Georgia-Pacific Corp. v. Pransky (2002)

Our plain-English summary of Georgia-Pacific Corp. v. Pransky (Maryland Court of Appeals, June 11, 2002).

Lisa Pransky and her husband sued Georgia-Pacific, which made and distributed an asbestos-containing joint compound. Lisa developed mesothelioma and died at age 34 shortly after trial. She said she was exposed as a child when her father renovated the family basement in the early 1970s, taping and sanding the compound and applying it to the ceiling. She did not use the compound but was often in the basement during the work. She was also exposed to dust from the ceiling compound for about ten more years. A Montgomery County jury awarded $9,188,000, and the Court of Special Appeals affirmed. The Court of Appeals of Maryland considered whether the evidence showed her exposure was a substantial factor in causing her disease, and whether the statutory cap on non-economic damages applied. It held that the test for bystanders from an earlier case applies to non-occupational exposure too, and that the evidence was enough for the jury. Because her last exposure was before July 1, 1986, the cap did not apply. The judgment was affirmed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Maryland Court of Appeals
• Decided: June 11, 2002
• Citation: 800 A.2d 722
• Docket: No. 107, Sept. Term, 2001
• Stage: Appeal from judgment after trial
• State: Maryland

Outcome. The Court of Appeals of Maryland affirmed the Court of Special Appeals' judgment upholding the $9,188,000 jury verdict for Lisa Pransky and her husband against Georgia-Pacific, finding the causation evidence sufficient and the non-economic damages cap inapplicable.

What the court held. The Balbos frequency, proximity and regularity test for substantial-factor causation applies to any bystander, whether the exposure is occupational or non-occupational. A cause of action for an asbestos-related disease arises before July 1, 1986 if the last exposure was undisputedly before that date, so the non-economic damages cap does not apply.

Issues decided: Causation, Compensatory Damages, Product Identification.

Why this case is relevant

In this decision, Maryland's highest court held that the Balbos "frequency, proximity and regularity" test for substantial-factor causation applies to any bystander, whether the asbestos exposure happened at work or, as here, at home. It rejected the argument that the test was limited to workplace exposure or to circumstantial evidence, reasoning that the need for reliable proof of causation is the same in either setting. On the damages cap, the court applied a rule it had just announced in another case: where the last exposure undisputedly came before July 1, 1986, the statutory cap on non-economic damages does not apply.

Later courts have mostly cited it as a statement of the Balbos bystander test. The Maryland Court of Special Appeals has cited it for that test and for applying Balbos to a bystander. Federal trial courts in Maryland have cited it for the points that medical causation evidence must be considered and that a plaintiff must have been in or very near the product. The Maryland Court of Appeals cited it in a case involving exposures both before and after July 1, 1986. A federal court in Delaware noted that plaintiffs cited it only in passing and that it did not apply Mississippi law.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Lisa J. Pransky (family member): pleural mesothelioma; died

Who	Work	Where	When	Products
Lisa J. Pransky	child of a heating and air conditioning contractor; bystander in the home (construction); worked near others using it	Family home basement, Montgomery County, Maryland	1972-1983	joint compound, chrysotile, Georgia-Pacific asbestos-containing joint compound

The defendants

• Georgia-Pacific Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Crane, Inc. v. Scribner (Maryland Court of Appeals, 2002). The Court of Appeals of Maryland affirmed the Court of Special Appeals and the Circuit Court judgments for the Scribners against John Crane and Garlock, holding the non-economic damages cap did not apply to the survival action.
• Eagle-Picher Industries, Inc. v. Balbos (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory judgments for the Balbos and Knuckles plaintiffs against Eagle-Picher and the other defendants, except that it reversed the Knuckles judgment against Porter Hayden for lack of proof, and it ordered a new trial on punitive damages against Owens-Illinois and Eagle-Picher.
• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• Owens Corning v. Walatka (Maryland Court of Special Appeals, 1999). The court reversed the trial court's refusal to apply Maryland's noneconomic damages cap to the Walatka verdicts, ruling for Owens Corning and Owens-Illinois, and remanded to apply the cap to all claims; it affirmed the Adams judgments against Owens Corning, ruling for the Adams plaintiffs.

