# Appendix — Armstrong v. Owens-Illinois, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1091%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 506 U.S. 871 ## Text 92-228 |} Mupreme Cowt, US No. = FILED JUL 6 1999 In The | OFFICE OF THE CLERM Supreme Court of the United States -— October Term, 1992 OTHELLO ARMSTRONG, et ai., Petitioners, VS. OWENS-ILLINOIS, INC., Respondent. On Petition for Writ of Certiorari to the Court of Appeals of Maryland SUPPLEMENTAL APPENDIX FOR PETITIONERS HARRY GOLDMAN, JR. Counsel of Record SHEPARD A. HOFFMAN MICHAEL P. CASEY GOLDMAN & SKEEN, P.A. Attorneys for Petitioners 1123 Munsey Building Calvert & Fayette Streets Baltimore, Maryland 21202 (410) 837-4222 (410) 685-7155 (FAX) 2243 tz *NJ (908) 257-6850¢(800) 3 APPEAL *NY (212) 840-4640*MA (617) 542-1114 Ss.ime. OC (202) 783-7288+PA (215) 925-6500°USA (800) 5 APPEAL TABLE OF CONTENTS Page Appendix H — Decision of Court of Appeals of Maryland Opinion, Owens-Illinois v. Armstrong, 326 MD. 107, 128-29, Reversing Petitioners’ Punitive Damage Awards and Applying the New Law Announced in I 0 6s BER ee Cee ete ees ns 18a Appendix I — Decision of Court of Appeals of Maryland Opinion, Owens-/llinois v. Zenobia, 325 Md. 420, 469, Stating Clear and Convincing Standard of Evidence to be Applied in Punitive Damage Awards 18a APPENDIX H — DECISION OF COURT OF APPEALS OF MARYLAND OPINION, OWENS-ILLINOIS V. ARMSTRONG, 326 MD. 107, 128-29, REVERSING PETITIONERS’ PUNITIVE DAMAGE AWARDS AND APPLYING THE NEW LAW ANNOUNCED IN ZENOBIA 604A.2d 47 OWENS-ILLINOIS, INC. Othello ARMSTRONG , etal. No. 77, Sept. Term, 1991. Court of Appeals of Maryland. April 7, 1992. Harry S. Johnson (Patrick C. Smith, Gardner M. Duvall, Julia K. Evans, Whiteford, Taylor & Preston, on brief), Baltimore, Walter E. Dellinger, Durham, N.C., argued, for petitioner. Edward F. Houff, Carolyn J. Moses, Church & Houff, P.A., Baltimore, for amicus curiae Center for Claims Resolution. Shepard A. Hoffman (Harry Goldman, Jr., David M. Layton, Goldman & Skeen, P.A., on brief), Baltimore, for respondents. Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ. | 19a Appendix H CHASANOW. Judge. Kaylo is an asbestos-containing insulation that was manufactured and sold by petitioner, Owens-Illinois, Inc., from 1948 to 1958. In 1958, Owens-Illinois, Inc. conveyed the Kaylo product line to Owens-Corning Fiberglas. Kaylo was generally sold as 50-60 pound blocks which were separated into pieces with hammers or saws. The cutting, fitting, and installation of Kaylo was alleged to have been extremely dusty work. Respondent, Othello Armstrong, worked first as a laborer and later as a welder on engines and in boiler rooms of various ships being built or repaired at the Bethlehem Steel Corporation shipyards. Armstrong was employed at the shipyards from 1942 to 1963. While there, Armstrong claims he was exposed to thick clouds of asbestos-containing dust which was identified by a witness as Kaylo dust. There is no allegation that Armstrong was exposed to asbestos products after he left the shipyards in 1963. Respondent, Forrest Wood, was a rigger at a Bethlehem Steel shipyard from 1941 to 1975. As a rigger, Wood assisted other workmen in the removal of equipment and materials from ships. His job included assisting pipe-coverers in the installation and removal of pipe-covering insulation. This work, like that performed by Armstrong, was alleged to have involved exposure to heavy clouds of Kaylo dust. Armstrong and Wood, along with two other workers not directly involved in this appeal, filed suit in the Circuit Court for Baltimore City against Owens-Illinois and other companies that manufactured, installed, or supplied asbestos-containing insulation products. The plaintiffs’ allegations were based on negligence and strict liability in tort. A jury returned verdicts for 20a Appendix H Armstrong and the Woods against each defendant. The trial court, Judge Clifton J. Gordy, Jr., denied the defendants’ motion for judgment notwithstanding the verdict. Owens-Illinois and Eagle-Picher Industries, two of the defendants, appealed. The latter’s appeal was stayed after it filed a Title 11 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Ohio, thus making Owens-Illinois the sole defendant seeking review of the judgments. The Court of Special Appeals affirmed the awards. Owens-Illinois v. Armstrong, 87 Md.App. 699, 591 A.2d 544 (1991). This Court granted Owens-Illinois’ petition for certiorari. We shall address each issue raised by Owens-Illinois, amplifying when necessary the factual scenario presented above. BUSINESS RECORDS In 1969, a Bethlehem Steel industrial health engineer was directed by a vice president to conduct an asbestos exposure study and prepare a report on the exposure of both Bethlehem and non- Bethlehem personnel to asbestos-containing dust at Bethlehem’s facilities. The five-page report was offered into evidence by Owens-Illinois as a business record of Bethlehem Steel. Owens-Illinois contends the Bethlehem study should have been admitted because it showed that, in three “bystander” dust counts taken around employees in the same jobs as Wood and Armstrong working in ship engine rooms where insulation was being installed, no measurable amount of asbestos fibers was detected. Although acknowledging that the report was prepared and maintained in the ordinary course of business, Armstrong and Wood objected to its admissibility. Judge Gordy ruled: 2la Appendix H “I don’t have any problem with this [meeting the] business record exception. That does not automatically make an exhibit aumissible. It gets over that hurdle, but it is significantly unreliable ... I am not satisfied that the conclusions or the results cited herein are reliable. Itis not trustworthy ...” On appeal, Owens-Illinois contends that “once a document has been found to be a business record there is no additional trustworthiness or reliability test unless [in acriminal case] the 6th Amendment is implicated.” We disagree with Owens-Illinois and hold that a trial judge has discretion to exclude a document that meets the technical requirements of a business record when the objecting party persuades the judge that the document lacks the degree of reliability and trustworthiness that business records are ordinarily assumed to possess! In Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), tort actions were filed against a railroad for death and personal injuries arising out of a railroad accident at a grade crossing. Plaintiffs alleged that the railroad was negligent because the engineer failed to ring the bell, blow the whistle, and have ali ght burning at the front of the train when approaching the crossing. Two days after the accident, pursuant to railroad requirements, the engineer gave a signed statement to railroad officials and to a State Public Utilities Commission representative containing his version of the accident and denying any negligence. Before trial the engineer died. At trial, the engineer’s statement was offered into evidence by the railroad as a business record. Plaintiffs’ objection 1. Armstrong and Wood also contended before the trial judge that the 1969 asbestos dust study was not relevant. The Court of Special Appeals saw no need to reach that issue, and it was not raised before this Court. 