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“Take-Home” Asbestos Exposures to be Taken Down a Notch?

As asbestos litigation wends into its fifth decade, theories of liability continue to widen to now encompass previously uncommon plaintiff pools like family members of workers and previously unexplored defendants, such as talc-containing feminine hygiene products. As to the former, increasing numbers of plaintiffs claim they suffered exposure to asbestos through contact with respirable fibers that were transported from the jobsite to the home on the worker’s contaminated clothing. Defendants, including contractors and premises owners, sued in this sort of take home exposure cases are confronted with allegations regarding the use of their products by the industrial worker, as well subsequent contact between the plaintiff and the worker and his/her clothing and other purportedly contaminated spaces like the family car.

Important questions remain in California, and across the country, regarding the scope of defendants’ duty to those living with industrial workers to protect from asbestos via “take home” (also known as “secondary” or “para-occupational”) exposures. In fact, last month the California Supreme Court heard oral argument in the Haver and Kesner cases, which both presented the question, “If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?” We expect that the Supreme Court will issue opinions in these cases near the end of the year, impacting many cases in the state’s asbestos docket and shaping asbestos litigation going forward.

As Haver and Kesner had been consolidated, two different plaintiff's counsel argued before the California Supreme Court on behalf of plaintiffs. One plaintiff's counsel maintained the position throughout his argument that there should be no limitation on duty and that all of these cases should be tried on causation. The other agreed with the justices that foreseeability is a factor that should be considered. However, when part of the discussion was that there are only 2,500 to 3,000 mesothelioma cases per year and only a small percentage of those are from take home exposure, one justice asked if that did not go to show that such claims are not foreseeable.

The defense counsel tried to focus the argument on the duty question. There was also a discussion of knowledge to determine reasonableness/foreseeability. Part of that discussion included whether the OSHA regulations in 1972 that required changing rooms to limit take home exposure should be the standard. There was also a discussion of whether only mesothelioma should be allowed as it is a low dose disease compared with other asbestos-related diseases.

Overall, it seemed that the justices appeared to favor putting some limit on the scope of duty as oral argument involved several hypotheticals that explored possible boundaries. A decision on how California views a defendant’s duty to household members will be a welcome clarification on this increasingly common scenario of alleged exposure.


[About the Authors: Florence McClain is a partner who practices Environmental and Toxic Tort litigation as well as Products Liability cases in Lewis Brisbois' San Francisco office. Ms. McClain is co-chair of the firm’s national Asbestos Litigation Practice. She serves as national coordinating counsel for a number of clients, overseeing their litigation throughout the country. Allison Mullings is a partner in Lewis Brisbois' San Francisco office who specializes in defending environmental and toxic tort claims, with an emphasis in asbestos litigation.]

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