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May v. Air & Liquid System Corp.

Court of Appeals of Maryland

December 18, 2015

RUTH BELCHE MAY, Individually and as Executrix of the Estate of Philip Royce May

Argued September 3, 2015.

Page 985

Circuit Court for Baltimore City. Case No.: 24X11000451. Certiorari to the Court of Special Appeals (Circuit Court for Baltimore City.) John M. Glynn JUDGE.

ARGUED BY Jonathan Ruckdeschel (Z. Stephen Horvat. Jacqueline G. Badders, The Ruckdeschel Firm, LLC of Ellicott City; Chris Norris, Jeffrey O'Connell The Nemeroff Law Firm of Dallas, TX) on brief FOR PETITIONER.

ARGUED BY Laurie J. Hepler (Carroll, Burdick & McDonough. LLP of San Francisco, CA)

ARGUED BY F. Ford Loker (Miles & Stockbride, P.C. of Baltimore, MD)

(Thomas M. Goss, Goodell. Devries, Leech & Dann. LLP of Baltimore, MD Joel D. Newport (Moore & Jackson. LLC of Towson, MD) on brief.

Brief of Amicus Curiae Product Liability Advisory Council, Inc., in support of Respondents/Appellees Air & Liquid Systems, Corp., etc., et al. Of Hugh F. Young, Jr., Esquire Product Liability Advisory Council, Inc.; Robert Dale Klein, Esquire Michael S. Rubin, Esquire Wharton, Levin, Ehrmantraut.

Amicus Curiae brief of Maryland Chamber of Commerce, Manufacturers Alliance of Maryland, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers American Tort Reform Association, American Insurance Association, Property Casualty Insurers Association of America, and NFIB Small Business Legal Center in support of Respondents/Appellees. Mark A. Behrens, Esquire Christopher E. Appel, Esquire Shook, Hardy & Bacon L.L.P. FOR RESPONDENTS.

Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ. Opinion by Adkins, J. Battaglia and Watts, JJ., dissent.


Page 986

 Adkins, J.

In this products liability case, the content of a sixty-some year old instruction manual for a heavy piece of naval equipment may be the quintessential smoking gun. We consider failure to warn claims in strict liability and negligence brought by the widow of a naval machinist against manufacturers of heavy-duty pumps. We are asked to determine the interesting question of whether a manufacturer can be liable for failing to warn about the risk of harm from exposure to asbestos-containing replacement parts that it neither manufactured nor placed into the stream of commerce, but which were integral to the operation of its product.

As this case reaches us after a summary judgment in favor of the defendants, " we consider whether the plaintiffs offered sufficient admissible evidence in their opposition to summary judgment to allow a jury to consider their claims of negligence and strict liability against the corporate defendants." Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 739, 625 A.2d 1005, 1012 (1993). We state the facts as alleged by the plaintiffs.


Ruth Belche May (" Petitioner" ) is the widow of a machinist mate, Philip Royce May (" May" ), who served on active duty in the United States Navy (" Navy" ) for 20 years, from 1956 until 1976. Air & Liquid Systems Corp., Warren Pumps LLC, and IMO Industries, Inc. (" Respondents" ) manufactured steam pumps that were sold to the Navy. The Navy used these pumps to move extremely hot and highly pressurized steam through the ship's steam propulsion system. In accordance with the Navy's specifications, the Respondents' pumps contained asbestos gaskets and packing when the Respondents first delivered the pumps to the Navy.[1] Asbestos was used in gaskets and packing as an insulating material because it could withstand the extremely high temperatures and pressures produced by the steam propulsion system.

As a machinist mate, May worked in the engine room of Navy ships. May testified that he would go to the log room and consult the instruction manuals on any

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piece of equipment he serviced.[2] It is undisputed that Respondents' manuals did not contain any warnings regarding the danger of inhaling asbestos dust or directions to wear protective gear.[3] May's duties aboard Navy ships included replacing asbestos gaskets and packing in the pumps of the ships' steam propulsion systems. This work exposed him to airborne asbestos fibers. When removing gaskets, May used tools that generated respirable dust. When installing a new gasket, May would have to shape it into the proper size, which also generated respirable dust. He testified that he had removed " [m]any gaskets, numerous gaskets, hundreds and hundreds and hundreds of gaskets."

May, however, was never exposed to the asbestos gaskets and packing that these Respondents used in their products. He was exposed only after other Navy mechanics, who performed maintenance on Respondents' pumps, replaced Respondents' gaskets and packing with new components acquired from third parties--also containing asbestos.