Later decisions citing this one

9 later decisions in our library cite this one:

• Owens-Illinois, Inc. v. Cook (Maryland Court of Appeals, 2005). The Court of Appeals of Maryland affirmed the judgment for John and Shirley Gianotti against Owens-Illinois, rejecting its challenges to the release, the noneconomic damages cap, the loss of consortium claim and the verdict reduction.
• Georgia-Pacific v. Farrar (Maryland Court of Special Appeals, 2012). The Court of Special Appeals affirmed the jury verdict and judgment of about $4.995 million for Jocelyn Farrar against Georgia-Pacific, rejecting Georgia-Pacific's challenges on duty to warn, causation evidence, and the jury instruction.
• Owens-Illinois, Inc. v. Cook (Maryland Court of Special Appeals, 2005). The Court of Appeals of Maryland affirmed the judgment for the Gianottis against Owens-Illinois, holding that the damages cap did not apply, the loss of consortium claim could proceed, the release reserved the mesothelioma claim, and the verdict was properly reduced for the Babcock & Wilcox settlement.
• Owens-Illinois, Inc. v. Hunter (Maryland Court of Special Appeals, 2005). The Court of Special Appeals affirmed the Baltimore City judgment: it rejected Owens-Illinois's challenges to the evidence and to the consortium award, and rejected Ms. Hunter's cross-appeal challenging the remittitur and the wrongful death damages cap.
• Rockman v. Union Carbide Corp. (U.S. District Court, District of Maryland, 2017). The court excluded the plaintiffs' experts' specific causation and "each and every exposure" opinions and granted summary judgment to Union Carbide and Georgia-Pacific on the Rockmans' remaining strict liability, negligence and loss of consortium claims.
• Arbogast v. AW Chesterton Co. (U.S. District Court, District of Maryland, 2016). The court excluded the plaintiffs' expert's opinion about asbestos exposure from Micarta and granted summary judgment to CBS Corporation (Westinghouse) against Charles and Barbara Arbogast on all claims.
• Arbogast v. AW Chesterton Co. (U.S. District Court, District of Maryland, 2016). The court granted summary judgment to Eaton (Cutler Hammer), Foster Wheeler, Schneider Electric (Square D), Union Carbide and Crane. It denied summary judgment to MCIC and denied Georgia-Pacific's motion against the strict liability claim.
• Malone v. Air & Liquid Systems Corporation (U.S. District Court, District of Delaware, 2016). The magistrate judge recommended granting summary judgment to Cummins, CBS (as successor to Westinghouse) and Foster Wheeler against Charles and Elizabeth Malone, while finding the learned intermediary and government contractor defenses did not independently warrant judgment.
• Sherin v. John Crane-Houdaille, Inc. (U.S. District Court, District of Maryland, 2014). The court denied Union Carbide's motion in limine and its summary judgment motion on product identification, exposure and causation, but granted summary judgment to Union Carbide on the duty-to-warn claim and on the unopposed warranty, fraud, conspiracy, aiding and abetting and punitive damages claims.

Amounts in the opinion

• $9,188,000 (total)
• $4,800,000 (other)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

800 A.2d 722 (2002)

369 Md. 360

GEORGIA-PACIFIC CORPORATION

v.

Lisa J. PRANSKY et al.

No. 107, Sept. Term, 2001.

June 11, 2002.

Reconsideration Denied July 17, 2002.

Court of Appeals of Maryland.

[*723] John Parker Sweeney (T. Sky Woodward, E. Benjamin Alliker and Angela N. Whittaker of Miles & Stockbridge, P.C., Baltimore; R. Thomas Radcliffe, Jr., Church, Loker, Radcliffe & Silver, P.A., Baltimore; Dan K. Webb, Winston & Strawn, Chicago, IL), all on brief, for petitioner.

Sara Sadler Turnipseed, Charles E. Watkins, III, of Nelson Millins Riley & Scarborough, L.L.P., Atlanta, GA, on brief for petitioner.

John E. Griffith, Jr., Piper, Marbury, Rudnick & Wolfe LLP, Baltimore, Brief of amicus curiae Maryland Defense Council filed on behalf of Petitioner.

Melvin J. Sykes, Baltimore; Stephen W. Wilson, Michael B. Leh of Greitzer & Locks, Philadelphia, PA; Stephen J. Nolan, Nolan, Plumhoff & Williams, Chtd., Towson, all on brief, for respondents.

Argued Before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

WILNER, Judge.

After concluding that Lisa Pransky contracted mesothelioma from her exposure to an asbestos-containing joint compound manufactured and distributed by petitioner, Georgia-Pacific Corporation, a jury in the Circuit Court for Montgomery County awarded Ms. Pransky and her husband damages of $9,188,000. Of that sum, $4,800,000 was for Ms. Pransky's non-economic damages. The Court of Special Appeals affirmed the judgment entered upon that verdict.

