'Take home' liability could mean limitless liability for asbestos defendants

By The Madison County Record | Mar 20, 2009

Lively During a recent gathering of asbestos legal professionals, a Beverly Hills conference focused on one central theme in emerging litigation trends: a new generation of problems -- connected to the last -- will mean a new wave of cases against a new slate of defendants.



During a recent gathering of asbestos legal professionals, a Beverly Hills conference focused on one central theme in emerging litigation trends: a new generation of problems -- connected to the last -- will mean a new wave of cases against a new slate of defendants.

With more than three decades past since the peak of asbestos manufacturing and use in the U.S., the focus of lawsuits has shifted to what is often called "secondary exposure cases." These cases are filed on behalf of a new slate of plaintiffs, many a generation removed from those that comprised the height of asbestos litigation in the late 1990s when hundreds of thousands of cases were filed each year.

Likewise, the defendants include new businesses, most at least a step removed from the manufacturers, shipyards and refineries already forced into bankruptcy under the weight of billions paid in legal settlements.

With many of the first wave of plaintiffs deceased, and the businesses they sued bankrupt, it is no surprise the vast industry of asbestos lawyers would now be uncovering new cases along previously un-trod trails.

One such trail emerging as a potential highway of asbestos cases is take home liability cases. Commonly, these plaintiffs include everyone from children and spouses of those who worked around asbestos, babysitters who entered the employee's home, or independent contractors who worked with products containing asbestos.

Texas plaintiff attorney Shepard Hoffman described one form of take home liability extending "to those who regularly and repeatedly came in to contact with employees' work clothing consistently over a period of time."

New York attorney John Canoni said defendants in these cases have taken notice, raising in court their serious concern over the "specter of limitless liability."

New cases, new plaintiffs

The legal war over how courts will interpret the limits and legal responsibility in take home liability cases is now pitched in state-by-state battles. Some states, like Washington, Tennessee, New Jersey and Louisiana have ruled that companies have a duty to protect and warn those who may become exposed to asbestos beyond their own employees, according to Chicago defense attorney Jonathon Lively.

Others, notably, New York, Georgia, Kentucky, Texas, Michigan and Delaware have ruled against such duty. Many states, including Illinois - and in which Madison County continues to be one of the larger asbestos dockets in the country -- are still hearing the cases that will determine the eventual legal precedence.

The cases that are setting the stage offer a glimpse into the next generation of clients.

"The housewife is the number one occupation listed for those now contracting mesothelioma," West Virginia plaintiff attorney Anne Kearse said.

A Tennessee case involved a woman who died at the age of 24 after being exposed to asbestos from her father's work clothes. The woman was born premature and spent three months in the hospital where her father would come and hold her every day on his way home from work, Lively said.

Another case involves a plaintiff who was exposed to asbestos as a child from wrestling around with his father after work.

Canoni cited one of the most recent cases, a ruling from the Delaware Supreme Court earlier this month. Lillian Riedel sued ICI Americas, Inc., her husband's employer for nearly 30 years, for failing to warn her of the dangers of asbestos exposure from her husband's clothing.

"Does the employer owe a duty of care to the injured party who they may or may not have ever known, nor ever employed?" Canoni said.

According to court documents, the court ruled against Riedel, granting ICI's request for summary judgment "on the basis that ICI and Mrs. Riedel did not share a legally significant relationship that would create a duty ICI owed to her."

But that legal victory of the defense in Delaware is offset by plaintiff victories along similar lines in other states, notably Washington.

Lawyers G. William Shaw and Michael K. Ryan wrote, "In a pair of closely watched asbestos cases, the Washington Court of Appeals on January 29, 2007 greatly expanded the duty to warn in asbestos cases."

The twin rulings in favor of plaintiffs found that a product manufacturer whose products do not include any asbestos is still responsible for exposure if the normal use of the product would cause them to become exposed from another source.

The court ruling "may have a direct impact on defendant manufacturers whose products may have required the use of asbestos-containing products to function properly," they wrote, which in turn, greatly expands the company's duty to warn about the exposure to asbestos. The ruling also greatly increases the pool of defendants that can be named in Washington asbestos cases.

Potential liability in states where duty to warn is expanded could soon extend to babysitters, school teachers and neighbors who could have been exposed by someone who worked around asbestos, according to asbestos conference presenters. The number of businesses who could be sued in asbestos cases is also greatly expanded, even to the point of including "mom and pop stores," one presenter at the conference said.

The cases with extended duty to warn are cropping up in asbestos dockets across the country. A brief review of cases filed recently in Madison County, shows the subtle shift to the next generation of plaintiffs.

For example, among the 13 cases filed in Madison County in a single week in February, few are direct lawsuits on behalf of a sick worker suing a former employer. One such example involves a lawsuit filed by Christine Warner of Tennessee on behalf of her mother who developed mesothelioma during her work as a seamstress at House of Fashions in Memphis for more than 30 years.

But most are less specific as to when and where the person was exposed to asbestos, likely built on duty to warn case law.

Pat Montgomery of Kentucky claims he developed mesothelioma after helping his father on the family farm for six years during the 1950s. An Illinois woman claimed in her suit filed in Madison County that she developed mesothelioma after being exposed through her husband.

Defending the case

The most important steps in defending against take home liability often occur early on in how the case is framed by the courts, according to Lively. The duty to warn is often determined by whether the court sees the case as one of misfeasance, poor action to warn, or nonfeasance, no action to warn.

"How a case gets framed in front of the court is going to greatly determine how it is going to end up," Lively said during the asbestos conference.

The Delaware ruling involving Lillian Riedel, Lively said, was an example of the court assessing the failure to warn as nonfeasance, essentially ruling they had no duty to warn her of the potential exposure from her husband's work clothes.

Other cases where courts have ruled the company had a duty to warn and acted poorly to do so have led to plaintiff victories, the case of the 24-year-old woman from Tennessee for example, Lively said.

The outcomes of these cases differ greatly from state to state.

Hoffman said that despite the changing nature of the cases, juries still focus on the plaintiff and the harm done to them.

"Juries want to find a way to help out a family," he said, arguing that plaintiff attorneys must simply show the "contributing factors to a person contracting mesothelioma," and "the basis to hold the initiating company responsible."

Companies knew the dangers of asbestos, even on clothing leaving the plant for decades, Hoffman said, citing examples of safety measures that were commonplace.

"A study in 1913 discusses worker safety, of the need for lockers and showers and a change of clothes for workers before going home," Hoffman said.

While defense attorneys often point to 1972, when OSHA issued protocols to be followed regarding asbestos exposure, Kearse said that premise can be challenged in court.

"There's a lot of information out before OSHA," Kearse said, starting with a report in 1937 that talks about safety policies related to asbestos.

"It was known and knowable how dangerous this was to work with," she said. "West Virginia had regulations in place since 1951, but it was rarely followed, if at all."

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