On September 16, 2014, the U.S. District Court for the District of Maryland, Northern Division granted Union Carbide’s Motion for Summary Judgment with respect to plaintiff’s failure to warn claim in Melvin Sherin v. John Crane-Houdaille, Inc., et al, a take-home asbestos exposure case. Although the Court found that Union Carbide provided warnings during the time period of Mrs. Sherin’s alleged exposure and that it was feasible for Union Carbide to provide a more detailed warning on its bags of asbestos fibers, the Court held that there was no evidence that an improved warning would have prevented the take-home asbestos exposure of Mrs. Sherin. Union Carbide was therefore granted summary judgment with respect to Plaintiffs’ the failure to warn claim. The ruling is significant given that the Court paid close attention to a practical consideration often overlooked by Courts – i.e., the effectiveness of even the most detailed warning on preventing a claimant’s injury in a second-hand exposure case. Given the number of take-home asbestos exposure cases that continue to proliferate nationwide, the Sherin ruling is an important step in the right direction for the defense of these claims.
In Sherin, plaintiffs alleged that Mrs. Sherin was exposed to asbestos from 1969 until 1970 when she visited the construction site of her new home, and from 1968 until 1976 while laundering her husband’s clothing. As a result of the exposures, the plaintiffs allege that she contracted mesothelioma and died. Plaintiffs asserted that Mrs. Sherin inhaled asbestos fibers supplied by Union Carbide to the various manufacturers of joint compound that were used at the new home built for the Sherins and on jobsites that her husband visited as a carpet salesman. It was undisputed that Union Carbide included warnings on its bags of asbestos fibers beginning in 1968, and that it revised the warnings in 1972 to comply with OSHA regulations. Plaintiffs asserted that the warnings that Union Carbide provided were inadequate based on the company’s knowledge of the hazards of asbestos at the time of Sherin’s exposure.
After finding for plaintiffs on several issues in its summary judgment analysis, the Court turned its attention to Union Carbide’s arguments that it did not owe Mrs. Sherin a duty to warn regarding the dangers of asbestos. Union Carbide put forth two arguments: (1) that Mrs. Sherin’s exposure to asbestos was not foreseeable and therefore no duty to warn existed and (2) there was no feasible way for the company to warn Mrs. Sherin of the potential hazards of asbestos and therefore no duty was owed to her.
With respect to the foreseeability argument, Union Carbide argued that the scientific literature that existed prior to Mrs. Sherin’s exposure to Union Carbide’s asbestos fibers did not suggest that take-home exposures to asbestos were a potential health hazard. In addressing the argument, the Court found that a jury could reasonably infer that Union Carbide knew or had reason to know of the dangers of household exposures to asbestos based on a variety of internal Union Carbide documents dating back to 1947 that discussed threshold limits for asbestos exposure, the development of mesothelioma, and a 1965 case report of a dock worker’s wife who died of mesothelioma after asbestos exposure from washing her husband’s clothes. The Court therefore held that it was foreseeable to Union Carbide that people similarly situated to Mrs. Sherin could develop an asbestos-related disease from Union Carbide’s asbestos fibers.
Before imposing any duty to warn, though, “the Court must satisfy itself that Union Carbide could have feasibly and effectively implemented [their] duty [to warn].” Based on Union Carbide’s knowledge of the hazards of asbestos and internal documents showing that Union Carbide felt that the wording of its warning in 1968 was “weak”, the Court found that a jury could reasonably infer that it was feasible for Union Carbide to provide more adequate warnings regarding the health hazards associated with asbestos dust. However, the Court held that “…Sherin must also provide evidence that improved warnings would have effectively prevented Mrs. Sherin’s take-home exposure to asbestos dust.” The Court found that there was no evidence that improved warnings by Union Carbide would have altered Mrs. Sherin’s take-home exposure and granted summary judgment in favor of Union Carbide for plaintiffs’ failure to warn claim. In a footnote, the Court seemed to place some weight on the fact that Mrs. Sherin was far removed from Union Carbide in the chain of commerce, as the company sold asbestos fibers to manufacturers, who sold the finished product to suppliers, who sold the product to contractors, who then used the products in Mr. Sherin’s presence, which caused him to bring home the asbestos fibers to which Mrs. Sherin was exposed.
The Sherin decision is a step in the right direction on the take-home exposure duty to warn issue, for which there is no clear-cut majority nationwide. The Maryland federal court was thoughtful in its analysis based on the facts of the case and considered a practical consideration (the effectiveness of additional warnings) that is too often ignored.