2a Appendix H to the admissibility of the statement was sustained, and after a verdict for the plaintiffs, the railroad appealed. The United States Supreme Court ultimately granted certiorari and upheld the trial judge’s decision notto admit the engineer’s statement. Perhaps the best analysis of the Palmer decision is found in 2 McCormick on Evidence, § 288 at 272 (John W. Strong ed., 4th ed. 1992) (hereinafter, McCormick), which provides: “While Palmer has been subject to various interpretations, the most reasonable reading of it is that it did not create a blanket rule of exclusion for accident reports or similar records kept by businesses. Rather, it recognized a discretionary power in the trial court to exclude evidence which meets the letter of the business records exception, but which, under the circumstances, appears to lack the reliability business records are assumed ordinarily to have. The existence of a motive and opportunity to falsify the record, especially in the absence of any countervailing factors, is of principal concern. The Federal Rule incorporates this reading of Palmer by permitting admission if the report otherwise complies with the requirements of the rule, ‘unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.’ ” (Footnotes omitted). This Court has recognized that, in some instances, business records may be excluded if established to be unreliable or untrustworthy. In Marine Bank v. Stirling, 115 Md. 90, 102-03, 80 A. 736, 739-40 (1911), abank ledger on which checks “found loose 23a Appendix H in the bank” were entered was found too uncertain or unreliable to be admissible. We stated: “Such a claim would not ordinarily of itself affect the admissibility of an individual ledger, containing the accounts between depositors and the bank, but under such circumstances as are shown in this case there is too much indicating the uncertainty and unreliability of this ledger account to permit it to be used as evidence perse ...” 115 Md. at 103, 80A. at 740. The federal rules of evidence pertaining to the hearsay exception for business records and public records exclude otherwise admissible records if the sources of information or other circumstances “indicate lack of trustworthiness.” Federal Rules of Evidence 803(6) and 803(8). In Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348 (1985), this Court examined the public records hearsay exception and held that “factual findings” contained in public records are admissible unless the party Opposing introduction of a public record proves the factual finding is unreliable. Judge McAuliffe, writing for the Court, indicated how such unreliability may be established. The reasoning is equally applicable to proving a business or public record is untrustworthy. The Court stated: “We also make clear that even though the burden rests upon the party opposing the introduction of a public record to demonstrate the existence of negative factors sufficient to 24a Appendix H overcome the presumption of reliability, this does not mean that additional evidence will be required in every case to meet that burden. Indicia of unreliability may be contained in the report itself, or may be disclosed by the evidence of the party offering the report.” 303 Md. at612,495A.2d at 364. The factors that can be utilized by a trial judge in determining whether a business record or a portion of a business record should be excluded for lack of trustworthiness may include such factors as: 1) the purpose for which the record was prepared and any possible motive to falsify including whether the record’s use in prospective litigation was a motive for its preparation, see Rossi v. Mobil Oil Corp., 710 F.2d 821, 830 (Temp.Emer.Ct.App.1983), Jefferson Garden Associates v. Greene, 202 Conn. 128, 520 A.2d 173, 181 (1987); 2) how routine or non-routine the record is and how much reliance the business places on the record for business purposes, Palmer v. Hoffman, supra; and 3) where, as in the instant case, the record contains opinions and conclusions — how valid, speculative, or conjectural the opinions or conclusions are, as well as the need for interpretation or cross-examination to prevent misleading or confusing the trier of fact. See 2 McCormick, § 293 at 280-81. Wood and Armstrong contend that the trial judge was correctin his determination that the disputed “business record” of the asbestos dust study was untrustworthy. The Court of Special Appeals aptly noted that the study was made at the request of one of Bethlehem’s vice-presidents and “[o]n its face, the report appears to be a single or, at most irregular, request.” 87 Md.App. at 712, 591 A.2d at 550. The industrial health engineer may have been reluctant 25a Appendix H to report that personnel, including non-Bethlehem personnel, were being exposed to potentially lethal levels of asbestos dust. Armstrong and Wood point to a number of additional reasons why the report lacks trustworthiness which we note might also go to its relevancy. Armstrong had left Bethlehem six years before the Study, and Wood had started working in the shipyard twenty-eight years before the date of the study. The report does not indicate what products were being used in 1969 when the asbestos dust counts were done and that this information would be iraportant because manufacturers had reduced or eliminated the asbestos in their insulation by 1969. The report also does not indicate whether the working conditions and dust exposure of the employees in the 1969 study were similar in relevant aspects to the working conditions and dust exposure of Wood and Armstrong. The Owens-Illinois product Kaylo was apparently not one of the insulating products in use during the 1969 asbestos dust Study, since Owens-Illinois had stopped manufacturing Kaylo eleven years before the study, and we have no description of the asbestos content, if any, of the insulation products that were in use during that Study. Further, the trial judge was concerned that the report lacked sufficient specificity as to the methodology used in conducting the study. For the reasons indicated, the trial judge did not err in concluding that the “business record” lacked trustworthiness, and if the 1969 dust study results were to be admitted, the personnel conducting the study would have to be called as witnesses to establish the study’s validity. Although we sustain the trial judge’s ruling which excluded the “business record” in the instant case because it lacked trustworthiness, we hasten to add that, where a record qualifies asa business record, there is a presumption of trustworthiness, and the objecting party, especially in a civil case, bears a heavy burden in 26a Appendix H order to exclude an otherwise admissible business record as untrustworthy. PROXIMATE CAUSE Owens-Illinois’ next contention is that Armstrong did not prove proximate cause because he “failed to present any evidence that had a warning been given, it would have been heeded.” That contention is based in part on the fact that Armstrong smoked cigarettes for forty years until he quit in the mid-1970’s despite health warnings that were placed on cigarette packages after January 1, 1966. Therefore, according to Owens-Illinois, the lack of a warning On its asbestos product was not the