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United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
s v. Zenobia, supra, 325 Md. at 432-438, 601 A.2d at 638-641. What was known in the industry and in the scientific and expert communities about the product is referred to as "state of the art." Zenobia, 325 Md. at 434, 601 A.2d at 639. It includes not only discoveries by the general scientific community or discoveries reflected in the general scientific literature, but also the discoveries by scientists or experts employed by other manufacturers. Zenobia, 325 Md. at 444-445, 601 A.2d at 645 ("expert evidence [on state of the art] is not irrelevant merely because these experts were employed by private companies"); Dartez v. Fibreboard Corp., 765 F.2d 456, 461 (5th Cir. 1985) ("the knowledge of one manufacturer can be a proper basis for concluding that another manufacturer should have warned of a specific danger"). For this reason, there was no inconsistency between the trial court's reference to "doctors and scientists" in its strict liability
charge and the reference to the "other manufacturers" in its negligence charge. Moreover, in light of the instructions as a whole, the two instructions were not confusing.
Asbestospray also argues that the trial judge erred in instructing the jury that what the defendants should have known includes what is "scientifically discoverable" in the medical and scientific community. (Asbestospray's brief at 44). The phrase "scientifically discoverable" must be viewed in its proper context. See, e.g., Bruce v. State, supra, 328 Md. at 614-615, 616 A.2d at 402; Collins v. State, supra, 318 Md. at 283, 568 A.2d at 8; Bowers v. State, supra, 298 Md. at 159, 468 A.2d at 124. The phrase was used to explain to the jury that a manufacturer of a product is held responsible for what it should have known about the product. The phrase immediately followed the trial judge's statement that the knowledge element is time-restricted to "what [manufacturers] should have known at the time the products were manufactured or sold." Furthermore, when so restricted, the term has been used interchangeably with other definitions of state of the art. For example, in discussing the evidentiary burdens of proof to sustain a verdict under both negligence and strict liability theories, the court in Dartez v. Fibreboard Corp., supra, 765 F.2d at 469, stated that manufacturers are liable for failing to warn of "any risk associated with the product that is 'scientifically discoverable' . . . by one with the 'knowledge and skill of an expert.'" This was quoted with approval in Owens-Illinois v. Zenobia, supra, 325 Md. at 444, 601 A.2d at 645. See also Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1088 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974) (strict liability action where the court stated that "the requirement that the danger be reasonably foreseeable, or scientifically discoverable, is an important limitation of the seller's liability").
Asbestospray's argument, that it is "absurd" to charge one manufacturer of a product containing asbestos with the scientific knowledge about the product's hazards possessed by other manufacturers of products containing asbestos, simply
ignores the holdings in several Maryland cases and the relevance of the "state of the art." Recently, in Owens-Illinois v. Zenobia, supra, 325 Md. at 444-445, 601 A.2d at 644-645, we rejected the defendant's argument that cert
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