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Full Opinion
OWENS-ILLINOIS, INC. ET AL.
v.
WILLIAM ZENOBIA, SR. ET AL.
Court of Appeals of Maryland.
Gardner M. Duvall (Harry S. Johnson, Patrick C. Smith, John G. Billmyre, Whiteford, Taylor & Preston, on brief, C. Robert Loskot (John G. Sakellaris, Bernstein, Sakellaris, & Ward, on brief), Baltimore, John J. Nagle, III, Margaret E. Swain, Barbara M. Gaughan, Power & Mosner, P.A., on brief), Towson, for petitioners/cross respondents.
Thomas V. Monahan, Jr., Toni-Jean Lisa, Goodell, DeVries, Leech & Gray of Baltimore, amicus for Maryland Ass'n of Defense Trial Counsel.
Gary I. Strausberg, Janet & Strausberg, Paul B. Bekman, Israelson, Salisbury, Clements & Bekman, Baltimore, amicus for Maryland Trial Lawyers' Ass'n.
Robert Dale Klein, Wharton, Levin & Ehrmantraut, Annapolis, Malcolm E. Wheeler, Parcel, Mauro, Hultin & Spaanstra, PC, Denver, Colo., amicus for Product Liability Advisory Council, Inc., Motor Vehicle Manufacturers Ass'n of the United States, Inc., Chamber of Commerce of the U.S., National Ass'n of Manufacturers of the U.S., Business Roundtable, and Chemical Manufacturers Ass'n.
Edward F. Houff, Carolyn J. Moses, Church & Houff, PA, Baltimore, amicus for Center for Claims Resolution.
James R. Eyler, John P. Sweeney, Gregory L. Lockwood Miles & Stockbridge, Baltimore, amicus for Owens-Corning Fiberglas Corp.
Clifford C. Cuniff, Baltimore, for respondents/cross petitioners.
Peter G. Angelos, Patricia J. Kasputys, Timothy J. Hogan, Law Offices of Peter G. Angelos, Baltimore, amicus for Law Offices of Peter G. Angelos.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
ELDRIDGE, Judge.
We issued a writ of certiorari in these cases to consider several important questions relating to a strict products liability cause of action based on failure to warn of the dangerousness of the products, and to reconsider some of the principles governing awards of punitive damages in tort cases.
The plaintiffs Louis L. Dickerson and William L. Zenobia filed in the Circuit Court for Baltimore City separate complaints seeking damages for injuries resulting from exposure to asbestos, and the complaints were consolidated for purposes of trial and appeal. Both plaintiffs have pleural and parenchymal asbestosis. At the time of the trial, the plaintiffs abandoned all theories of liability except for strict liability under 402A of the Restatement (Second) of Torts.
The plaintiff Dickerson sought damages from Owens-Illinois, Inc., Eagle-Picher Industries, Inc., and Celotex Corp., all of which manufactured products containing asbestos, and from MCIC, Inc., and Porter Hayden Company, both of which supplied and installed products containing asbestos. Dickerson claimed that he was exposed to asbestos from 1953 to 1963 when he worked as a laborer both at the shipyard and at the steel mill owned and operated by the Bethlehem Steel Corporation at Sparrows Point, Maryland.
The plaintiff Zenobia sought damages from the manufacturer Owens-Illinois, Inc., and the suppliers/installers MCIC, Inc., Porter Hayden Co. and Anchor Packing Co.[1] Zenobia alleged that he was exposed to asbestos while working as a painter for four months at the Bethlehem Steel Sparrows Point shipyard in 1948, while working as a pipe fitter for eighteen months at the Maryland Shipbuilding and Drydock shipyard in 1951 and 1952, and while employed as a cleanup man at the Carling Brewery for three months in 1968.