proximate cause of Armstrong’s asbestoses because there is no evidence that he would have heeded that warning. In analyzing this issue, we must keep in mind that we are being asked to declare as a matter of law that there was insufficient evidence to have submitted this aspect of the case to the jury. Under these circumstances, an appellate court must view the evidence in the light most favorable to the prevailing party below, resolving all conflicts in its favor. Lehman v. Balto. Transit Co., 227 Md. 537, 540-41, 177 A.2d 855, 857 (1962). “A party is not entitled to judgment n.o.v. unless the facts and circumstances so considered are such as to permit of only one inference with regard to the issue presented.” Jmpala Platinum vy. Impala Sales, 283 Md. 296, 327, 389 A.2d 887, 905 (1978). Causation is a necessary element of any strict liability action. Phipps v. General Motors Corp., 278 Md. 337, 344, 363 A.2d 955, 958 (1976). In considering whether causation has been proven ina failure to warn strict liability action, the trier of fact is entitled to ~—ttraw the reasonable inference that people are assumed to act for 27a Appendix H self-preservation absent proof to the contrary. See Md. Central R.R. v. Neubeur, 62 Md. 391, 402 (1884); Nizer v. Phelps, 252 Md. 185. 205,249 A.2d 112, 123 (1969). Owens-Illinois asserts that Armstrong’s “testimony that he smoked for forty years is sufficient evidence to rebut a ‘self- preservation’ presumption.” We disagree and hold that the issue of causation was properly submitted to the jury. This issue was addressed in Raney v. Owens-Illinois, 897 F.2d 94 (2nd Cir.1990). There the U.S. Court of Appeals fer the Second Circuit held: “[A] prediction as to what a worker, alerted to the [asbestos] hazards, would have done is generally within the range of reasonable dispute that makes matters appropriate for submission to a jury. Evidence that [decedent], who had begun smoking and perhaps had become addicted years before cigarette health warnings appeared, did not stop smoking after such warning ... is, at most, acircumstance for the trier to consider in deciding whether an asbestos warning would have been heeded. Such evidence does not preclude a finding in plaintiff's favor. As [the trial judge] noted, a jury could reasonably conclude that [decedent] would have adjusted his conduct more significantly to asbestos warnings than tocigarette warnings . . .” 897 F.2d at 96. See also Skonberg v. Owens-Corning Fiberglas Corp., 215 Ill.App.3d 735, 159 Ill.Dec. 359, 363, 576 N.E.2d 28. 32 28a Appendix H (1991). The fact that Armstrong was a heavy smoker who ignored warnings placed on cigarette packages during the last decade of the forty-year period when he smoked is not enough evidence to find as a matter of law that he would have ignored warnings about the dangers of asbestos. We find that there was sufficient evidence for the jury to reasonably conclude Armstrong would have heeded a warning of health hazards from inhalation of asbestos-containing dust from Kaylo products and that Owens-Illinois’ failure to warn was the proximate cause of Armstrong’s asbestoses. SUBSTANTIAL FACTOR Wood testified that while assisting workers installing Kaylo pipe-covering, large amounts of dust “would fly like snowflakes” in the air around them. Armstrong testified that he was exposed to dust from pipe-covering material at the shipyard. One of Armstrong’s fellow employees who worked with him for years testified that Armstrong labored near pipe-coverers using Kaylo, which created clouds of dust that completely coated the workers. Expert witnesses testified that the occupational exposure to asbestos was a substantial factor in causing Wood’s and Armstrong’s asbestoses. The trial judge instructed the jury: “In order fora plaintiff to recover againsta particular defendant, certain things must be shown—must be proved by the plaintiffs by a preponderance of the evidence. You must determine whether each plaintiff has proven by a preponderance of the evidence that he has asbestoses, he worked in proximity to and inhaled respirable asbestos fibers from the 29a Appendix H products of a particular defendant. It must be shown that a product or products manufactured or supplied by that defendant, by a particular defendant was a substantial factor in causing the asbestoses. If no product manufactured or supplied by a particular defendant was a substantial factor in Causing the asbestoses, then that defendant has no responsibility, and the defendant is out right away. ’ Unless there is a product that was manufactured or supplied by a particular defendant which was a substantial factor in causing the asbestoses, there is no responsibility on the part of that defendant.” Owens-Illinois contends that the instruction was deficient because it failed to adequately address the special legal meaning of “substantial factor.” The company insists that the jury should have been instructed that, in order for its product to be a substantial factor in Causing asbestoses, plaintiffs must show that each of them worked in proximity to Kaylo with enough frequency and with enough regularity for the inhaled fibers from Kaylo to have substantially contributed to their asbestoses. We need not decide whether the requested instruction was correct, since the matter was fairly covered by the instruction actually given. We believe that in the instant case “substantial factor” was nota mysterious phrase requiring elucidation. The phrase has even been considered as one that is “sufficiently intelligible to furnish an adequate guide in instructions to the jury, and that it is neither —— 30a Appendix H possible nor desirable to reduce it to any lower terms.” See W. Page Keeton, Prosserand Keetonon Torts, § 41 at 267 (Sthed. 1984) and authorities cited therein. The plaintiffs’ expert witnesses obviously understood the phrase “substantial factor” and, no doubt, so did the jury. In the instant case, especially in light of the expert testimony and the nature and extent of Wood’s and Armstrong’s exposure to Kaylo, the judge was not obligated to further define the concept of substantial factor. “The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Maryland Rule 520(c). CAP ON NONECONOMIC DAMAGES Next Owens-Illinois argues that the Court of Special Appeals erred in holding that Armstrong’s damage award ? was not subject to reduction by the cap on noneconomic damages in Maryland Code (1974, 1989 Repl. Vol.), Courts & Judicial Proceedings Article § 11- 108 (hereinafter the CAP statute). Section 11-108 provides in relevant part: (b) Limitation of $350,000 established.— In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may notexceed $350,000.” (Emphasis added.) Owens-Illinois contends that Armstrong’s cause of action “arose” in September of 1987 when he was first diagnosed as having asbestoses and, therefore, his award for nonecnomic damages is 2. Owens-Illinois challenges only Armstrong's damage award. 