Georgia Pacific v. Farrar went up to the Maryland Court of Appeals on two issues. The first was whether in 1968 Georgia Pacific owed a duty to the granddaughter of a mechanic whose clothes were contaminated at work with asbestos due to the mixing and sanding of its product by nearby drywall workers (she was exposed to the dust when she washed his clothes and decades later she developed mesothelioma). It would require the court to decide what was generally known and knowable almost half a century ago and then what future a reasonable manufacturer of drywall compound would have foreseen given that knowledge. The second issue was whether such an exposure could be the legal cause of her injury. It would require the court to decide whether some risks are just too small. Alas for trial by jury and clarity, the court chose to decide the first issue and to avoid the second.

Things looked more hopeful early in the opinion when the court noted with approval its prior holding that duty is "the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others." When the level of risk determines the existence of a duty the perfect case for drawing lines based on public policy consideration (ultimately the "core" of duty determination) is one like Farrar. Thanks to a vast amount of literature on the subjects the asbestos exposure (or dose) from a given activity can be reliably estimated and the resulting risk of mesothelioma can then in turn be reliably calculated. To get to the jury the plaintiff needs merely to demonstrate that her exposure was like others that have been measured and that such exposure (or dose) poses a risk that's "unreasonable". Of course that means a court would have to answer a question like "As a matter of public policy, will we subject to tort claims those who create a risk of death of less than 1 in 1,000,000?" Perhaps because the impact of such a decision, either way, would be too obvious the court chose instead to rummage about in its bag of duty-determining fudge factors in order to come at the question from a far less obvious angle.

In looking to see whether Georgia Pacific had a duty to warn the court began by re-recounting a "non-exclusive list of factors for balancing the policy considerations inherent in the determination of whether a duty exists". Those factors are: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered the injury, (3) the closeness of the connection between the defendant's conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, (7) the availability, cost and prevalence of insurance for the risk involved. To this it added (8) the nature of the harm likely to result from a failure to exercise due care and (9) the relationship between the parties. The last two don't actually go into the scales for the duty-determination weighing exercise but serve instead as "guideposts in that weighing process", which makes them sound more like thumbs but it's not our metaphor so we're not sure.

Anyway, it's a grab bag of dubious value. Take foreseeability. Do we wind up deep in the weeds of e.g. what warrants true knowledge (today and 45 years ago)? Or isn't this better left as a fact issue for the jury? And if it is, what to do about hindsight bias? Then there's "the degree of certainty that the plaintiff suffered the injury." Given the nonexistence of time machines why would our current degree of belief about a causal claim modify our view of how a reasonable man should have acted in the distant past? The "closeness" factor sounds like a fusion of both sides of the Palsgraf debate, the "moral blame" factor suspiciously value-laden, the burden/consequences factor positively Hand-ian, and the available, widespread and affordable insurance factor simply redistributionist. It's not a list of the aspects of a coherent theory of duty in tort law but rather a catalog of distinct and often competing theories. But that's neither here nor there as the court needed only the first factor, foreseeability, to decide the case.

Echoing the recent U.S. Supreme Court case of Mutual Pharmaceutical Co. v. Bartlett the Maryland court started its discussion by reaffirming the centrality of conduct, and thus duty, to strict liability jurisprudence. The court reasoned that requiring a product manufacturer to know more than the "generally recognized and prevailing scientific and technical knowledge available at the time of manufacture" would make it "absolutely labile - an insurer of the product's safety - and that is not the law." So duty survived strict liability and 402A; and if anything it was elevated. This was done by imposing a duty to know what was knowable.

But how do you decide what is known, particularly in the bio-medical sciences where some days black swans seem to outnumber white ones? Well, reasonable inference apparently isn't enough. Writing that "the danger of exposure 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 court here was referring to OSHA's 1972 adoption of rules designed to prevent "take-home" exposures - four years after Ms. Farrar's exposure.

So is the idea here that OSHA is first to know what is knowable in these matters? Or is it that a thing is not really known until OSHA proclaims it so? Fortunately at that very moment the opinion spots a previously unseen guidepost and suddenly swerves to avoid this doubtful course. It turns out that (9) has a subpart - (9)(a) feasibility. "To impose a duty that either cannot feasibly be implemented or, even if implemented, would have no practical effect would be poor public policy indeed." Turning then to the facts at hand the court concluded "[t]he 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 that danger."

Foreseeability is thus modulated by feasibility so that in this case the lack of regulations pertaining to things like employer provided locker rooms, showers, protective clothing and safe laundering of work clothes made it impossible for Ms. Farrar's grandfather not to bring home dust. Furthermore, no means existed at the time that would have allowed the dissemination of whatever warning information plaintiff thought ought to have been included with the product to every person who might come into contact with a person who had come into contact with some who had worked with asbestos. (Note: doesn't this sound like a causation argument?). There being no point in a duty to do something pointless Georgia Pacific prevailed.

It was in our view the right result for the wrong reason. The risk of death posed by the exposures described, intermittent and light and had by a bystander's bystander is just a tiny fraction of the risk of death posed by bathtubs or showers. Wouldn't it be better to simply decide that there's some level where at which a risk becomes too small, too remote, to warrant the imposition of a duty to act? Wouldn't it be better to leave it to the jury to decide in those cases where risks are not merely de minimis whether as the voice of their community the risk was acceptable or too high? Draw the boundaries beyond which reasonable minds cannot differ and public policy cannot allow and leave what's inside to the jury and the advocates. They'll use the same fudge factors (save insurance) as 1 - 9(a) when weighing the arguments about breach and, if there's anything to The Wisdom of Crowds, more closely approximate justice in the bargain.