The jury awarded compensatory damages to the plaintiff Dickerson in the amount of $1,300,000 against all five defendants. In addition, the jury initially determined that punitive damages were warranted against certain defendants, and, subsequently the jury awarded punitive damages against Owens-Illinois in the amount of $235,000, against Porter Hayden in the amount of $2,500, and against Celotex in the amount of $372,000. The jury awarded to the plaintiff Zenobia compensatory damages in the amount of $1,200,000 against all four defendants; subsequently it awarded punitive damages against Owens-Illinois in the amount of $235,000 and against Porter Hayden in the amount of $2,500.
Pursuant to a stipulation, each of the defendants was deemed to have cross-claimed for contribution or indemnity against all other defendants prior to trial. Anchor Packing Co., a supplier and installer of products containing asbestos, sought in the Zenobia case indemnity against Raymark, Inc., a manufacturer, asserting that Raymark was Anchor's primary source of asbestos containing products. Raymark, Inc., had settled with both plaintiffs before trial. The cross-claims were tried separately, after the verdicts for the plaintiffs. At the time of the cross-claim trial, Raymark, Inc., was under the exclusive jurisdiction of the bankruptcy court. The circuit court granted the defendants' cross-claims for contribution against all settling defendants including Raymark, Inc. The compensatory damages verdicts were reduced proportionally in light of the releases between the plaintiffs and the settling defendants. In addition, the trial court held that Anchor Packing Co. was entitled to indemnity against Raymark, Inc., in the Zenobia case. Thus, because of the plaintiff Zenobia's settlement with and release of Raymark, the trial court struck the jury's award against Anchor Packing.
The compensatory and punitive damages awards were appealed to the Court of Special Appeals by Owens-Illinois, Inc., MCIC, Inc., Porter Hayden, Co., Eagle-Picher Industries, Inc., and Anchor Packing, Co.[2] The plaintiffs appealed from the cross-claim determinations. The Court of Special Appeals affirmed all aspects of the awards for compensatory damages and affirmed the awards in the cross-claim trial. The award of punitive damages against Owens-Illinois was affirmed, and the award of punitive damages against Porter Hayden was reversed. See MCIC, Inc. v. Zenobia, 86 Md. App. 456, 587 A.2d 531 (1991).
Thereafter petitions and cross-petitions for a writ of certiorari were filed in this Court. The only manufacturer which filed a certiorari petition was Owens-Illinois. Owens-Illinois argued that it was entitled to a new trial because certain depositions were improperly admitted into evidence, and because the trial court gave an erroneous jury instruction that Owens-Illinois had a duty to warn of the hazards of asbestos after it had stopped manufacturing products containing asbestos. Owens-Illinois also challenged the award of punitive damages. MCIC, Inc., and Porter Hayden Co., which supplied and installed products containing asbestos, also filed certiorari petitions which raised a single issue, namely whether certain deposition testimony was erroneously admitted against them.
The plaintiffs filed a conditional cross-petition for a writ of certiorari, asking that the Court address the issues raised in the cross-claims trial if the Court granted the defendants' petitions. Specifically, the plaintiffs requested this Court to decide whether the bankrupt debtor Raymark, Inc., can be adjudicated a joint tortfeasor without leave of the bankruptcy court. If so, the plaintiffs argued that Raymark was not properly adjudicated a joint tortfeasor, and that, therefore, contribution, as well as indemnity in favor of Anchor Packing Co., should not have been awarded with regard to Raymark.
In response to the plaintiffs' conditional cross-petition for certiorari, the defendant Anchor Packing Co. filed a conditional cross-petition for certiorari. In the event that this Court granted the plaintiffs' conditional cross-petition, Anchor Packing Co. requested that the Court address the following contentions: (1) certain deposition testimony was erroneously admitted; (2) an instruction that Anchor had a continuing duty to warn of the hazards of asbestos after the plaintiffs' last exposure to asbestos containing products was improper; (3) the plaintiff Zenobia failed to show that the products which Anchor supplied and/or installed contained asbestos or that the plaintiff Zenobia was exposed to Anchor's products; and (4) because the verdict for compensatory damages was excessive and against the weight of the evidence, Anchor's motion for a new trial or remittitur should have been granted.
