Product Liability -- 2013

Georgia-Pacific, LLC v. Farrar   (Maryland Court of Appeals)

Evidentiary requirements and "any exposure" theory of causation in asbestos suit

This is another case that illustrates a major battleground in asbestos litigation today. The issue involves attempts by plaintiffs to hold manufacturers liable for increasingly trivial exposures to hazardous substances. The plaintiff in this case relied on the “any exposure” theory, i.e., that any occupational exposure to asbestos, no matter how slight, is sufficient to be a substantial contributing factor to the plaintiff’s disease. That theory was developed in the context of the first wave of asbestos litigation where the dose exposure was often high, but the present case is part of a new wave where there is only a low dose exposure. This case has the potential to go beyond the issues in Dixon v. Ford Motor Co. (Md.), where the any-exposure theory itself is being challenged. The court in Farrar has the opportunity to elucidate the type of evidence that experts must present to show causation. Plaintiff’s expert relied on the presence of “dust” without analyzing the dose of asbestos and whether the dose was sufficient to cause or be a substantial factor in the plaintiff’s illness.

In this case, the Plaintiff alleged that she was exposed to asbestos from a Georgia-Pacific product in her grandfather’s clothing that she washed over the course of a few years in the 1960’s. Plaintiff’s grandfather worked primarily with insulation and was on a few occasions close to drywall work where drywall joint filler was used. The grandfather never handled the filler, sanded down the filling following the installation of the drywall, or cleaned up afterwards. The insulation contained significantly more harmful types of asbestos fibers than the drywall asbestos fibers, which are less toxic. The plaintiff developed mesothelioma and sued the manufacturer of the drywall joint filler after the insulation manufacturer went bankrupt.

The NAM filed an amicus brief on February 27, 2013. The trial court accepted expert testimony that any occupational exposure above ambient level was sufficient for causation. Moreover, the expert testimony did not go any further to base the causation on any factors beyond mere exposure to some “dust” and did not produce any scientifically competent dose assessment. The NAM comments explained developments where the highest courts in Texas and Pennsylvania have limited the any-exposure theory by imposing added elements of dose and potency, requiring that asbestos fibers must be released in an amount sufficient to cause the plaintiff’s disease. The NAM urged the Maryland court to expand the type of evidence required to sufficiently show that any asbestos exposure actually caused the plaintiff’s illness.

The Maryland Court of Appeals, the highest court in the state, ruled 7/8/2013 that the company had no duty to warn the plaintiff. It found that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. Household members had no relationship with the manufacturer, were not in contact with the product itself, and were never on the work site where the product was. The court did not have to reach the second issue regarding whether the evidence showed that asbestos was a substantial contributing cause of the plaintiff's illness.

Related Documents:
NAM brief  (February 27, 2013)