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Family members exposed to deadly asbestos dust via the clothing of a loved one were delivered a significant blow recently when a federal multidistrict litigation judge ruled Pennsylvania law doesn’t support the imposition of duty to warn in a take-home asbestos exposure case.
The opinion in Gillen v. Boeing Company is expected to have an impact not only on pending cases in that jurisdiction, but other jurisdictions as well. Our asbestos lawsuit attorneys recognize the basic legal reasoning is that plaintiffs are in essence “legal strangers” under negligence law. Alleged exposure to fibers (at least in this case) occurred in the home, and not in the workplace.
Plaintiff argued this was not a typical take-home exposure case because she was also employed by the company as a secretary for a period of time, in addition to the fact that her husband worked there as a mechanic. However, plaintiff hadn’t argued exposure occurred during her work as a secretary. Rather, it was asserted she breathed the material while laundering her husband’s clothing.
These kinds of second-hand exposure cases have been successfully brought by spouses, children and others routinely in close proximity with a person who endured primary exposure. The second-hand exposure occurred often in the course of doing laundry, but also when coming into contact with asbestos fibers in the family car or while using the worker’s tools.
However, establishing a connection for liability in these cases is more complicated than for workers directly employed by a firm. In the Illinois case of Simpkins v. CSX, the Illinois Supreme Court, like many others, focused on whether the defendant owed a duty to the decedent, and in particular whether risk of injury was foreseeable at the time of exposure. In that case, a woman was suing on behalf of her deceased mother, who was married to plaintiff’s father between 1958 and 1964. The father routinely brought asbestos dust home on his clothing.The court rejected the contention that a direct relationship needed to exist in order for a duty to be established.
Another case out of California upheld this same principle in a ruling last October. In Swanson v. Simpson Timber Company, the California Court of Appeal for the Second Appellate District, Division Three, ruled that to hold a premises owner has a duty to protect someone from off-duty exposure (specifically arising from association with a family member who wore home clothing contaminated with asbestos) would be to imposed “limitless liability on premises owners.”
In weighing the existence of duty, courts generally will look at the foreseeability of harm to the plaintiff, policy considerations, extent of the burden on defendant and consequences to the community from the imposition of duty.
In CSX Transp., Inc. v. Williams, the Georgia Supreme Court in 2005 declined to extend a duty to the spouse and children of a worker who alleged off-site contact with his work clothing made them all sick. The court ruled as a matter of public policy (not just foreseeability) no duty existed where plaintiffs did not work for defendant.
Despite a seeming shift in favor of defendants in these matters, there are still some court victories for plaintiffs. For example, in Griggs v. Allied Packing & Supply Co., the California Superior Court of Alameda County awarded $27 million in June 2013, to a plaintiff who was exposed to asbestos, and later developed mesothelioma, from exposure to her pipe-fitter husband’s clothing.
In Connecticut, the Superior Court of Connecticut ruled in Russo v. A.O. Smith Corp. defendants could be liable for take-home exposure. Similarly in Catania v. Anco Insulations Inc., a federal court in Louisiana found a duty of care was owed by an asbestos defendant to the niece of several employees. The court rejected defense arguments that the risk was not foreseeable and set aside the fact that plaintiff was not a member of the workers’ households.
New Jersey, too, recognizes the take-home defense. The 2006 case of Olivo v. Owens-Illinois, Inc., weighed by the New Jersey Supreme Court, upheld a reversal of summary judgment in favor of the defendant/premises owner, holding it was foreseeable the deadly fibers might be carried home on the clothing of a person working within its vicinity.
However, New York has denied the take-home defense for the plaintiffs in In re New York Asbestos Litigation, arguing foreseeability can only be weighed once a duty is found.
The bottom line is the recent ruling in Pennsylvania should not be taken as the final word on the matter. Eventually, we may anticipate a U.S. Supreme Court ruling to settle the various legal theories and conflicting decisions. In the meantime, it’s important to consult with an experienced mesothelioma attorney to determine how to best proceed with your case.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling (888) 554-2030. Offices in Miami and Washington, D.C.
Asbestos MDL judge rules Boeing owed no duty to spouse for take-home exposure, Sept. 4, 2014, By Heather Isringhausen Gvillo, Legal Newsline
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