This Court granted all of the petitions and cross-petitions. Additional facts will be set forth in the particular parts of this opinion to which the facts relate.[3]
I.
The defendants' initial argument is that certain deposition evidence should not have been admitted because it was irrelevant and because these defendants were not present at the depositions and thus were unable to cross examine the deponents.[4] The depositions were admitted into evidence for the limited purpose of proving what the defendants should have known concerning the dangers of asbestos. Such knowledge is often referred to as "state of the art." The defendants do not argue that "state of the art" or an element of knowledge is not relevant in this strict liability case; rather they insist that these depositions, because they pertain to what other companies knew about asbestos, are not proper "state of the art" evidence. In order to resolve these arguments, it is necessary to discuss briefly why any element of knowledge is relevant in this strict liability case.
A.
Section 402A of the Restatement (Second) of Torts, adopted by this Court in Phipps v. General Motors Corp., 278 Md. 337, 344, 363 A.2d 955, 958 (1976), requires that, in order to recover under a theory of strict liability, a plaintiff must show:
"(1) [that] the product was in a defective condition at the time it left the possession or control of the seller,
(2) that it was unreasonably dangerous to the user or consumer,
(3) that the defect was a cause of the injuries, and
(4) that the product was expected to and did reach the consumer without substantial change in its condition."
Thus, on its face, 402A subjects a seller of a defective product to strict liability without regard to the knowledge of the defect and "even though [the seller] has exercised all possible care in the preparation and sale of the product." Restatement (Second) of Torts 402A, Comment a (1965).
When a product is alleged to be defective because of a failure to give an adequate warning, however, many courts have relied on Comment j of 402A. Comment j explains that "the seller is required to give warning against [the danger], if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the ... danger." The comment goes on to distinguish a product containing an adequate warning from a defective product, stating: "a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous."[5]
Several courts have acknowledged that the language in Comment j appears to contradict or create an exception to the basic rule set out in 402A. See, e.g., Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37, 37 Ill.Dec. 304, 310, 402 N.E.2d 194, 200 (1980); Little v. PPG Industries, Inc., 19 Wash. App. 812, 821-822, 579 P.2d 940, 946-947 (1978), modified on other grounds, 92 Wash.2d 118, 594 P.2d 911 (1979). Nevertheless, the majority of courts which have considered a failure to warn case in the context of strict liability have either expressly or implicitly held that a manufacturer of a product, which is defective only because of the lack of an adequate warning, is not liable when the failure to warn resulted from an absence of knowledge of the dangerous quality of that product.
Moreover, the courts reason, the presence of the required knowledge can be established by evidence that the dangerous quality of the product should have been known by a manufacturer because it was known in the scientific or expert community. As Judge John Minor Wisdom stated for the court in another case involving a claimed injury from asbestos, Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1089 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974),
"in cases such as the instant case, the manufacturer is held to the knowledge and skill of an expert. This is relevant in determining (1) whether the manufacturer knew or should have known the danger. .. . The manufacturer's status as expert means that at a minimum he must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby."
The same point was made by the United States Court of Appeals for the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1164 (4th Cir.1986):
"Industry standards and state of the art are not synonymous. State of the art includes all of the available knowledge on a subject at a given time, and this includes scientific, medical, engineering, and any other knowledge that may be available. State of the art includes the element of time: What is known and when was this knowledge available."