3la Appendix H subject to the CAP statute. Owens-Illinois argues that the cause of action “arises” at the time the claimant, with due diligence, discovers his injury. Its argument is an extension of this Court’s interpretation the word “accrues” in the statute of limitations context. In an asbestos-related injury case, this Court held that “in situations involving the latent development of disease, a plaintiff’s cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his injury.” Harig v. Johns-Manville Products, 284 Md. 70, 83, 394 A.2d 299, 306 (1978) (emphasis added).? In reaching this conclusion in Harig, the Court compared an asbestos related injury to a medical malpractice injury and reasoned that “a person incurring disease years after exposure cannot have known of the existence of the tort until some injury manifests itself. In neither case can the tort victim be charged with slumbering on his rights, for there was no notice of the existence of a cause of action.” Id. at 80, 394 A.2d at 305 (emphasis added). Thus the Court recognized a distinction between the time that a cause of action comes into existence and the time that a cause of action may reasonably be discovered. Owens-Illinois asks this Court to hold that a cause of action “arises” when it is discovered as opposed to when it comes into existence. In construing the CAP statute, “we assume that the words of the statute are intended to have their natural, ordinary and generally understood meaning in the absence of evidence to the 3. The principle that the statute of limitations is tolled until a plaintiff has either express or implied knowledge of the wrong is referred to as the “discovery rule.” In Poffenberger v. Risser, 290 Md. 631, 637, 431 A.2d 677, 681 (1981), this Court held that the discovery rule was applicable to civil actions generally. 32a Appendix H contrary.” Brodsky v. Brodsky, 319 Md. 92,98,570A.2d 1235, 1237 (1990). According to Webster’s New World Dictionary (2d ed.) the word “arise” means “to come into being; originate.” Giving the word its ordinary meaning, we believe that a cause of action arises when it first comes into existence. We agree with the Court of Special Appeals’ conclusion that a cause of action in negligence or strict liability arises “when facts exist to support each element.” Armstrong, 87 Md.App. at 724-25, 591 A.2d at 556. In a negligence claim, the fact of injury would seemingly be the last element to come into existence. The breach, duty, and causation elements naturally precede the fact of injury. Likewise in a Strict liability claim, the existence of the defective product and the causal connection will precede the resultant injury. Therefore, Armstrong’s noneconomic damages should be reduced under Section 11-108 of the Courts & Judicial Proceedings Article only if his “injury” came into existence on or after July 1, 1986. Unfortunately, identifying the time at which an asbestos related injury came into existence is usually not a simple task. Due to the latent nature of asbestos-related disease, experts and courts alike have had difficulty in pinpointing its onset. In Mitchell v. Maryland Casualty, 324 Md. 44, 595 A.2d 469 (1991), this Court addressed argument over when “bodily injury” due to asbestos exposure “occurred” for the purpose of triggering coverage under a standard form insurance policy.* The Court considered expert testimony on behalf of both parties: Dr. Epstein, aclinician, and Dr. Craighead, a pathologist. It is no great surprise that the clinician testified that “bodily injury” did not occur until asbestoses had 4. The insurance policy in Mitchell v. Maryland Casualty, 324 Md. 44,595 A.2d 469 (1991) specifically employed the terms “bodily injury” and “occurrence” in defining the scope of the policy’s coverage. For technical accuracy, we retain use of those terms here. 33a Appendix H manifested itself or was clinically detectable. He explained: “Asbestoses is a disease that occurs in lung tissue as a result of prior asbestos exposure. Although asbestos fibers may be deposited in lung tissue in the course of various occupational exposures, ... the disease of asbestoses occurs only when there has been functional impairment of the lung. The human body has extremely effective defense mechanisms to protect the individual from suffering functional impairment as a result of inhalation of asbestos fibers (or other aerosolized materials). It is only when these defensive responses have produced enough alteration in the structure or physiology of the lung to lead to clinically detectable or symptomatic changes that disease can be said to be present.” Mitchell, 324 Md. at 667, 595 A.2d at 480. Thus, the insurance company argued that “bodily injury” occurred only upon the manifestation of disease. Conversely, the pathologist testified that bodily injury occurred much earlier: “As a pathologist I define an ‘injury’ to be the alteration of structure and/or function of a cell, tissue or organ. An ‘injury’ also would include physical or chemical damage to the body which may be detectable only on a microscopic or subclinical level. As a pathologist I define ‘disease’ as the process of reaction and/or repair to injury. In the I ineeeeeeaeaeiiiesianile 34a Appendix H discussion which follows of the diseases of asbestoses, bronchogenic carcinoma, and mesothelioma, there are injuries to cells, tissues and/or organs and associated diseases caused by exposure to asbestos fibers as described, notwithstanding the fact that the injuries and diseases may not be noticeable toa harmed individual or diagnosable by a clinician until some later point in time.” Mitchell, 324 Md. at 64, 595 A.2d at 479. Chief Judge Murphy, writing for the Court, noted that despite the physicians’ disagreement as to the time when a change in-the lungs may be classified as disease “there was no disagreement that the inhalation and retention of asbestos fibers may cause immediate harm to the cells and tissues of the lung.” Mitchell, 324 Md. at 61,595 A.2d at 477. Fortunately, we have the benefit of hindsight in determining whether Armstrong’s cause of action existed prior to 1986. We now know that in 1987 Armstrong was diagnosed as having asbestoses, and we agree with the Court of Special Appeals’ conclusion that “{i]t is inconceivable that Armstrong’s asbestoses came into existence between July 1, 1986 and his medical examination in May 1987.” Armstrong, 87 Md.App. at 727,591 A.2d at 557. We need not decide exactly when Armstrong contracted asbestoses. Given that Armstrong was exposed to large amounts of asbestos from 1943 to 1963, his asbestoses probably had its genesis relatively early in the course of his exposure. Owens-Illinois’ expert testified that “asbestoses does not develop immediately 35a Appendix H after exposure. It takes many, many years, and usually the kind of latency period that we are talking about is probably at the minimum 15 years but more ordinarily 20 or more years. During unusual circumstances less than that could cause the disease.” Based on Owens-Illinois’ expert’s testimony, it is reasonable to assume that Armstrong’s asbestoses took approximately twenty years to develop. Since his exposure began in the early 1940’s, the most reasonable conclusion is that his asbestoses developed at least by the mid-1960’s. Even assuming that the initial damage to Armstrong occurred in 1963, the last year in which he worked in the shipyards, the disease “ordinarily” would have developed by 1983 and under “unusual” circumstances even earlier. The only reasonable conclusion, even viewed in the light most favorable to Owens-Illinois, is that