Employers Liable for Take-Home Asbestos: Calif. High Court

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By Steven M. Sellers

Dec. 1 — California employers and premises owners have a duty to protect family members from asbestos brought home on the clothing of on-site workers, the California Supreme Court ruled Dec. 1 ( Kesner v. Super. Ct. Alameda Cty. , Cal., No. S219534, 12/1/16 ; Haver v. BNSF Ry. Co. , Cal., No. S219919, 12/1/16 ).

Ruling unanimously in two cases, the state’s top court said the duty to exercise “ordinary care” extends only to members of a worker’s household.

Ted Pelletier, of Kazan, McClain, Satterley & Greenwood in Oakland, Calif., who represented Johnny Kesner, told Bloomberg BNA in a Dec. 1 e-mail the decision “simply holds that industrial companies must take reasonable steps to protect everyone from being poisoned, not just workers on their premises but those off the premises like their families.”

Micheal Gurien, of Waters, Kraus & Paul in El Segundo, Calif., who represented Lynne Haver and other plaintiffs told Bloomberg BNA Dec. 1 the ruling “rightfully recognizes that employers and landowners can be held legally responsible for the devastating injuries and deaths suffered by household members of workers from the negligent and careless use of asbestos in the workplace.”

Lisa Perrochet, of Horvitz & Levy in Burbank, Calif., who argued the appeal for Pnuemo Abex, was unavailable for comment Dec. 1.

A request for comment sent to Theodore Boutrous Jr. of Gibson, Dunn & Crutcher in Los Angeles, counsel for BNSF Railway, wasn’t immediately successful Dec. 1.

The closely-watched cases were brought by family members of Pneumo Abex LLC and BNSF Railway Co. employees. They alleged their mesothelioma diagnoses resulted from exposure to asbestos dust on the employees’ work clothing.

‘Common Experience and Knowledge.’

“Common experience and knowledge” dictated the conclusion that any dust may be carried from place to place on clothing, and therefore gives rise to “the general risk posed by workers leaving an area with airborne dust-based toxins and then coming into contact with members of their households,” said Associate Justice Goodwin Liu, who wrote for the seven-member court.

Occupational Safety and Health Administration regulations issued in in the 1970s were a prominent feature in oral argument of the appeals Sept. 7, and they also factored into the decision.

Those regulations, several members of the court said at oral argument, counseled employers to take precautions to minimize the transfer of asbestos fibers in workplace showers, locker rooms and laundry facilities.

The regulations belied defense claims that there was no scientific consensus about the risks of take-home asbestos, the court said.

Defense predictions that allowing take-home tort liability would dramatically increase the volume of asbestos litigation didn’t persuade the court.

The answer, it said, “is that shielding tortfeasors from the full magnitude of their liability for past wrongs is not a proper consideration in determining the existence of a duty.”

Concerns about a flood of new litigation also were tempered by limiting the duty to a worker’s household members, shrinking the pool of potential plaintiffs to those “most likely to have suffered a legitimate, compensable harm,” the court said.

The court drew a distinction, however, between workplaces “owned or controlled by the defendants” and product liability defendants.

“Product liability defendants, by contrast, have no control over the movement of asbestos fibers once they are sold,” the court said.

Industry Defeat

Johnny Blaine Kesner alleged in Kesner v. Super. Ct. of Alamenda Cty. that his mesothelioma was caused by exposure to asbestos brought home by his uncle during three decades of working for Pneumo Abex.

A California court of appeals ruled Abex owed Kesner a duty of care, but another court of appeals reached the opposite conclusion on similar facts.

In Haver v. BNSF Railway Co., the court held that BNSF owed no such duty to Lynne Haver for exposure to asbestos dust on her husband’s clothing.

Pneumo Abex and BNSF had substantial amicus support in the appeals, including briefs filed by the U.S. Chamber of Commerce, American Manufacturing Association and the American Tort Reform Association.

States Split?

Different conclusions among other state courts on take-home asbestos liability “reflect underlying differences in the duty doctrine in the respective states, not a split between a majority and a minority position on the ultimate policy issues,” the court said.

New Jersey, Tennessee, Louisiana and Washington are among states that have recognized a premises owner’s obligation to household members in take-home asbestos cases. But courts in Arizona, Delaware, Georgia, Illinois, Ohio, Michigan and Texas are among those that have declined to find such a duty of care.

But even in no-duty states, litigation over corporate liability for asbestos products continues.

In CertainTeed Corp. v. Fletcher, a Georgia case, Marcella Fletcher attributed her mesothelioma to years of laundering her father’s dusty clothing after he worked on asbestos-laden pipe manufactured by CertainTeed.

A unanimous Georgia Supreme Court rejected Fletcher’s failure-to-warn claim Nov. 30, but allowed defective design claims against the company to proceed (see related story).

Justice Goodwin Liu wrote the opinion, joined by Justices Kathryn Mickle Werdegar, Ming W. Chin, Carol A. Corrigan, Mariano-Florentino Cuéllar and Leondra R. Kruger.

The law offices of Waters Kraus & Paul represented Joshua Haver, successor in interest to Lynne Haver.

Weitz & Luxenberg, as well as Kazan McClain Satterley & Greenwood represented Johnny Blaine Kesner Jr.

Horvitz & Levy, as well as Brydon Hugo & Parker represented Pneumo Abex LLC.

Gibson Dunn & Crutcher, as well as the Sims Law Firm represented BNSF Railway Co.

To contact the reporter on this story: Steven M. Sellers in Washington, D.C. at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

For More Information

The decision is available at: http://src.bna.com/ksa

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