Case Information
*1 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2670 September Term, 2012 PHILIP ROYCE MAY, ET AL. v.
AIR & LIQUID SYSTEMS CORPORATION ETC. ET AL.
Woodward, Kehoe,
Arthur,
JJ.
Opinion by Arthur, J.
Filed: October 3, 2014
*2
In
Ford Motor Co. v. Wood
,
(1998), this Court held that an automobile manufacturer could not be held liable in tort for failing to warn of the latent dangers of asbestos-containing replacement parts that it neither manufactured nor placed into the stream of commerce. In this case, we reaffirm that decision and, in accordance with a number of out-of-state cases that have followed in its wake, hold that the manufacturers of steam pumps in Navy ships cannot be held liable for failing to warn of the dangers of asbestos-containing replacement parts (gaskets and packing) that they neither manufactured nor placed into the stream of commerce.
Q UESTION P RESENTED
Appellants present two questions for our review, which we rephrase and combine below into one question:
Did the trial court err in granting summary judgment as to whether defendants had a duty to warn of the hazards associated with replacement parts for the products they sold?
For the reasons that follow, we answer no and affirm the judgment of the circuit court.
F ACTUAL AND P ROCEDURAL H ISTORY
Plaintiff Philip Royce May served on active duty in the United States Navy for 20 years, from 1956 until 1976. For almost all of those 20 years, Mr. May worked as a machinist mate in one of the several engine rooms of a naval vessel. As a machinist mate, Mr. May’s duties included replacing asbestos gaskets and “packing” in the pumps that pumped superheated steam through the ship’s steam-propulsion system.
Mr. May’s work exposed him to airborne asbestos fibers. When removing gaskets, Mr. May would have to use a hand-held scraper, a wire brush, or a pneumatic brush, which generated respirable dust. When fabricating a new gasket for installation, Mr. May would have to shape it into the proper size, which also generated respirable dust. When removing packing, Mr. May would have to get within two inches of a valve to blow out the last pieces of packing, which generated respirable dust as well.
Defendants Air & Liquid Systems Corp., Warren Pumps LLC, and IMO Industries, Inc., manufactured the steam pumps whose gaskets and packing Mr. May would replace. In accordance with the Navy’s specifications, the defendants’ pumps contained asbestos gaskets and packing when the defendants first delivered them to the Navy.
During Mr. May’s career, he served on a total of seven ships, all of which were built and launched at least five years before his service on them began. Indeed, six of the *4 seven were built and launched during World War II, more than a decade before Mr. May joined the Navy. As Mr. May testified in his deposition, he never served on the maiden voyage of any navy vessel.
Because Mr. May never served on a maiden voyage, he was never the first mechanic to perform maintenance on any of those pumps and to replace the original gaskets or packing in them. In fact, the pumps in question had been serviced on many occasions before he worked on any of them. Thus, Mr. May was not exposed to any asbestos-containing products that had been made or sold by any of the defendant- manufacturers. Instead, he was exposed to asbestos-containing replacement parts that were made and sold by entities other than the defendant-manufacturers.
The defendant-manufacturers neither required nor recommended that any particular replacement part be used. In other words, the defendants neither required nor recommended the use of their own products as replacement parts, nor did they require or recommend the use of asbestos-containing replacement parts. In fact, when Mr. May needed a replacement part, he obtained it by referring to a Navy stock number. He did not request or obtain a specific part that was manufactured by a specific manufacturer.
Finally, the defendant-manufacturers did not instruct or advise Mr. May about how to make and change gaskets (in, for example, their product manuals). While Mr. May consulted “instruction books from the manufacturer” (it was not clear whose), he did so *5 only to learn how much clearance was required and how thick the gasket should be. [3]
In January 2012, Mr. May learned that he was suffering from malignant pleural mesothelioma, a rare form of cancer that is commonly caused by asbestos exposure. On March 2, 2012, he and his wife filed suit in the Circuit Court for Baltimore City, naming numerous defendants, including the manufacturers of the steam pumps on the ships on which he served. [4]
At the close of discovery, those manufacturers moved for summary judgment on the ground that, as a matter of Maryland 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. After the denial of their motions for reconsideration, the Mays noted a timely appeal.