See, e.g., Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 344 (5th Cir.1982); Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, 1190 (5th Cir.1978); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434, 581 P.2d 271, 279 (1978); Oakes v. Geigy Agricultural Chemicals, 272 Cal. App.2d 645, 651, 77 Cal. Rptr. 709, 713 (3d Dist. 1969); Woodill v. Parke Davis & Co., supra, 79 Ill.2d at 37, 37 Ill.Dec. at 308, 402 N.E.2d at 198; Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 90, 273 N.W.2d 476, 480 (1979); McKee v. Moore, 648 P.2d 21 (Okla. 1982); Cochran v. Brooke, 243 Or. 89, 94-96, 409 P.2d 904, 906-907 (1966). See also C. Marvel, Annotation, Strict Products Liability: Liability for Failure to Warn as Dependent on Defendant's Knowledge of Danger, 33 A.L.R.4th 368 (1984), and cases cited therein.[6] As previously indicated, this evidence concerning the presence or absence of knowledge in the expert community is called "state of the art" evidence.
Consequently, in a failure to warn case governed by the Restatement 402A and Comment j, negligence concepts to some extent have been grafted onto strict liability. In such cases, a majority of courts hold that an element of knowledge or "state of the art" evidence is directly pertinent to a cause of action under 402A of the Restatement (Second) of Torts, and liability is no longer entirely "strict."[7]
On the other hand, a few courts have held that neither the defendant's actual knowledge nor evidence of scientific knowledge about the dangerous characteristics of the product is relevant in a strict liability failure to warn case. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436-439 (Mo. 1984); Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 202-208, 447 A.2d 539, 545-549 (1982); Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340-1342 (9th Cir.1986) (applying Washington law).
Before the trial in the present cases the plaintiffs asserted that evidence of knowledge should not be relevant with regard to their strict liability claims. The defendants, however, argued that the plaintiffs were required to produce "state of the art" evidence as part of their case. The trial judge, apparently relying on a prior ruling in another case by Judge Levin for the Circuit Court for Baltimore City, agreed with the defendants and required that the plaintiffs introduce "state of the art" evidence. Consequently, at trial the plaintiffs introduced evidence designed to show the requisite knowledge or "state of the art." Moreover, neither side in the Court of Special Appeals or before this Court challenged the trial court's ruling that a knowledge component or "state of the art" is pertinent in a strict liability failure to warn case.
The United States Court of Appeals for the Fourth Circuit, applying Maryland law, has held that in a strict liability failure to warn case, "state of the art" is relevant with regard to the defendant's liability. See Lohrmann v. Pittsburgh Corning Corp., supra, 782 F.2d at 1164 ("in Maryland, state of the art can be considered in a strict liability tort case where the claimed defect is a failure to warn"). The federal Court of Appeals reasoned that in Phipps v. General Motors Corp., supra, this Court "adopted strict liability in tort as expressed in 402A of the Restatement (Second) of Torts," that Comment j is part of 402A, and that
"[t]he language of Comment (j) is state-of-the-art language because it requires the seller to give a warning if he has knowledge, `or by the application of reasonable, developed human skill and foresight should have knowledge' of the danger."
Lohrmann v. Pittsburgh Corning Corp., supra, 782 F.2d at 1164-1165.
While this Court has not previously dealt with this issue, we agree that our adoption of 402A in the Phipps case included Comment j and the knowledge component provided for in Comment j. The Phipps opinion expressly indicated that our adoption of 402A included the official comments (278 Md. at 346, 363 A.2d at 959-960):
"Under 402A, various defenses are still available to the seller in an action based on strict liability in tort. These defenses are set forth and explained in the official comments following 402A."
Moreover, in Phipps we discussed with approval several of the official comments, including Comment j. Ibid. In addition, as pointed out by the court in Lohrmann, 782 F.2d at 1164, the Phipps opinion went on to state that "[d]espite the use of the term `strict liability' the seller is not an insurer, as absolute liability is not imposed on the seller for any injury resulting from the use of his product." 278 Md. at 351-352, 363 A.2d at 963. See also Miles Laboratories v. Doe, 315 Md. 704, 724, 556 A.2d 1107, 1117 (1989) ("[o]ur adoption of 402A in Phipps ... implicitly adopted the substance of Comment k"); Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 591-592, 495 A.2d 348, 353 (1985) (to the same effect with respect to Comment g of 402A).
