Articles Posted in Products Liability

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The untimely death of loved one can be especially tragic if it was likely preventable.  In a November 2, 2018 case, the surviving daughters and estate of the decedent filed a Maryland wrongful death action against an asbestos product manufacturer after their mother passed away from malignant mesothelioma.  The manufacturer supplied asbestos products to the company that employed the decedent’s husband, who used them for over thirty years in the course of his job.  The asbestos products created dust that covered his clothes at the end of the work day.

In their lawsuit, the plaintiffs alleged that their mother’s malignant mesothelioma was caused by her exposure to asbestos fibers from the defendant’s products when she shook out and washed her husband’s clothing every day.  For the defendant to be held liable for its negligence, the defendant must have had a responsibility, or duty, to the victim to act accordingly.  The plaintiffs in the case claimed that the defendant was negligent in failing to warn the decedent of the harm caused by asbestos exposure.

After the plaintiffs presented their proof at trial, the defendant moved for judgment.  The defendant argued that the plaintiffs had failed to prove that it owed a legal duty to warn household members of the dangers of asbestos exposure.  The trial court agreed and entered judgment in favor of the defendant, and the plaintiffs appealed.

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One of the requirements to establish a negligence claim is a duty on the part of a defendant owed to the victim.  In a recent opinion, the Court of Special Appeals of Maryland analyzed the scope of the duty to warn as it applies to a manufacturer of asbestos-containing products.  In the case, the circuit court granted summary judgment against the plaintiffs, who subsequently appealed the matter.

In this case, the plaintiff’s father worked in powerhouses where the defendant installed insulation and cement that contained asbestos.  The installation of these products created dust-containing asbestos fibers that would accumulate on the father’s clothing.  From 1962 to 1972, the plaintiff lived in a small trailer home with his parents, in close contact with the clothing and the laundry machine that washed the clothing.  In 2014, the plaintiff was diagnosed with mesothelioma.  The plaintiffs brought negligence and strict liability claims against the business that installed the asbestos-containing products, based on a failure to warn.

The defendant relied on a previous case, Georgia Pacific, LLC v. Farrar, in which the Maryland Court of Appeals held that a manufacturer or distributor of an asbestos product did not owe a duty to warn the household member of a worker-bystander present at facilities where the product was installed prior to 1972, since there was no practical way that a warning could have avoided the danger to the household member.  The plaintiffs argued that the Farrar holding did not apply because in the present case, the father had access to commercial laundering facilities that specialized in cleaning industrial clothing, there were changing rooms at his workplace, and he would have heeded a warning of the dangers of household exposure.

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In a recent decision, the Court of Special Appeals of Maryland reviewed an asbestos case involving the death of an employee from mesothelioma. In Stein v. Pfizer, Inc. (Md. Ct. Spec. App. May 31, 2016), the employee worked as a bricklayer, using asbestos-containing cement in completing projects for his employer. After the employee’s death, his family and estate brought negligence and other liability claims against several defendants, including the parent company of the cement product’s manufacturer, alleging that it was an apparent manufacturer and therefore liable for the illness and death of the employee.

In Stein, the estate argued that the defendant held itself out as a manufacturer of the asbestos-containing cement because its trademark was in advertisements and promotional materials for the product. The defendant argued that it was a separate corporation from its subsidiary, that none of the manufacturer’s employees held positions with the defendant, and that only a few of the defendant’s employees sat on the manufacturer’s board of directors. The defendant’s motion for summary judgment was granted by the trial court, which found that, under all of the circumstances, a reasonable person could not conclude from the documents that the defendant was the manufacturer of the product at issue. The plaintiffs appealed the decision.

The Court of Special Appeals examined the history and case law pertaining to the apparent manufacturer doctrine, which holds a non-manufacturer liable for a defective product based on its conduct. The court went on to note that there are three tests for determining whether an entity may be found to be an apparent manufacturer, although Maryland case law does not specify which test is to be applied. Nevertheless, the court concluded that under all three tests, the defendant would not be deemed an apparent manufacturer of the asbestos-containing cement.

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The Maryland Court of Appeals recently published an important opinion that will have consequences for future asbestos litigation and personal injury claims. In a victory for asbestos plaintiffs, the court’s ruling in May v. Air & Liquid Sys. Corp. (Md. Dec. 18, 2015) found that in limited circumstances, a manufacturer has a duty to warn workers of asbestos-containing third-party replacement component parts under theories of negligence and strict liability.

In May, the plaintiff replaced asbestos gaskets and packing while in the United States Navy from 1956 until 1976, which exposed him to airborne asbestos fibers. However, he was not exposed to the asbestos gaskets and packing that the defendants used, but to asbestos-containing replacement parts acquired from third parties. It is undisputed that the instruction manuals did not contain any warnings regarding the danger of inhaling asbestos dust or directions to wear protective gear. In January 2012, the plaintiff learned he was suffering from mesothelioma, a form of cancer that is commonly caused by asbestos exposure. The plaintiff initially filed suit against the defendants, and his wife continued the action upon his death. The defendants moved for summary judgment, contending that they had no duty to warn of the dangers of third-party asbestos-containing replacement parts that they did not manufacture or place into the stream of commerce. The trial court granted the motion in favor of the defendants, and Court of Special Appeals affirmed.

In Maryland, failure to warn claims may be brought under a negligence or strict liability theory. Negligence claims require a showing of a duty of care owed by the defendant to the plaintiff. In determining the existence of a duty, the court considers many factors, including the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant, and others.

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There is increasing evidence that MRI scans could pose safety issues for consumers who use nicotine or other drug delivering patches according to the Food and Drug Administration. Apparently, small metal fragments are in several of the patches and can become heated during the scans which creates significant risks of burns. The FDA has issued several alerts about this potential complication. If you are having an MRI make sure to be very careful about any metal that has been inserted in your body from prior surgery or any foreign material attached to your body for any reason. As helpful as an MRI can be as a diagnostic tool, it can also pose significant safety risks depending on circumstances.

Medical negligence and medical devices
04/14/2009 03:01:45 PM

Several lawsuits have alleged that two medical device companies are intertwined with a doctor named in over 100 medical malpractice case. Continue reading

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Medical helicopters have recently come under scrutiny. There have become an increasing number of medical helicopter accidents in the last several years, some of which are attributable to the competition between the helicopter companies in the business of medical transport. The National Transportation Safety Board is being urged at hearings to place tougher regulations on the helicopter industry. In one eleven month period in 2008 there were 9 fatal medical helicopter crashes that cause 35 deaths.

If a loved one has been involved in a medical helicopter incident involving serious injury or death, please refer them to our office. All of our fees are contingent upon the outcome of the case. If we are not successful on your case, there will be no fee

Pharmaceutical Negligence and Darvon
02/18/2009 03:16:23 PM

Recently a Maryland man settled a wrongful prescription lawsuit against Walmart. Continue reading