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By Peter Hayes
May 18 — As high courts on the East and West Coasts ponder premises owners' duty to people exposed to toxic substances brought home on a worker's clothing, the states remain divided over whether to allow such claims, and if so, by whom.
Plaintiffs' and defense counsel agree that as the workers directly exposed to asbestos have died off, an increasing percentage of asbestos suits are being brought by plaintiffs indirectly exposed, at home.
While defense counsel say take-home exposure suits threaten “limitless liability,” plaintiffs' attorneys say a focus on the method of exposure is misplaced.
Spouses are the most common plaintiffs in third party take-home actions, but suits have also been filed by other family members—children, nephews and grandchildren—and in at least one case, a worker's girlfriend.
That lawsuit, brought by the girlfriend of an employee who allegedly brought beryllium home on his work clothes, was recently argued before the New Jersey Supreme Court, in Schwartz v. Accuratus Corp., N.J., No. 076195, argued 4/25/16 (31 TXLR 393, 4/28/16).
“We're just beginning to see more of these claims being asserted,” defense counsel Carter Strang with Tucker Ellis LLP in Cleveland told Bloomberg BNA.
“Until courts draw a bright line, these will continue,” he said.
“Where do you cut off liability?” asked Professor Lester Brickman—a critic of asbestos lawsuits—at the Benjamin N. Cardozo School of Law in New York.
“When you expand liability, what about fourth parties?” he asked. “What if a maid who launders asbestos-laden clothes lives with a man in another house and he gets mesothelioma?”
But plaintiffs' counsel see the “limitless liability” argument as an attempt to evade responsibility.
“The premise of the defense argument is `we may sicken so many people there will be no end to it,' ” asbestos plaintiffs' attorney Jonathan Ruckdeschel with the Ruckdeschel Law Firm in Ellicott City, Md., told Bloomberg BNA.
“Everybody agrees that if you're spewing pollutants you're responsible for them. But defendants say that if the vehicle on which the pollutant leaves the factory is the workers' clothes then they're not liable. That doesn't make any sense,” Ruckdeschel said.
Tennessee, Louisiana, New Jersey and Washington are among the states that have recognized a premises owner's obligation to household members.
But courts in Delaware, Georgia, Illinois, Maryland, Michigan, New York, Ohio, Texas, Pennsylvania and Kentucky haven't found a duty.
California courts have allowed premises owner suits by third parties, but the state's appeals courts split on the issue.
The California Supreme Court is set to consider premises owner duty in Haver v. BNSF Ry. Co., Cal., No. S219919 as well as product manufacturer duty in Kesner v. S.C. (Pneumo Abex), Cal., No. S219534 (30 TXLR 460, 5/7/15). The cases have been consolidated for oral argument and placed on the September 2016 calendar.
The Arizona Court of Appeals is considering a take-home asbestos suit brought by the child of a worker in a case set for oral argument May 25, Quiroz v. Alcoa, Ariz. Ct. App., No. 15-0083, argument scheduled 5/25/16.
“The divide is over the issue of ‘foreseeability,' ” Professor Brickman said.
“Courts that reject expanding a duty, such as New York, view duty as independent of foreseeability,” Brickman said. “ The states that chose foreseeability as the standard for determining take-home liability end up finding liability.”
“But the words ‘duty' and ‘foreseeability' are really ways of the judges expressing their personal preference,” he said. “Courts are giving rhetorical reasons for scope of liability.”
The New Jersey Supreme Court, in Olivo v. Owens-Illinois Inc., 895 A. 2d 1143 (2006), ruled that a spouse's suit could proceed because it was foreseeable that asbestos might be brought home on a worker's clothing. The court in Accuratus is now weighing whether Olivo extends to the girlfriend of a worker who brought beryllium home on his work clothes.
During oral argument April 25, the court in Accuratus asked whether a “family” includes a non-married couple.
“The problem is where do you draw the line?” defense attorney William A. Ruskin with Gordon & Rees in New York asked.
“Do you draw the line at family members? Should a bus driver be able to sue if workers from the Exxon plant get on a bus? What about a babysitter?”
“Plaintiffs argue that duty should be determined by what is foreseeable. But by that measure, it's limitless,” Ruskin told Bloomberg BNA.
“I don't think the issue that's important with take-home cases is about non-traditional families,” he said.
“If this was a married gay couple, I wouldn't foreclose a remedy. What's important is whether take-home exposure cases—particularly premises owner—should be expanded in ways courts seem to be expanding this,” Ruskin said.
Ruckdeschel, however, says the fear of limitless liability is unfounded.
“The law has a mechanism against the slippery slope—the well-developed law of causation in toxic torts,” he said.
“What does it matter if Mrs. Johnson is a wife or a nurse? If she can establish exposure, why shouldn't they be liable?”
“Necessarily, the defendants are conceding that causation is established, but they should get a walk anyway,” Ruckdeschel said.
“They're asking for a windfall that shifts the burden from the wrong-doer to the sick person and ultimately to the taxpayers,” he said.
Attorneys say take-home suits comprise a greater percentage of asbestos litigation than they did 15 years ago, but quantifying the suits by exposure type is difficult.
“There are fewer total asbestos suits being filed. But as the more heavily-exposed workers have died, what we're seeing now are wives and children who had a longer and lighter exposure with a longer latency period getting sick,” Ruckdeschel said.
“I believe there has been an uptick in take-home cases, but it is not yet a dramatic one,” said defense attorney William Anderson with Crowell and Moring in Washington, D.C.
The number of filings by take-home plaintiffs is difficult to track because courts don’t report their asbestos case dockets in that way, Anderson said.
“The trend line for mesothelioma would indicate that as a greater percentage of persons with the disease increasingly are women (because the asbestos-exposed male worker cohort is aging out), we will see more female and thus more take-home cases,” Anderson said.
As asbestos litigation continues, attorneys say the universe of take-home liability may be expanding.
While the bulk of premises liability take-home cases have been asbestos suits, similar claims could also be brought for other toxins.
“It could be possible to make these claims in silica cases,” Anderson said. “And if talc cases take off, we could see those becoming take-home as well.”
“We could see take-home suits for silica, talc and PCBs,” Strang agreed.
To contact the reporter on this story: Peter Hayes at firstname.lastname@example.org
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