In January 2012, May learned he was suffering from mesothelioma, a form of cancer that is commonly caused by asbestos exposure.[4] May and Petitioner filed suit in the Circuit Court for Baltimore City (" the Circuit Court" ) in March 2012, naming numerous defendants, including the Respondents.[5] After completion of discovery, the Respondents moved for summary judgment on the ground that, as a matter of law, they had no duty to warn of the dangers of the asbestos-containing replacement parts that they neither manufactured nor placed into the stream of commerce. The Circuit Court granted the motions and the Court of Special Appeals affirmed. May v. Air & Liquid Sys. Corp., 219 Md.App. 424, 426-27, 100 A.3d 1284, 1285 (2014).[6]

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Petitioner appealed and we granted her Petition for Writ of Certiorari.[7] Petitioner presented three questions for review, which we simplify into the following questions:

(1) Can Respondents be liable in negligence for injuries sustained by May?
(2) Can Respondents be strictly liable for injuries sustained by May?

Because we answer yes as to both questions, we shall reverse the judgment of the Court of Special Appeals and remand for further proceedings.


A circuit court may grant a motion for summary judgment if there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(f). " The court is to consider the record in the light most favorable to the non-moving party and consider any reasonable inferences that may be drawn from the undisputed facts against the moving party." Mathews v. Cassidy Turley Md., Inc., 435 Md. 584, 598, 80 A.3d 269, 276 (2013). Because a circuit court's grant of summary judgment hinges on a question of law, not a dispute of fact, an appellate court is to review whether the circuit court was legally correct without according deference to that court's legal conclusions. Id.


In Twombley v. Fuller Brush Co., 221 Md. 476, 491-94, 158 A.2d 110, 118-19 (1960), we first recognized that a duty to warn can form the basis of a products liability action, and further developed the framework for this claim in Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975). In Moran, we articulated the balancing of interests that is involved, and emphasized the role of warnings as a low cost precaution:

To begin with we note that a manufacturer's duty to produce a safe product, with appropriate warnings and instructions when necessary, is no different from the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others. 2 Fowler Harper & Fleming James, The Law of Torts, § 28.3 (1956); William Prosser, The Law of Torts, § 31 (4th ed. 1971). Whether any such unreasonable risk exists in a given situation depends on balancing the probability and seriousness of harm, if care is not exercised, against the costs of taking appropriate precautions. 2 Harper & James, supra, § § 16.9, 28.4; Restatement (Second), Torts § § 291-93, 298 (1965). However, we observe that in cases such as this the cost of giving an adequate warning is usually so minimal, amounting only to the expense of adding some more printing to a label, that this balancing process will almost always weigh in favor of an obligation to warn of latent dangers, if the manufacturer is otherwise required to do so.

Id. at 543-44, 332 A.2d at 15 (emphasis added).

Failure to warn claims may be brought under a negligence or strict liability theory. Robert D. Klein, A Comparison of the Restatement (Third) of Torts: Products Liability and the Maryland Law of Products Liability, 30 U. Balt. L. Rev. 273, 288 (2001) (" In Maryland, failure-to-warn cases have either proceeded as negligence causes of action or . . . as strict liability claims . . . ." ); see Gourdine v. Crews, 405 Md. 722, 743, 955 A.2d 769, 782 (2008) (" Duty, thus, is an essential element of

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both negligence and strict liability causes of action for failure to warn." ).

If the asbestos dust that May inhaled was from the original gaskets and packing in the pumps sold by Respondents, this would be a straightforward negligent and strict liability failure to warn case. The novelty of this case is that Petitioner asserts liability against Respondents even though May was never exposed to asbestos dust from the original gaskets and packing. The original asbestos gaskets and packing that Respondents incorporated into the pumps they sold to the Navy had already been replaced by other gaskets and packing supplied by third parties long before May even began working for the Navy in 1956. This issue has been addressed in only a handful of cases, which we will discuss, infra.