Armstrong had asbestoses prior to July 1,1986. Consequently, we affirm the Court of Special Appeals’ holding that Armstrong’s damage award is not controlled by the cap on noneconomic damages. DAMAGE SETOFF In the Armstrong case, the jury returned a compensatory damage verdict against Owens-Illinois, together with defendants Owens-Corning Fiberglas and Eagle-Picher, in the amount of $730,000. In the Wood case, the jury returned a compensatory damage verdict against Owens-Illinois and Owens-Corning Fiberglas in the amount of $657,000. The jury in both cases also 5. Armstrong's expert defined the latency period, as well as the disease, somewhat differently. She testified that asbestoses is active and present from the time that the first fiber gets into the lungs but that often symptoms may not develop for twenty to thirty years. a, Appendix H determined that Owens-Illinois and Owens-Corning Fiberglas were liable for punitive damages. The punitive damage phase of the trial was to commence the following day. Subsequent to the verdicts, but before the punitive damage phase, Armstrong and Wood reached a settlement with Owens- Corning Fiberglas. Under the terms of the setthkement, Owens- Corning Fiberglas would pay its full pro rata share of each compensatory damage award (one-third of the award in the Armstrong case and one-half of the award in the Wood case) plus an additional amountto settle the punitive damage claims. In the Armstrong case, Owens-Corning Fiberglas paid $304,166.33, which Owens-Illinois acknowledges represents $60,833 to settle the punitive damage claim and $243,333.33 (one- third of $730,000) to settle the compensatory damage claim. In the Wood case, Owens-Corning Fiberglas paid $410,625, which Owens-Illinois acknowledges represents $82,125 to settle the punitive damage claim and $328,500 (one-half of $657,000) to settle the compensatory damage claim. At the conclusion of the case, the trial judge reduced the amount of each compensatory damage verdict by the amount that Owens-Corning Fiberglas paid to settle the compensatory damage award. Again, in each case, that amount equalled Owens-Corning Fiberglas’ pro rata share of the award. Owens-Illinois contends that the judge should have reduced the amount of each compensatory damage verdict by the full amount of compensation paid by Owens- Corning Fiberglas, including the punitive damage settlement amount. The Maryland version of the Uniform Contribution Among Tortfeasors Act, Maryland Code (1957, 1991 Repl. Vol.), Article 50, 37a Appendix H § 19 (hereinafter UCATA) provides that: “A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, Of in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.” (Emphasis added). Section 19 of the UCATA specifically provides that the amount of consideration paid in excess of apro rata share shall reduce the total claim. The purpose of the Act is to prevent double recovery. The amount recoverable from the non-settling defendant when added to the amount recoverable from the settling defendant cannot exceed the plaintiff’s verdict. See Martinez v. Lopez, 300 Md. 91,476A.2d 197 (1984). The Court of Special Appeals in Exxon Corp. v. Yarema, 69 Md.App. 124, 138, 516 A.2d 990, 997 (1986), addressed the scope of § 19 and held that “the Uniform Contribution Among Tortfeasors Act does not apply to punitive damages.” We adopt the rationale of that opinion. We first note that, although Owens-Illinois and Owens- Corning Fiberglas are joint tortfeasors with regard to the compensatory damage claims, they are not joint tortfeasors with regard to punitive damage claims. In contending that each damage award should have been reduced by the entire settlement amount, Owens-Illinois fails to recognize this distinction. Examining the purposes of the UCATA in light of the inherently different functions that punitive and compensatory damages serve, it is apparent that 38a AppendixH the Act does not envision a reduction of a nonsettling tortfeasor’s liability by another’s settlement of punitive damages. The UCATA is derived, with the omission of certain sections not here relevant, from the statute promulgated by the Commissioners on Uniform State Laws in 1939 (the 1939 Model Act). Martinez, 300 Md. at 97, 476 A.2d at 200. As noted by the Court of Special Appeals in Exxon, the Commissioners’ Prefatory Note to the 1939 Model Act provides in part: “It is apparent that an injury resulting from the joint tort of two or more persons involves each of them, jointly and severally, in liability for the entire damage. It is equally apparent that this is an instance of a common obligation resting on two or more, the discharge of which by one of them accrues to the advantage of the others.” 69 Md.App. at 136, 516 A.2d at 996. We agree with the Court of Special Appeals’ conclusion in Exxon that “the drafters intended section 19 to deal with the common liability of two or more joint tortfeasors and not with the unique liability of an individual wrongdoer.” Exxon, 69 Md.App. at 136, 516A.2d at 996. Thus, the Act envisions joint tortfeasors sharing the responsibility for compensating an injured party for the harm that he or she suffered or prospectively will suffer. This, obviously, is the purpose of compensatory damages. See Restatement of Torts (Second), § 903 (1979). In contrast, the award of punitive damages is not an attempt to compensate the injured party for harm suffered, but rather is, as the name implies, punitive in nature. This Court explained in Embrey v 39a Appendix H Holly, 293 Md. 128, 442 A.2d 966 (1982), punitive damages “*... are awarded, over and above full compensation, to punish the wrongdoer, to teach him not to repeat his wrongful conduct and to deter others from engaging in the same conduct.’ ” /d. at 141, 442 A.2d at 973 (quoting Wedeman v. City Chevrolet Co., 278 Md. 524, 531, 366 A.2d 7, 12 (1976)). The Court went on to explain that punitive damages “in order to be fair and effective, must relate to the degree of culpability exhibited by a particular defendant and that party's ability to pay. Punitive damages, in essence, representa civil fine, and as such, should be imposed on an individual basis.” Jd. (293 Md.] at 141-42, 442 A.2d at 973. The Court in Embrey, recognized that punitive damages could be awarded in different amounts against each defendant or that they could be awarded against one defendant and not another, depending on evidence presented as to the degree of culpability, the existence or nonexistence of malice, and the financial worth of each defendant. Id. at 142-43, 442 A.2d at 973-74. Because acompensatory award is a joint and several liability against all the joint tortfeasors while a punitive damage award is an individual liability, the settlement of a punitive damage claim by one tortfeasor will not reduce the compensatory or punitive damage award against the nonsettling tortfeasors. Armstrong and Wood contend, and we agree, that the UCATA does not entitle Owens-Illinois to benefit from the fact that the jury found Owens-Corning Fiberglas liable for punitive damages and that Owens-Corning Fiberglas-made a payment to avoid that liability. The settlement here at issue contained two distinct liabilities and reflected settlement of both liabilities separately. Owens-Illinois argues that allowing a plaintiff to apportion his or her settlement between compensatory and punitive damages invites abuse. 