We granted certiorari to consider whether (1) under the test laid down in Eagle-Picher Indus. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992) (Balbos), sufficient evidence was presented to show that Ms. Pransky's exposure to petitioner's product was a substantial factor in causing her mesothelioma, and (2) if so, sufficient evidence was presented to show that her cause of action arose prior to July 1, 1986—the effective date of a statutory cap on the amount of non-economic damages that may be awarded in a personal injury action. We shall affirm the judgment of the Court of Special Appeals. Substantial Factor Evidence

That Ms. Pransky had mesothelioma, from which she died at the age of 34 shortly after trial, is not in dispute. She attributed the disease to her exposure 25 years earlier to the asbestos-containing joint compound material, manufactured and distributed by petitioner, that her father used in the renovation of the basement of their home. Shortly after the family moved into the home in 1972, Lisa's father, a heating and air conditioning contractor, converted the unfinished basement into a recreation room. With occasional help from a carpenter, he did the work himself, in the evenings and on weekends. It involved putting up studs along the walls and ceiling, nailing drywall to the studs, taping the seams, applying petitioner's compound to the tape, and sanding the compound to get a smooth seam. He also [*724] applied the compound to the ceiling to create a stippled effect.

Lisa did not use the compound itself—she was only eight years old when the work was done. She was frequently in the basement while her father was working, however, either watching him or helping her mother with the laundry. Evidence was presented that the sanding created a lot of dust, that Lisa was exposed to that dust when she was in the basement, and that

the dust was picked up by the ventilation system and spread throughout the house. Following completion of the work, Lisa played in the basement and was further exposed to dust occasionally emanating from the compound on the ceiling for about another 10 years, until she left the home to go to college.

These basic facts were not in substantial dispute. The issue was whether they sufficed to show that Lisa's mesothelioma was caused by that exposure. Petitioner produced a great deal of medical evidence to the effect that Lisa's mesothelioma was not asbestos-related at all and that, if it was, it emanated from the unusually high ambient levels of asbestos in her neighborhood, rather than from her limited exposure to petitioner's joint compound. That evidence, if credited by the jury, would have been more than sufficient to justify a verdict in favor of petitioner. The jury apparently was not persuaded by that evidence, however, for it found otherwise. On appeal, we must view the evidence, and the inferences reasonably deducible from the evidence, in a light most favorable to the Pranskys, looking only to whether, viewed in that manner, it was legally sufficient to create a triable issue. See Houston v. Safeway Stores, Inc., 346 Md. 503, 521, 697 A.2d 851, 859 (1997) (observing that the standard for appellate review is whether there is "any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, ..."); Impala Platinum Ltd. v. Impala Sales, Inc., 283 Md. 296, 328, 389 A.2d 887, 906 (1978) (same); Owens-Corning v. Walatka, 125 Md.App. 313, 342, 725 A.2d 579, 593 (1999) (same).

Because Lisa did not handle the joint compound herself, she is to be regarded as a "bystander." We dealt with the issue of causation, with respect to a bystander, in Balbos. The plaintiffs there, Balbos and Knuckles, both worked in a shipyard during World War II. Although they did not handle asbestos products directly, they each worked in the engine rooms of ships —large but confined areas—where they were exposed to "great quantities" of Eagle-Picher's asbestos products. Balbos, supra, 326 Md. at 213, 604 A.2d at 461. We concluded that the evidence of that exposure sufficed to establish causation with respect to Eagle-Picher.

One of the plaintiffs, Knuckles, also asserted liability against another defendant, Porter-Hayden, based on evidence that it sold asbestos products that were used in other parts of the shipyard. Knuckles sought to connect his mesothelioma to the Porter-Hayden product under the "fiber drift theory," which assumes that asbestos fibers may become airborne or re-entrained and thus be carried from their source to other areas, and that, as a result, anyone present in the facility where the product exists is entitled to have the jury determine causation with respect to that product. Id. at 216-17, 604 A.2d at 463. We rejected that theory as so attenuating causation-in-fact as to be "inconsistent with the requirement of Maryland law that an actor's negligence be a substantial factor in causing the injury." Id. at 217, 604 A.2d at 463. The exposure must be more direct; the plaintiff must have been in or very near the presence of the asbestos-containing product and able to inhale fibers [*725] released from that product. In that regard, we stated:

"Whether the exposure of any given bystander to any particular supplier's product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant's product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the work place and of the relationship between the activities of the direct users of the product and the bystander plaintiff. [citation omitted]. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product. [citations omitted]. `In addition, trial courts must consider the evidence presented as to medical causation of the plaintiff's particular disease.' Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 605, 613 (1987)."

Id. at 210-11, 604 A.2d at 460.