Relying on Ford Motor Co. v. Wood, 119 Md.App. 1, 36 n.7, 703 A.2d 1315, 1331 n.7 (1998), Respondents contend that a manufacturer has a duty to warn only of products that it has placed into the stream of commerce " regardless of whether [its] duty to warn sounds in negligence or strict liability." But their argument depends quite heavily on the assumption that a component part (asbestos gaskets and packing) should be separated from the product sold (the pump). In other words, Respondents see the product sold as the asbestos gaskets and packing, not the pump into which they were incorporated. We will test that assumption as we move through our analysis. We analyze the negligent and strict liability failure to warn issues in turn, even though the analytical basis for each overlaps with the other.[8]

I. Negligent Failure to Warn

Duty to Warn and Patton Factors

A prima facie products liability failure to warn claim grounded in negligence requires a showing of duty of care. See Moran, 273 Md. at 543-44, 332 A.2d at 15 (describing Section 388 of the Restatement (Second) of Torts (1965) " as a general principle in the duty to warn area" ); see also Nissen Corp. v. Miller, 323 Md. 613, 619, 594 A.2d 564, 566-67 (1991) (explaining that " [t]he negligence count of a products liability claim comports with longstanding common law tort principles" ). In determining the existence of a duty of care, we consider the following non-exclusive factors:

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 consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Patton v. U.S. Rugby Football, 381 Md. 627, 637, 851 A.2d 566, 571 (2004) (citing Ashburn v. Anne Arundel Cnty., 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986)).

Here, the crux of Respondents' argument is that they " did not owe [] May a duty of care for the fundamental reason that they did not manufacture or sell the injurious asbestos parts." Respondents take umbrage at the notion that they can

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be liable for injuries from a replacement part that they never touched.

Petitioner argues that the foreseeability of harm to a navy machinist who must replace the asbestos-containing components inside the pump " weighs heavily in favor of imposing a duty" to warn on Respondents. Our well-settled law reflects that the foreseeability of harm factor weighs heavily in favor of imposing a duty. See Remsburg v. Montgomery, 376 Md. 568, 583, 831 A.2d 18, 26 (2003) (foreseeability is " among the most important" factors considered in imposing a duty). Moreover, where a manufacturer's product contains asbestos components and those components must be replaced periodically with new asbestos components, the risk of harm to a machinist removing the old and installing the new is highly foreseeable. Notably, one federal court was " not convinced" that a manufacturer should avoid liability under a failure to warn claim " where it designed its products to be used with asbestos-containing materials and actually incorporated asbestos-containing materials into the products it sold." Quirin v. Lorillard Tobacco Co., 17 F.Supp.3d 760, 771 (N.D.Ill. 2014).[9] The court reasoned that " a jury could conclude that it was not just foreseeable, but inevitable, that the product would subject those working with it to the possible hazards of asbestos exposure" in this situation. Id.

But foreseeability alone is not sufficient to establish a duty. Remsburg, 376 Md. at 583, 831 A.2d at 26 (" While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law," ). Other factors must be considered. Bearing in mind the prominence of foreseeability of injury, we turn to those factors.

(i) The " degree of certainty that the plaintiff suffered the injury" also weighs in favor of imposing a duty here. Patton, 381 Md. at 637, 851 A.2d at 571. For purposes of this appeal, Respondents do not contest that May suffered from and died as a result of mesothelioma.[10]

(ii) The " closeness of the connection between the defendant's conduct and the injury suffered" may prove to be the turning point for determining duty. Id. To be sure, the asbestos components Respondents placed in the pumps had been replaced by other equivalent parts supplied by third parties, and in that sense the Respondents' conduct is somewhat removed from the injury. In our discussion of strict liability, we will address whether the replacement of these components constituted a " substantial change." Here, though, we frame our analysis in the language of negligence, and focus on the sale of the pump and the conduct of Respondents in deciding whether to warn the person(s) who will use and repair the pump.[11]

A federal district court decision, relying on New York state cases, proves to be

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instructive.[12] In Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797, 801-02 (S.D.N.Y. 2011), the court found that the defendant manufacturer had no duty to warn where there was no evidence that the boilers it sold required asbestos insulation to function.[13] The court, however, carefully distinguished circumstances where the connection between the defendant's conduct and the injury was strengthened because asbestos was crucial to operation of the defendant's product:

Where additional circumstances strengthen the connection between the manufacturer's product and the third party's defective one, a duty to warn may arise. For example, the First Department has held that a manufacturer has a duty to warn against the dangers of a third-party product if the third-party product is necessary for the manufacturer's product to function. See Rogers v. Sears, Roebuck and Co., 268 A.D.2d 245, 701 N.Y.S.2d 359, 359-60 (1st Dep't 2000) (manufacturer of barbeque grill could have duty to warn against dangers of third-party-manufactured propane tank where grill could not be used without tank).

Id. at 801 (emphasis added).

Indeed, the court specifically considered the liability of a pump manufacturer who knew that asbestos ...

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