40a AppendixH In the instant case, to settle the compensatory damage claims, Owens-Corning Fiberglas paid to each plaintiff its full pro rata share of the compensatory damages assessed by the jury. There was no “abuse,” chicanery, or collusion. Instead, Owens-Corning Fiberglas was clearly attempting, in good faith, to separately settle its compensatory damage liability and its punitive damage liability. Consequently, we affirm the Court of Special Appeals’ judgment that the trial court did not err when it reduced Owens- Illinois’ liability only by the amount of the compensatory settlement. PUNITIVE DAMAGES The jury award of punitive damages in the instant case must be reversed. In Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), we stated “the ‘clear and convincing’ standard of proof for punitive damages in tort cases applies to the instant cases [and] to the two cases heard by us the same day . . .” One of the two cases heard the same day as Zenobia, to which that opinion refers, is the instant case. Consequently, for the reasons stated in Zenobia, we shall reverse the awards of punitive damages and remand the cases for new trials on the issue of punitive damages. The plaintiffs will be required to prove their entitlement to punitive damages by clear and convincing evidence based on the standards set forth in Zenobia. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR NEW TRIALS LIMITED TO THE ISSUE OF PUNITIVE DAMAGES. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID TWO-THIRDS BY PETITIONERS AND ONE-THIRD BY RESPONDENTS. 4la APPENDIX I — DECISION OF COURT OF APPEALS OF MARYLAND OPINION, OWENS-ILLINOIS V. ZENOBIA, 325 MD. 420, 469, STATING CLEAR AND CONVINCING STANDARD OF EVIDENCE TO BE APPLIED IN PUNITIVE DAMAGE AWARDS 601 A.2d 633 OWENS-ILLINOIS, INC. etal. 7h William ZENOBIA, Sr. etal. No. 66, Sept. Term, 1991. Court of Appeals of Maryland. Feb. 14, 1992. Reconsideration Denied March 11, 1992.* 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. *The addendum to this opinion denying Motion for Reconsideration can be found at 325 Md. 665 and 602 A.2d 1182. 42a Appendix! 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, Caroiyn J. Moses, Church & Houff, PA, Baltimore, amicus for Center for Claims Resolution. James R. Eyler, John P. Sweéney, Gregory L. Lockwood Miles & Stockbridge, Baltimore, amicus for Owens-Corning Fiberglas Corp. Clifford C. Cuniff, Baltimore, for respondents/cross petitioners. Peter G. Angelos, PatriciaJ. 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. 43a Appendix! 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 asbestoses. 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.' 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 1. All other defendants named by both plaintiffs in the original complaints and subsequent amended complaints had either been granted summary judgment before the trial or had settled prior to or during the trial. 44a Appendix I employed as acleanup 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 32,500, 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 daimages 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’ crossclaims for contribution against ali 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. 45a Appendix I 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.* 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 hada 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 2. Before argument in the Court of Special Appeals, the defendants Celotex Corp. and Eagle-Picher Industries, Inc., filed a bankruptcy petition. All further proceedings in the cases against Eagle-Picher Industries and Celotex Corp. were automatically stayed. 46a Appendix! 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 acontinuing 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. We note that there were numerous issues which were raised and decided in the Court of Special Appeals but which were not raised in this Court. For example, in the Court of Special Appeals all of the defendants now before this Court had argued that the evidence was insufficient to show that the defendants’ activities were substantial factors in causing the plaintiffs’ injuries. In this Court, the defendant Anchor Packing Co. is the only defendant raising this issue, and it asserted only that “Zenobia failed to prove that Anchor’s product contained asbestos or that Zenobia was regularly or frequently exposed to respirable asbestos dust from an Anchor product.” (Anchor’s conditional cross-petition fora writ of certiorari, p. 16). 47a Appendix] 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.* 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 clement 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 undera theory of strict liability, a plaintiff must show: 4. The defendants Anchor Packing Co., MCIC, Inc., Porter Hayden Company and Owens-Illinois object to the admission of the deposition testimony of Dr. Mancuso. The defendant Owens-Illinois also objects to the admission of the deposition testimony of Mr. John Humphrey, Mr. Louis Pechstein and Dr. Kenneth Smith. Dr. Mancuso is a medical doctor who served as an industrial hygiene consultant to the Philip Carey Co. (predecessor to Celotex Corp.) in 1962 and 1963. Mr. John Humphrey was President of the Philip Carey Co. from 1948 to 1967. Mr. Louis Pechstein was in charge of corporate records, claims and studies for the Philip Carey Co. from 1955 to 1979. Dr. Kenneth Smith was the medical director for Johns-Manville Corp. from 1944 to 1966. 48a Appendix I “(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 acause 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, Commenta(1965). When aproductis alleged to be defective because of a failure to give an adequate warning, however, many courts have relied on Comment j of § 402A. Comment } 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, noris it unreasonably dangerous.” * Several courts have acknowledged that the language in 5. Those jurisdiction which hold that evidence of knowledge of dangerous quality is relevant ina failure to warn case, do not regard lack of knowledge as a factor in a strict liability design defect case. See 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, 378 n. 14(1984). , 49a Appendix I 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 Il.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 50a Appendix I the Fourth Circuit in Lohrmann y. 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 (Sth Cir.1982); Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182,1190 (Sth 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, 715 (3d Dist.1969); Woodill v. Parke Davis & Co., supra, 79 I11.2d 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. As previously indicated, this evidence concerning the presence or absence of knowledge in the expert community is called “state of the art” evidence. 6. For two competing views on the desirability of allowing a knowledge component in a strict liability case, see W. Murray, Jr. Requiring Omniscience. The Duty to Warn of Scientifically Undiscoverable Product Defects, 71 Geo.L.J. 1635, 1638 n. 21 (1983), J. Martineau, The Duty to Warn Under Strict Products Liability as Limited by the Knowledge Requirement: A Regretful Retention of Negligence Concepts, 26 St. Louis U.L.J. 125 (1981). Sla Appendix! 