In Bystander Exposure Case, Plaintiff Failed to Demonstrate that Defendant Had a Duty to Warn Court of Special Appeals of Maryland, January 27, 2017

Plaintiff Daniel Hiett developed mesothelioma and alleged bystander exposure from his father’s work. The plaintiff alleged negligence and strict liability claims based on a failure to warn theory. The circuit court granted defendant AC&R Insulation Company, Inc,.’s (AC&R) motion for summary judgment. The plaintiff appealed, arguing that several material facts distinguished their case from Georgia Pacific, LLC v. Farrar, 432 Md. 532 (2013), which held that a manufacturer/distributor of a product containing asbestos did not owe a duty to warn the household member of a worker-bystander who was present at facilities where the asbestos-containing product was installed prior to 1972 and where protective clothing, changing rooms, and safe laundering were not available at the work sites. The court found that the facts in this case did not distinguish it from Farrar to the extent that a duty to warn was warranted, and affirmed the circuit court’s judgment.

The court provided an extensive analysis and summary of Farrar. At the outset the court clarified the scope of Farrar’s ruling regarding foreseeability, in that Farrar did not set out a per se rule that take-home asbestos was not foreseeable to any defendant prior to 1972. The plaintiff argued the facts of this case differed in from those in Farrar enough to establish a duty.

First, with regard to whether AC&R had actual knowledge of bystander risk prior to 1972, the plaintiff cited many of the same studies discussed by the Farrar court. Other articles cited by the plaintiff did not specifically discuss take-home exposure. Second, the plaintiff failed to present facts different from Farrar demonstrating that AC&R could have feasibly implemented a warning prior to 1972 to household members. Third, the plaintiff argued the fact that changing rooms were available (unlike Farrar) was enough to distinguish this case. However, the plaintiff’s father would still arrive home with asbestos-laden clothes to wash. Fourth, although AC&R was on-site (contrary to Georgia Pacific in Farrar), and could have given a verbal warning, it was difficult to understand how AC&R could have controlled the asbestos dust. While the plaintiff’s family could have found alternative work, so could every worker in every case. Fifth, absent facts establishing an actual relationship between the household member and defendant, the court did not think the Farrar court intended to invite “the level of plaintiff-focused micro-analysis” that plaintiff suggested. “Whether or not a distributor/installer owes a duty to a class of individuals with whom the company has no relation, must depend necessarily on the facts that pertain to all the class members. Farrar would be a bagatelle if household members could circumvent its holding by submitting merely an affidavit stating that the intermediary-bystander would have responded to a warning by independently taking the steps necessary to protect his or her household members.” Finally, the court rejected the plaintiff’s claim that household members were a determinate class of plaintiffs, because the same rational could then apply all other individuals with whom the bystanders could come into contact.

Read the full decision here.


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