Maryland’s Court of Special Appeals recently reconsidered the duty to warn of asbestos-containing replacement parts that the defendants did not manufacture or place in the stream of commerce in Philip Royce May v. Air & Liquid Systems Corp., et al, No. 2670 (Md. App. Oct. 3, 2014). The Maydecision reaffirmed the decision in Ford Motor Co. v. Wood, 119 Md. App. 1, cert. denied, 394 Md. 494 (1998), where the Court of Special Appeals aligned with other courts that have found that it is “not only equitable” to limit liability to those in the chain of distribution, but that doing so “preserves a bright line in the law of strict liability” that, generally, a person is liable only for harm caused by products that it manufactures or otherwise introduces into the stream of commerce.
Plaintiff Philip Royce May served as a machinist’s mate on Navy ships for nearly 20 years between 1956 and 1976. Among his duties was replacing gaskets and “packing” in the pumps that circulated superheated steam throughout a vessel’s steam propulsion system. The asbestos-containing replacement parts and packing, when machined and shaped for use, produced airborne respirable dust. The defendants – Air & Liquid Systems Corp., Warren Pumps LLC, and IMO Industries, Inc. – manufactured the steam pumps on which Mr. May would replace the gaskets and packing. It is undisputed that Mr. May was exposed to asbestos only because of his exposure to replacement parts that the defendants neither made nor placed in the stream of commerce. Mr. May was diagnosed with malignant pleural mesothelioma in January 2012.
Mr. May and his wife filed suit against the defendant-manufacturers in the Circuit Court of Maryland for Baltimore City. At the close of discovery, the defendants moved for summary judgment on the ground that, as a matter of Maryland law, they had no duty to warn of the dangers of asbestos-containing replacement parts that they neither manufactured nor placed into the stream of commerce. The circuit court granted the defendants’ motions, and the plaintiffs noted a timely appeal.
The Mays argued that the defendant-manufacturers had a duty to warn because it was “foreseeable” that the replacement parts would be incorporated into the defendants’ pumps. The Court of Special Appeals relied expressly on its own opinion in the Wood case, in which the widow of an automotive garage employee claimed that her late husband contracted mesothelioma and died because he had been exposed to asbestos fibers when garage workers repaired and replaced the brakes and clutches on older-model Ford trucks. There, the appellate court held that the trial court erred in denying the automobile manufacturer’s motion for summary judgment, because the plaintiff “did not present sufficient evidence that [the plaintiff’s decedent] was exposed to Ford’s brake and clutch products with the requisite degree of frequency, proximity or regularity” given that the trucks “did not contain their original brake and clutch parts” during the period when the decedent worked at the garage and that Mrs. Wood had insufficient evidence of the extent to which the garage had used Ford products as the replacement parts.
In Wood, Ford “had no duty to warn of the hazards associated with asbestos-containing replacement brakes and clutches that others had made or sold, however foreseeable it may have been that mechanics and others might be exposed to asbestos fibers from those replacement parts.” Rather, the court acknowledged that a manufacturer could be held liable for defective component parts manufactured by another person only if the manufacturer incorporated the defective part into its finished product. This concept of “assembler’s liability” is justified, this court said, because the assembler “derives an economic benefit from the sale of the product that incorporates the component; the assembler has the ability to test and inspect the component when it is within its possession; and, by including the component in its finished product, the assembler represents to the consumer and ultimate user that the component is safe.”
The May court called Wood “controlling authority” for this case, and found that “therefore, the defendant-manufacturers in this case likewise had no duty to warn of the hazards associated with replacement parts that they neither manufactured nor introduced into the stream of commerce.” The court determined that the Mays’ foreseeability argument was not compelling, noting that under Maryland law, foreseeability alone does not suffice to establish a duty. Rather, even when a person’s conduct could foreseeably result in harm to others, the Court of Appeals (the state’s court of last resort) has repeatedly refused to recognize a duty in tort if it would expose a person to liability to an indeterminate class of people. Indeed, theMay court determined that “[i]n this case, the foreseeability of harm is neither dispositive nor even material to the existence of a duty, which is typically a question of law for the court.”
The Court of Appeals also compared this case with “identical” ones in other jurisdictions where “other courts flatly rejected the argument that a pump manufacturer had a duty to warn of the hazards of asbestos-containing replacement parts because it was foreseeable that those parts would be incorporated in the defendants’ pumps.”
The holding of Maryland’s Court of Special Appeals in May that, despite the alleged foreseeability of harm from defective replacement parts that are made or manufactured by others, an entity generally is liable only for harm caused by products that it manufactured or otherwise introduced into the stream of commerce, reaffirms the principle previously set forth in Wood by the same court.
Notably, in its opinion, the Court of Special Appeals also cites to naval pump manufacturer asbestos-related opinions from California, Washington, Florida, Pennsylvania, New York and New Jersey, as well as federal court rulings under maritime law, in support of its decision.