The Pranskys, though insisting that the evidence they presented satisfies the Balbos test of frequent, proximate, and regular exposure, contend that the Balbos test has never been applied and should not apply in a non-occupational setting. They treat the Balbos test as one designed to test the reliability of circumstantial evidence of exposure, in the absence of direct evidence and contend that it has no relevance when exposure is established by direct evidence. We do not agree. The quoted statement from Balbos came in the context of our discussion of Balbos's and Knuckles's exposures to the Eagle-Picher product in the engine rooms, and the evidence of those exposures was direct, not circumstantial. We introduced that statement with the observation that "[n]either [plaintiff] in the cases before us worked directly with asbestos products; rather, they were bystanders," and we then went on to articulate a test for determining causation with respect to bystanders. Id. at 210, 604 A.2d at 460. The distinction was not between direct and circumstantial evidence, or between occupational and

non-occupational exposure, but between those who actually handled the product and those who did not but were in the immediate vicinity. Nor do we see any legitimate basis for not applying the Balbos standards in any bystander situation. The need for reliable proof of causation is the same, whether the alleged exposure is in an occupational or non-occupational setting.

The jury in this case was instructed in full compliance with the Balbos standards. The court made clear that the burden was on the plaintiffs to show that exposure to petitioner's product was a substantial causative factor in bringing about Lisa's injuries and that, in determining that question, the jury was to consider "[t]he nature of the product, the frequency of its use, the proximity in distance and time of the plaintiff to the use of the product and the regularity of the exposure of that plaintiff to ... the use of a product." The issue is only the sufficiency of the evidence to sustain liability under that standard; there is no indication that the jury was mis-instructed on the law.

We have already recounted the fact that Lisa was present in the basement during the several-month period that her father was working on the project and was exposed to dust emanating from his sanding of the compound, and that she continued to be exposed to the compound spread on the ceiling during the next ten years that she lived in the home. Testimony was [*726] presented that the compound contained about three percent chrysotile asbestos, that the sanding of that product releases significant amounts of asbestos fibers—more than the permissible exposure limit established by OSHA that was in effect in 1973—and that the dust not only remains in the air for a time but gets back into the air when swept or cleaned off of surfaces upon which it settles. Medical evidence was presented that (1) chrysotile asbestos is a carcinogen that causes mesothelioma, (2) mesothelioma may occur as the result of a brief, low-level, indirect exposure to asbestos, (3) the disease is much rarer in women than in men because fewer women were occupationally exposed to asbestos, (4) due to its latency, mesothelioma may constitute a major asbestos-related cancer hazard when the exposure begins in childhood (as it did with Lisa), and (5) the latency period for pleural mesothelioma, from first exposure to onset of symptoms, is 20 years or longer, which is consistent with Lisa's having been exposed in 1973 and developing symptoms in 1997. There was also evidence, intended, no doubt, to rebut inferences that petitioner sought to draw from the fact that there was no evidence of asbestosis or pleural plaques in Lisa's lungs, that it is not necessary for asbestos-related mesothelioma to be accompanied by that disease or that condition.

This evidence, if credited by the jury, was clearly sufficient to establish that Lisa's exposure to the dust emanating from petitioner's asbestos-containing joint compound was a substantial factor in causing her mesothelioma and thus presented a triable issue for the jury to resolve.

Application of the Cap on Non-Economic Damages

The second question presented by petitioner is whether Ms. Pransky presented sufficient evidence to establish that her cause of action arose prior to July 1, 1986, the effective date of the statutory limitation on the amount of non-economic damages that can be awarded in a personal injury action. See Maryland Code, § 11-108(b)(1) of the Courts and Judicial Proceedings Article. We just dealt with this issue in John Crane, Inc. v. Scribner, 369 Md. 369, 800 A.2d 727 (2002). We held in that case that, in an action for personal injury founded upon the plaintiff's exposure to asbestos, where the injury sued upon and established is a cancer or other disease that develops over time, the cause of action arises, for purposes of § 11-108(b)(1), when the plaintiff first inhales asbestos fibers that caused cellular changes leading to the disease. We held further that, in making that determination, the court may look initially to when the plaintiff's last exposure to asbestos occurred and that, if that last exposure undisputedly was prior to July 1, 1986, it must conclude, as a matter of law, that the limitation in § 11-108(b)(1) does not apply. That clearly was the situation here. Ms. Pransky left the home, and thus the exposure, prior to July, 1986. The trial court's conclusion that the statutory cap did not apply was correct. JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

Sources

• The opinion on Google Scholar
• Maryland asbestos laws
• Maryland asbestos exposure sites