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.”” 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, 548-549 (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 7. Professors Henderson and Twerski argue that the difference between strict liability and negligence in a failure to warn case is entirely semantic and unnecessarily confusing. They suggest that since courts apply negligence concepts in all failure to warn cases, all such cases sound in negligence. J. Hendersonand A. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U.L.Rev. 265 (1990). We note that despite the overlap of negligence principles in a strict liability failure to warn case, strict liability differs from a negligence cause of action in that contributory negligence is not a defense toa strict liability claim. Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597-598, 495 A.2d 348, 356-357 (1985). In addition, in light of the other comments to § 402A of the Restatement (Second) of Torts, which apply in defective design, defective construction, and failure to warn cases, there are some differences between a negligent failure to warn case and a failure to warn based upon § 402A and Comment}. 52a Appendix! 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 thata knowledge component or “state of the art” is pertinent in astrict 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 isa 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) 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 53a Appendix! 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. /bid 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, 556A.2d 1 107, 1117(1989) (“[olur 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 when 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 agreed with the numerous cases holding that, for purposes of the S4a Appendix I “should have knowledge” component of comment), amanufacturer 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...” ”).° 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 8. Itus notentirely clear whether the knowledge or state of the art component ina strict liability failure to warn case is an element to be proven by the plaintiff or is an affirmative defense. Cf. Ellsworth v. Sherne Lingerie Inc., supra, 303 Md. at 592-596, 495 A.2d at 353-356 (discussing whether “misuse” of a product is a partof the plaintiff s case or an affirmative defense). Prosser and Keeton take the position that a plaintiff who seeks to recover ina strict liability failure to warn case must show that the defendant knew or should have known of the hazard about which he failed to warn. Prosser and Keeton, Torts § 99, at 697 (Sth ed. 1984). See also M. Madden, Products Liability § 10.3, at 377-378 (2d ed. 1988). On the other hand, an American Law Reports Annotation collecting cases concerning strict liability for failure to warn seems to assert that the absence of knowledge of the danger is an affirmative defense which must be proven by the defendant. C. Marvel, Annotation, Strict Products Liability: Liability, For Failure to Warn as Dependent on Defendant's Knowledge of Danger, supra, 33 A.LR. 4th 368, and cases cited therein. Many cases also refer to the knowledge component in a strict liability failure to warn case as a “defense.” (Cont'd) 55a Appendix! 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 presentat 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.’ In Huffington v. State, 304 Md. 559, 569-574, 500 (Cont'd) Itis not necessary for us to decide in this case whether the knowledge component is an element of the plaintiff's case or an affirmative defense because neither the plaintiffs nor the defendants have raised any issue in this regard. Nevertheless, we agree with those authorities, and with the Circuit Court for Baltimore City, that the knowledge or state of the art component is an element to be proven by the plaintiff. Ina strict liability failure to warm case, the alleged defect is the failure of the seller to give an _ adequate warning. The seller, however, need not give any warning if the requisite state of the art or knowledge does not require it. Thus, where a product lacks a warning because of insufficient knowledge on the part of the manufacturer or in the scientific field involved, the product is not defective. As defectiveness is an element to be proven by the plaintiff, the knowledge or state of the art component is not an affirmative defense. See Ellsworth v. Sherne Lingerie, Inc., supra, 303 Md. at 597, 495 A.2d at 356. 9. Maryland Rule 2-419(a)(3)(C) provides that deposition testimony may be used when the deponent is unavailable. Rule 2-419(c) further (Cont'd) 56a Appendix! A.2d 272, 277-279 (majority opinion), 304 Md. at 597, 500A.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.'® See also Grandison v. State, 305 Md. 685, 734-735, 506 A.2d 580, 609-610, cert. denied, 479 U.S. 873, 107 S.Ct38, 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. 1253,104S.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 (Cont'd) “Deposition Taken in Another Action.—A deposition lawfully taken in another action may be used like any other deposition if the other action was brought in any court of this State, of any other state, or of the United States, involved the same subject matter, and was brought between the same parties or their representatives or predecessors in interest.” Although Rule 2-419(C) applies only whea the deponent is unavailablethe Court of Special Appeals held that because the defendants did not object to the depositions on this ground, they had waived the objection. No party has challenged before us this ruling by the Court of Special Appeals 10. Federal Rule of Evidence 804(b)( 1) provides: “Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” 57a Appendix! sense, of privity.”’ Accordingly, the court explained the former testimony hearsay exception contained in 804(b)(1) as follows (/bid., 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 (Sth 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). 58a Appendix 1 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 (Sthed. 1984), emphasis added): “It is commonly said that a product can be 59a Appendix! 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 failedtowarn.... “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) (“Itis 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 60a Appendix | 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." 