We hold that Comment j of 402A is applicable to a strict liability cause of action where the alleged defect is a failure to give adequate warnings. Therefore, the seller is not strictly liable for failure to warn unless the seller has "knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ... danger." Restatement (Second) of Torts 402A, Comment j. Moreover, we agree with the numerous cases holding that, for purposes of the "should have knowledge" component of comment j, a manufacturer of a product is held to the knowledge of an expert in the field. See Babylon v. Scruton, 215 Md. 299, 304, 138 A.2d 375, 378 (1958), quoting 2 Harper & James, The Law of Torts 28.4 (negligence case pointing out that "`a person who undertakes such manufacturing will be held to the skill of an expert in that business and to an expert's knowledge of the arts, materials, and processes. Thus he must keep reasonably abreast of scientific knowledge and discoveries touching his product ...'").[8]
B.
As previously stated, the defendants argue that the deposition evidence was inadmissible because (1) they were not present at the depositions and did not have the opportunity to cross examine the deponents, and (2) this deposition evidence, pertaining to what other asbestos manufacturers knew about the dangers of asbestos, is not proper "state of the art" evidence. We shall first address the requirements of Maryland Rule 2-419 and the former testimony exception to the hearsay rule, and then discuss the admissibility of the depositions on relevance grounds.
1.
The defendants argue that the deposition testimony should not have been admitted because they were not present at the depositions and did not have an opportunity to cross examine the witnesses. The defendant suppliers/installers Anchor Packing Co., Porter Hayden and MCIC, Inc., were not present at the deposition of Dr. Mancuso, nor were any other non-manufacturing suppliers/installers of asbestos. Several manufacturers, however, were present at this deposition, including Owens-Illinois. Similarly, although Owens-Illinois was not present, several defendant manufacturers attended the depositions of Dr. Smith, Mr. Pechstein and Mr. Humphrey.
Depositions meeting the requirements of Maryland Rule 2-419 may be admissible under the former testimony exception to the rule against hearsay.[9] In Huffington v. State, 304 Md. 559, 569-574, 500 A.2d 272, 277-279 (majority opinion), 304 Md. at 597, 500 A.2d at 291 (dissenting opinion) (1985), cert. denied, 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986), we endorsed the substance of Federal Rule of Evidence 804(b)(1) as the test for the admissibility of former testimony.[10]See also Grandison v. State, 305 Md. 685, 734-735, 506 A.2d 580, 609-610, cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986).
The United States Court of Appeals for the Sixth Circuit in Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1295 (6th Cir.1983), cert. denied, 467 U.S. 1253, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984), quoting Weinstein & Berger, Evidence 804(b)(1)[04], at 804-67 (1969), noted that "`cases decided since the enactment of 804(b)(1) for the most part indicate a reluctance to interpret "predecessor in interest" in its old, narrow, and substantive law sense, of privity.'" Accordingly, the court explained the former testimony hearsay exception contained in 804(b)(1) as follows (Ibid., quoting Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1187 (3d Cir.), cert. denied, 439 U.S. 969, 99 S.Ct. 461, 58 L.Ed.2d 428 (1978)):
"`if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party.' Under these circumstances, the previous party having like motive to develop the testimony about the same material facts is, in the final analysis, a predecessor in interest to the present party."
Thus, a "predecessor in interest" for the purposes of this rule is interpreted to include any party with a similar motive to develop the testimony. Privity between the two parties is no longer required. Deposition testimony is admissible if some other party, present at the deposition, had the same opportunity and similar motive to develop the testimony as the party against whom the deposition is offered. Clay v. Johns-Manville Sales Corp., supra, 722 F.2d at 1294-1295; Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1505 (11th Cir.1985); Dartez v. Fibreboard Corp., 765 F.2d 456, 462-463 (5th Cir.1985). As we have expressly adopted the substance of Federal Rule of Evidence 804(b)(1), we agree that "[m]otive to develop the testimony, [rather than privity between the parties], is the key factor" in assessing whether the parties present at the deposition are predecessors in interest for purposes of Maryland Rule 2-419(c). J. Murphy, Maryland Evidence Handbook 802(D), at 259 (1989).