S TANDARD OF R EVIEW
For motions for summary judgment, the applicable legal standards are well known: under Rule 2-501(f), “a court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter *6 of law.”
“[T]he summary judgment standard is akin to that of a directed verdict,
i.e.
,
whether a fair-minded jury could return a verdict for the plaintiff on the evidence
presented.”
Seaboard Sur. Co. v. Richard F. Kline, Inc
.,
In reviewing the grant of a motion for summary judgment, appellate courts focus
on whether the circuit court’s grant of the motion was legally correct.
Sierra Club
, 216
Md. App. at 330 (citing
Laing v. Volkswagen of Am., Inc.
,
D ISCUSSION
A. Wood Is Dispositive of the Mays’ Claims
This case is governed by the decision
Ford Motor Co. v. Wood
,
In Wood , Mrs. Wood claimed that her late husband had contracted mesothelioma and died because he had been exposed to asbestos fibers while working in a garage where workers repaired and replaced the brakes and clutches on older-model Ford trucks. Id. at 10, 30. Although she had prevailed at trial, this Court held that the circuit court erred in denying Ford’s motion for judgment, because Mrs. Wood “did not present sufficient evidence that Mr. Wood was exposed to Ford’s brake and clutch products with the requisite degree of frequency, proximity or regularity.” Id. at 30. In reaching its decision, the Wood Court reasoned that the trucks “did not contain their original brake and clutch parts” during the period when Mr. Wood worked at the garage ( id. ) and that Mrs. Wood had insufficient evidence of the extent to which the garage had used Ford products as the replacement parts. Id. at 30-33. For that reason, this Court concluded that “the evidence simply was too thin to demonstrate that Mr. Wood frequently and regularly worked in *8 proximity to mechanics applying Ford brake and clutch products.” Id. at 33.
As an alternative ground to uphold the verdict, Mrs. Wood argued that Ford had a duty to warn of the dangers involved in replacing the asbestos-containing brakes and clutches on its vehicles, regardless of who manufactured the replacement parts. Id . This Court rejected that argument, first, because Mrs. Wood had not tried the case on that theory (and thus because Ford had not had the opportunity to defend the case on that theory). Id. Nonetheless, this Court went on to state that even if Mrs. Wood had proceeded on her alternative theory, Ford would have no liability for replacement or component parts that it neither manufactured nor placed into the stream of commerce. Id. at 34.
Surveying the state of the law in 1998, this Court observed 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.
Id.
(citing
Baughman v. Gen. Motors Corp.
,
On the other hand, this Court observed that other courts had refused to hold
manufacturers liable for component parts that they did not market or place into the stream
of commerce. Instead, those courts had imposed liability only on the entities in the chain
of distribution for the defective part (
Wood
,
evidence that any of the defendant-manufacturers manufactured, marketed, sold, or otherwise placed into the stream of commerce any of the asbestos-containing gaskets or packing to which Mr. May was exposed. It was undisputed that Mr. May was exposed to asbestos only because of his exposure to replacement parts that the manufacturer- defendants neither made nor placed into the stream of commerce. The circuit court, therefore, correctly directed the entry of summary judgment in favor of those defendants *10 and against the Mays.
B. The Controlling Statements in Wood Are Not Dicta
The Mays, who did not cite Wood until page 22 of their 29-page brief, dismiss Wood ’s lengthy discussion of liability for defective replacement or component parts, terming it mere dicta. We disagree.
At the outset of the opinion, when the
Wood
Court set out the questions presented
in the appeal, it remarked that Mrs. Wood’s arguments “raise[d] the novel question of
whether Ford can be held liable for failure to warn of the latent dangers of asbestos-
containing brake and clutch products that it neither manufactured nor placed into the
stream of commerce.”
Id.
at 9. This Court proceeded to answer that question, which
Mrs. Wood herself had put forth as an alternate ground to uphold the verdict in her favor.
This Court’s answer was, therefore, an alternative holding, and not mere dicta.
See State
v. Bd. of Educ. of Montgomery County
,
Rejected the Mays’ Position
In any event, in the 16 years since this Court decided
Wood
, numerous courts
*11
around the country have either followed or have applied the same line of reasoning
to hold that a manufacturer generally has no liability for defective replacement or
component parts that it did not manufacture or place in the stream of commerce.
