United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
EF--> 116-117, 604 A.2d 47, 51-52, cert. denied, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992); Owens-Illinois v. Zenobia, supra, 325 Md. at 448, 601 A.2d at 646, quoting Lockwood v. AC & S, Inc., 109 Wash.2d 235, 260, 744 P.2d 605, 619 (1987); Nizer v. Phelps, 252 Md. 185, 205, 249 A.2d 112, 123 (1969); Balto. Transit Co. v. State, 194 Md. 421, 434, 71 A.2d 442, 447 (1950); State v. Baltimore & O.R. Co., 157 Md. 256, 262, 145 A. 611, 613-614 (1929); Lozzi v. Pennsylvania R. Co., 152 Md. 508, 510, 137 A. 293, 293 (1927); Baltimore & O.R. Co. v. Stumpf, 97 Md. 78, 91, 54 A. 978, 980 (1903); Tucker v. State, 89 Md. 471, 480, 43 A. 778, 781 (1899). This presumption is just as applicable in the case of property damage as it is in the case of personal injury . The evidence offered by Asbestospray to rebut the presumption was for the trier of fact to consider in determining whether receipt of a post-sale warning would have changed the City's behavior. The issue of causation relating to the defendant's failure to issue a post-sale warning was properly submitted to the jury.
Asbestospray additionally argues that the trial court erred in admitting evidence of the knowledge and conduct of asbestos manufacturers after 1971, when the sales of the Asbestospray products at issue in this case were completed. The defendant claims that this evidence contained "irrelevant information about knowledge that developed concerning asbestos ten, twenty, and thirty years later." As we noted above, however, a manufacturer has a continuing duty to warn of product defects discovered even long after the time of sale.
Post-sale evidence relating to the hazards of asbestos-containing materials and the industry reaction was relevant, then, to the continuing duty to warn and was properly admitted at trial. See Perlmutter v. U.S. Gypsum Co., 4 F.3d 864, 870 (10th Cir. 1993) (evidence of post-sale technical advancements and discoveries concerning asbestos-containing materials was relevant to the issue of whether a post-sale duty to warn existed). See also Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242, 256 (Fla.Dist.Ct.App. 1984), review denied, 467 So.2d 999 (Fla. 1985) (evidence regarding the manufacturer's knowledge of the hazards of asbestos acquired after the last year that the plaintiff was exposed to asbestos, was relevant, inter alia, to the continuing duty to warn); Lockwood v. AC & S, Inc., supra, 109 Wash.2d at 257-260, 744 P.2d at 618-619 (post-exposure evidence was relevant to the claim that the manufacturer had a continuing duty to warn the plaintiff of the known dangers of its asbestos product).
III.
Asbestospray assigns as prejudicial error the trial court's instructions on "state of the art." The manufacturer contends that the court's state of the art instruction under the negligence count was inconsistent with the court's state of the art instruction under the strict liability count, that the instructions were confusing, that "to charge one manufacturer [of asbestos-containing products] with knowledge of another manufacturer [of asbestos-containing products] . . . is absurd," and that "to charge each manufacturer with what is 'scientifically discoverable' is totally divorced from the concepts of reasonableness and ordinary care. . . ." (Asbestospray's brief at 44). The defendant also challenges the admission of two items of evidence as improper state of the art evidence.
As Judge Chasanow recently pointed out for the Court in Bruce v. State, 328 Md. 594, 614, 616 A.2d 392,
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