In deciding whether the deposition testimony was properly admitted in these cases, we shall first address the principal argument of the defendant suppliers/installers as to why the deposition of Dr. Mancuso was improperly admitted against them. They argue that their interests were not adequately protected by the presence of the manufacturers at the Dr. Mancuso deposition because manufacturers of asbestos would not have the same motive to develop certain testimony as a supplier/installer would. Therefore, the argument continues, the manufacturers were not the predecessors in interest of suppliers/installers. In fact, the suppliers/installers argue, their interests conflict with the interests of the manufacturers in this litigation.
The depositions were admitted for the limited purpose of proving "state of the art." As earlier explained, state of the art evidence is directly relevant to whether a product was defective when it was sold by a manufacturer. In a strict liability action, if a product is defective when it was sold by a manufacturer because it lacked a warning of its dangerous characteristics, although it should have had such a warning in light of the state of the art, and if the defective and dangerous product reaches the user plaintiff without substantial change, middlemen or intermediate sellers of the defective product are strictly liable to the plaintiff user just as the manufacturer is liable to the plaintiff. Restatement (Second) of Torts 402A, Comment f; Eaton Corp. v. Wright, 281 Md. 80, 88-90, 375 A.2d 1122, 1126-1127 (1977). This principle, at least at the present stage of the law's development, is fully applicable in a strict liability failure to warn case. Prosser and Keeton explain as follows (Prosser and Keeton, Torts 99, at 697 (5th ed. 1984), emphasis added):
"It is commonly said that a product can be defective in the kind of way that makes it unreasonably dangerous by failing to warn or failing adequately to warn about a risk or hazard related to the way a product is designed. But notwithstanding what a few courts have said, a claimant who seeks recovery on this basis must, according to the generally accepted view, prove that the manufacturer-designer was negligent. There will be no liability without a showing that the defendant designer knew or should have known in the exercise of ordinary care of the risk or hazard about which he failed to warn....
"There is one aspect of this so-called strict liability in addition to the matter of defenses and limitations on liability that distinguish it from negligence liability. When a manufacturer or assembler markets without adequate warnings, a reseller is subject to liability without negligence in reselling the product without adequate warning. Thus, all those in the marketing chain subsequent to a sale by the manufacturer are liable without negligence for the negligence of the manufacturer in failing to warn or adequately to warn."
See also Nissen Corp. v. Miller, 323 Md. 613, 624, 594 A.2d 564, 569 (1991) ("It is clear that Maryland espoused the doctrine of strict liability in tort in order to relieve plaintiffs of the burden of proving specific acts of negligence ... where plaintiffs can prove a product is defective and unreasonably dangerous when placed in the stream of commerce") (emphasis added). Consequently, with respect to the strict liability claim of a plaintiff, intermediate sellers such as the suppliers/installers in the present case have the same interest as the manufacturers in attempting to show that the state of the art did not require a warning and that, therefore, the product was not defective under the principles of 402A, Comment j, of the Restatement (Second) of Torts.[11]
The defendant Owens-Illinois has even less cause to complain about the admission of depositions under Maryland Rule 2-419(c). A defendant manufacturer was present at each of the depositions admitted against Owens-Illinois. Owens-Illinois clearly is held to the same "state of the art" standard as those defendants present at the depositions. The defendants at the depositions are predecessors in interest to Owens-Illinois because they had the same opportunity to develop the testimony. Therefore, these depositions fall within the former testimony exception to the rule against hearsay and are admissible against Owens-Illinois under Rule 2-419(c).
2.