O’Neil
v. Crane Co.
,
Notably, a number of courts reached that conclusion in cases that present the
precise issue in this case – whether a naval pump-manufacturer is liable for damages
caused by asbestos-containing replacement parts (such as gaskets, packing, or insulation)
that it neither manufactured nor placed in the stream of commerce. Almost uniformly, the
courts have held that the manufacturer has no such liability.
O’Neil
,
In
Braaten
,
On whatever theory, the justification for the strict liability has been said to be that the seller , by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods ; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained ; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products .
Restatement (Second) of Torts, supra , cmt. c (emphasis added); accord Faddish , 881 F. Supp. 2d at 1369 (“[t]he rationale underpinning the general rule of strict liability is that it logically and fairly places the loss caused by a defective product on those who create the risk and reap the profit by placing such a product in the stream of commerce, with the expectation that those entities have the greatest incentive and resources to control and spread the risk of harm posed by the product”).
In this case, the defendant-manufacturers “did not manufacture, sell, or otherwise
*13
distribute the replacement packing and gaskets” to which Mr. May was exposed.
Braaten
,
*14 Accordingly, we agree with the Washington, California, and federal courts that have held that, under the principles underpinning strict products liability, the defendant- manufacturers had no duty to warn of the hazards associated with asbestos-containing replacement parts that they neither manufactured nor introduced into the stream of commerce. Even if had never been decided, the circuit court would not have erred in directing the entry of summary judgment against the Mays. [9] D. The Manufacturers Had No Duty to Warn Notwithstanding the Alleged
Foreseeability of Harm
In advocating for a contrary conclusion, the Mays argue that the defendant-
manufacturers had a duty to warn because it was “foreseeable” that those parts would be
incorporated into the defendants’ pumps. Under Maryland law, however, foreseeability
“‘alone does not suffice to establish a duty.’”
See, e.g.
,
Gourdine v. Crews
,
To the contrary, even when a person’s conduct could foreseeably result in harm to
others, the Court of Appeals has repeatedly refused to recognize a duty in tort if it would
expose a person to liability to “an indeterminate class of people.”
See, e.g.
,
Gourdine
,
In 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.
See, e.g.,
Remsburg v. Montgomery
,
In this regard, we note that, in cases identical to this one, other courts have 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 into the defendants’ pumps.
O’Neil
,
In the face of that considerable body of law that rejects their argument on
foreseeability, the Mays cite only one case concerning a pump manufacturer’s duty to
warn of the hazards of defective replacement parts that it did not make or sell
– Berkowitz
v. A.C. & S, Inc.
,
*18 E. The Mays’ Miscellaneous Arguments Are Unavailing
Although their position is foreclosed both by and by the out-of-state cases that have followed in its wake, the Mays make a series of miscellaneous arguments. We reject each of them.
First, citing
Owens-Illinois, Inc. v. Zenobia
,
Second, in their reply brief, the Mays (improperly) raised a new argument based on Md. Code (1973, 2011 Repl. Vol.), § 5-115 of the Courts and Judicial Proceedings *19 Article, a statute that generally provides that if limitations or laches would bar a products liability claim in the jurisdiction in which the claim arose, the claim would be barred in Maryland as well unless the plaintiff is a Maryland resident. [13] Although § 5-115 has little obvious relevance to this case, the Mays find it to be significant because of its definitions of a “manufacturer” (“a designer, assembler, fabricator, constructor, compounder, producer, or processor of a product or its component parts ”) and a “product” (“a [14] tangible article, including attachments, accessories, and component parts , and accompanying labels, warnings , instructions, and packaging”). [15] The Mays, however, do not explain why a manufacturer includes a “designer, assembler, fabricator, constructor, compounder, producer, or processor of . . . component parts” that the alleged manufacturer did not itself design, assemble, fabricate, construct, compound, produce, or process. Nor do they explain why a “product” includes “component parts” or “warnings” other than those provided by the initial “manufacturer.” Their attenuated argument comes nowhere close to establishing that under Maryland law a “manufacturer” has a duty in tort *20 to warn of the latent dangers associated with replacement parts that it neither manufactured nor placed into the stream of commerce.
