (retired, specially assigned). Argued May 7, 2013. Filed July 8, 2013.
Issue: Did the company have a duty to warn family members of a person exposed to asbestos in the 1960s that they were at risk of mesothelioma?
Holding: No; the danger posed by household, second-hand exposure to asbestos was unknown in the 1960s.
Counsel: James L. Shea for petitioner; Edward J. Lilly for respondent.
RecordFax # 13-0708-20 (24 pages).