We now turn to the defendants' argument that these depositions should not have been admitted because they do not address what was known to the expert, medical or scientific community but, rather, address what other asbestos manufacturing companies knew. As previously stated, all manufacturers are held to the knowledge and skill of an expert. Borel v. Fibreboard Paper Products Corporation, supra, 493 F.2d at 1089. The defendants' argument that this expert testimony is irrelevant because it relates only to what individual companies discovered, "reflects a misunderstanding of a critical issue in any product liability action: the state of the art pertaining to any possible risks associated with the product." Dartez v. Fibreboard Corp., supra, 765 F.2d at 461.
The United States Court of Appeals for the Fifth Circuit considered this argument in an identical context in Dartez v. Fibreboard Corp., supra. That court determined that similar deposition evidence was relevant to the state of the art element of a products liability case, explaining (Ibid.) (emphasis added):
"Dartez was required to establish that the dangers of asbestos were reasonably foreseeable or scientifically discoverable at the time of his exposure before these defendants could be found liable.... Borel holds all manufacturers to the knowledge and skill of an expert. They are obliged to keep abreast of any scientific discoveries and are presumed to know the results of all such advances. Moreover, they each bear the duty to fully test their products to uncover all scientifically discoverable dangers before the products are sold.... The actual knowledge of an individual manufacturer is not the issue."
Accord Clay v. Johns-Manville Sales Corp., supra, 722 F.2d at 1294-1295.
We agree with the United States Courts of Appeal for the Fifth and Sixth Circuits that deposition evidence concerning what scientific and medical experts in the field knew about the dangers of asbestos is relevant to the plaintiff's attempt to prove state of the art. Such expert evidence is not irrelevant merely because these experts were employed by private companies. Because manufacturers are held to the standards and knowledge of an expert, this evidence is relevant to show what was scientifically and medically available and discoverable by other experts in the field.
Moreover, "`the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.'" Bloodsworth v. State, 307 Md. 164, 185-186, 512 A.2d 1056, 1067 (1986), quoting Raithel v. State, 280 Md. 291, 301, 372 A.2d 1069, 1074-1075 (1977). Here, the deposition evidence included statements concerning the availability of published scientific and medical data about the dangers of asbestos exposure in addition to statements about the results of experiments conducted by experts on behalf of the Johns-Manville and Philip Carey Companies.
Furthermore, even if the admission of the depositions were an abuse of discretion, the defendants have not shown that the error was prejudicial. The live testimony of Dr. Schepers in large part duplicated the state of the art evidence in the depositions. Dr. Schepers testified that in 1930 there were approximately fifty medical articles concerning the dangers of asbestos and that by 1960 there were "nearly a thousand" such articles. Dr. Schepers further testified about experiments which he conducted with asbestos containing products on behalf of Owens-Illinois.
In light of the nature of the deposition testimony and the additional state of the art testimony by Dr. Schepers, the defendants have not shown that the admission of these depositions constituted reversible error.
II.
The defendant Owens-Illinois contends that the trial court should not have instructed the jury that the duty to warn continues after the defendant stops manufacturing or selling products containing asbestos. The instruction only applied to the Zenobia case. The plaintiff Zenobia had argued that because he was a smoker and smoking aggravated the development of asbestosis, a post-exposure warning from Owens-Illinois would have prevented the aggravation of his disease. Owens-Illinois stopped manufacturing asbestos in 1958. Owens-Illinois' argument is not that, under the particular facts of this case, it was not required to give a warning after 1958. Instead, Owens-Illinois argues that, as a matter of law, a manufacturer has no duty whatsoever to warn after it stops manufacturing the product.
Generally, a manufacturer of a defective product has a duty to warn of product defects which the manufacturer discovers after the time of sale. As this Court stated in Rekab, Inc. v. Frank Hrubetz & Co., 261 Md. 141, 146, 274 A.2d 107, 110 (1971), quoting 1 Frumer and Friedman, Products Liability 8.02, at 148.3, "`[e]ven if there is no duty to warn at the time of the sale, facts may thereafter come to the attention of the manufacturer which