Finally, in another new argument that they improperly raised for the first time in their reply brief, the Mays appear to assert that the steam pumps themselves were defective because they operated at high temperatures, which caused the gaskets and packing to degrade, which then required sailors (such as Mr. May) to remove the gaskets and packing in a process that exposed them to respirable asbestos fibers. The Supreme Court of California cogently rebutted a similar argument in O’Neil :
[A] high operating temperature was unavoidable given the intended use of
these pumps and valves. Because transferring heat was integral to the
products’ functioning, it cannot be labeled a “defect.”
O’Neil
,
We agree with the California court. Accordingly, we reject the Mays’ final argument for reversal.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANTS .
Notes
[1] The original questions are: 1) Whether the circuit court committed reversible error in granting defendants’ motions for summary judgment on the issue of a legal duty to warn in consideration of outstanding preliminary, factual determinations. 2) Whether the circuit court committed reversible error in holding that defendant pump manufacturers had no duty to warn of the hazards associated with asbestos parts they designed, integrated, and required for use in their equipment.
[2] Gaskets are mechanical seals that prevent the leakage of gas or fluids from valves. Packing is inserted between a valve stem and a valve cover (or bonnet) to maintain a seal.
[3] Mr. May takes liberties with the record, asserting, for example, that the defendant- manufacturers’ manuals instructed him to remove used gaskets in an unsafe manner and “mandate[d]” and “required” the use of asbestos-containing replacement parts. Suffice it to say that the record does not support his assertions.
[4] Other defendants included the manufacturers of the asbestos-containing replacement parts that Mr. May replaced and installed. The Mays have resolved their claims against those defendants.
[5] In
John Crane, Inc. v. Scribner
,
[6] The Mays argue that even if forecloses their ability to assert a strict liability claim based on a failure to warn, it does not foreclose a negligent failure to warn claim. They are incorrect. See id. at 36 n.7 (“regardless of whether Ford’s duty to warn sounds in negligence or strict liability, it has a duty to warn only by virtue of its manufacture or sale of unreasonably dangerous products”).
[7] Although these cases talk in terms of the policies underlying strict liability,
Maryland courts have recognized that “negligence concepts and those of strict liability
have ‘morphed together,’ . . . in failure to warn cases.”
Gourdine v. Crews
,
[8] In
Macias v. Saberhagen Holdings, Inc.
,
[8] (...continued) replacement parts that the manufacturers neither made nor sold; rather they concern liability for defects in the manufacturers’ own products when they were being used as they were intended to be used.
[9] Had the Mays come forward with evidence that the manufacturers “specified or
required” the use of asbestos-containing replacement parts (in their manuals, for
example), they might have had a stronger argument for liability.
See O’Neil
, 53 Cal. 4th
at 350 n.6;
but see Wood
,
[10] In support of their arguments concerning foreseeability, the Mays cite
Moran v.
Fabergé, Inc.
,
[11] In a case that was decided after briefing was completed in this appeal, the
Appellate Division of the Superior Court of New Jersey held that under New Jersey law a
pump manufacturer had a duty to warn about the hazards of asbestos-containing
replacement parts because, the court said, “it was reasonably foreseeable, at the time the
pumps were placed in the marketplace, that gaskets and packing would be replaced
regularly with gaskets and packing that contained asbestos.”
Hughes v. A.W. Chesterton
Co.
,
[12] The argument is improper because it does not respond to the points and issues in the manufacturers’ briefs ( Federal Land Bank of Baltimore, Inc. v. Esham , 43 Md. App. 446, 459 (1979)), and because the Mays do not appear to have raised it in the circuit court. See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court”).
[13] Section 5-115(b) specifically provides that, “If a cause of action against a manufacturer or seller of a product for personal injury allegedly caused by a defective product arose in a foreign jurisdiction and by the laws of that jurisdiction the cause of action may not be maintained by reason of a lapse of time, an action may not be maintained in this State, except in favor of one who is a resident of this State.”
[14] Md. Code (1973, 2011 Repl. Vol.), § 5-115(a)(3) of the Courts and Judicial Proceedings Article (emphasis added).
[15] Md. Code (1973, 2011 Repl. Vol.), § 5-115(a)(3) of the Courts and Judicial Proceedings Article (emphasis added).