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 11. The supplier/installers in the present case disagree that, with respect to the strict liability claims of the plaintiffs, the suppliers/installers and the manufacturers have the same interests concerning a deposition on state of the art. The supplier/ installers argue that, whereas a manufacturer may be strictly liable to the plaintiffs if the product failed to contain warnings which were dictated by the state of the art, an _ intermediate supplier of the same product is not strictly liable to the plaintiffs unless he- knew or, based on information actually given to him, should have known that a warning was required. While there might be merit in this argument if the plaintiffs’ cause of action were based on negligence, as pointed out above the argument is inconsistent with the principles of strict liability under § 402A of the Restatement even as modified by Comment j. Furthermore, the defendants cite no cases, and we are aware of none, supporting the defendants’ view of an intermediate seller’s liability to a plaintiff in a strict liability cause of action. We would agree that there is a circumstance when the interests of a supplier/ installer and a manufacturer would not be the same in examining adeponent such as Dr. Mancuso. To the extent that the deposition might relate to an indemnity claim by the supplier/installer against the manufacturer, it would be to the supplier/installer’s benefit to elicit testimony that, whereas expert medical and scientific information existed so as to warrant a warning by manufacturers, such information was not generally known outside the scientific community and would not have been readily available to non- manufacturing suppliers/installers. In the instant cases, however, the defendant suppliers/installers complain solely about the admission of the Dr. Mancuso deposition at the trial of the plaintiffs’ claims. They have made no complaint about the evidence at the separate cross-claims trial. 6la Appendix! 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. F ibreboard 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 acritical 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 (/bid.) (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 ai 62a Appendix! 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- 186,512A.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 expo sure in addition to statements about the results of experiments conducted by experts on behalf of the Johns-Manville and Philip Carey Companies. 63a Appendix! 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. z 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 asmoker and smoking aggravated the development of asbestoses, 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 64a Appendix I time of sale. As this Court stated in Rekab, Inc. v. Frank Hrubetz & Co., 261 Md. 141, 146,274A.2d 107, 110(1971), quoting 1 Frumer and Friedman, Products Liability § 8.02, at 148.3, “‘[e]venif there is no duty to warn at the time of the sale, facts may thereafter come to the attention of the manufacturer which make it imperative that a warning then be given.’” See, e.g., LaBelle v. McCauley Ind. Corp., 649 F.2d 46, 48-49 (Ist Cir.1981); Fell v. Kewanee Farm Equipment Co., 457 N.W.2d 911, 920 (lowa 1990); Comstock v. General Motors Corp., 358 Mich. 163, 176, 99 N.W.2d 627, 634 (1959); Feldman vy. Lederle Laboratories, 125 N.J. 117, 144, 592 A.2d 1176, 1190 (1991) (“a manufacturer is obligated to communicate a warning based on_ subsequently-acquired knowledge of the danger as soon as reasonably foreseeable”); Smith v. Selco Products, Inc., 96N.C.App. 151,158, 385 S.E.2d 173,176- 177 (1989), review denied, 326 N.C. 598, 393 S.E.2d 883 (1990) (“A manufacturer does not completely discharge its duty-to warn simply by providing some warnings of some dangerous propensity of its product at the time of sale. Acontinuing duty exists to provide post-sale warnings of any deficiencies it learns exist in the product”). Therefore, if a manufacturer discovers a product defect after the time of sale, the manufacturer must make-reasonable efforts to issue a post-sale warning. Rekab, Inc. v. Frank Hrubetz & Co., supra, 261 Md. at 147,274A.2d at 111, quoting Levin v. Walter Kidde & Co., Inc., 251 Md. 560, 564, 248 A.2d 151, 154 (1968) (“The duty owed is a reasonable warning”). See also Comstock v. General Motors Corp., supra, 358 Mich. at 176, 99 N.W.2d at 634 (General Motors had a duty to “take all reasonable means to convey effective warning”). Owens-Illinois does not argue that Rekab, Inc. v. Frank Hrubetz & Co., supra, was wrongly decided. In fact Owens-Illinois acknowledges its continuing duty to warn of defects. Nonetheless, it contends that, as a matter of law, its continuing duty to warn 65a Appendix I ceased when it stopped manufacturing asbestos products in 1958. Owens-Illinois relies on the assertion that “state of the art” information about the hazards of asbestos was no longer available to itafter 1958. Alternatively, Owens-Illinois contends that even if it had known of the hazards of asbestos after 1958, it had no reasonable means of communicating a warning to the users of its products, including the plaintiff Zenobia. We cannot agree with Owens-Illinois’ reasoning.'? As previously stated, the post-sale duty to warn requires reasonable efforts to inform users of the hazard once the manufacturer is or should be aware of the need for a warning. Owens-Illinois was not precluded from showing that it did not become aware of the need for a warning or that, in light of the fact that it no longer manufactured the product, it made reasonable efforts to warn. The Supreme Court of Washington addressed this issue in Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 606 (1987). The plaintiff Lockwood had asbestoses as a result of his exposure to a Raymark Industries product. Raymark argued that documents revealing what it knew about the hazards of asbestos after 1972 were irrelevant because Lockwood’s last exposure preceded 1972. The court rejected this argument, stating (109 Wash.2d at 260, 744 P.2d at 691): “(W]e believe that if Raymark had made a 12. The defendant Anchor Packing Co., Inc., makes a similar argument based on the fact that the plaintiff Zenobia was not exposed to asbestos products supplied by Anchor after 1953. Anchor argues that because Zenobia was no longer a user of the product, no reasonable effort to warn would have reached him. Our reject'on of Owens- lilinois’ continuing duty to warn argument also applies to Anchor Packing Co.'s argument. en ar 66a Appendix! reasonable effort to provide Lockwood with the information it acquired about the dangers of asbestos exposure after his retirement, the seriousness of his injury might have been reduced. Under those circumstances, Raymark had acontinuing duty to warn Lockwood of the known dangers of its product after he was no longerexposed to it.” The court cautioned that the “warning should be required to the ex.ent practicable” under the circumstances. The fact that a manufacturer or seller has discontinued its asbestos product line, and the fact that the plaintiff was no longer exposed to its product, are not circumstances which should necessarily relieve the seller of its duty to warn. Rather, these factors are relevant to a determination of what reasonable efforts to discover the danger and to warn are required."’ A seller is not entitled to automatic relief from its continuing duty to warn merely because it no longer manufacturers a defective product. Ill. The defendant Anchor Packing Co. makes two additional arguments. It asserts that because the verdict for compensatory 13. See V. Schwartz, The Post-Sale Duty to Warn Two Unfortunate Forks in the Road to a Reasonabie Doctrine, 58 N.Y .U.L.Rev. 892, 896 (1983): “[T)he facts of a particular case, such as the gravity and likeliehood of harm, the number of persons