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Leave Home Without It: The Implications of Take-Home Asbestos Exposure Cases before the Supreme Court


Employers and defense counsel alike may have some added stress to take home with the weight of two asbestos cases that may alter the legal battlefield. In the fall of 2016, the Supreme Court will hear oral argument on two asbestos cases involving claims of take-home exposure and opposing decisions from their respective appellate courts: Haver vs. BNSF Railway Co., No. S219919 (Calif. Sup. Ct.) and Kesner v. S.C. (Pneumo Abex LLC), No. S219534. The decisions handed down by the Supreme Court may potentially change the landscape of asbestos litigation, giving defense counsel for these companies something extra to think about on the drive home.

In the first case, Haver vs. BNSF Railway Co., the Second District Court of Appeal rendered a decision in favor of Defendants, in keeping with the tenor of case precedent. In Haver, Plaintiff Lynn Haver ("Haver") claimed that she developed mesothelioma due to prolonged exposure to asbestos on her husband's work clothing, as he had worked with asbestos-containing products for a number of years. Defendant, BNSF Railway Co. ("BNSF"), filed a demurrer to dismiss the complaint, arguing that they did not owe a duty of care to protect Haver from asbestos exposure.

The trial court sustained BNSF's demurrer, relying on the holding in Campbell v. Ford Motor Co., and finding that a duty of care did not extend to an employee's family member. Campbell v. Ford Motor Co., 206 Cal.App.4th 15, 2012. Haver argued that the decision in Campbell was improperly applied, as its reasoning was limited to independent contractors. However, the appellate court rejected her argument, noting that the Campbell decision was not limited to independent contractors and applied to claims of negligence and premises liability.

In stark contrast, the decision reached by the First District Court of Appeal in Kesner v. S.C. strayed from Campbell's logic. In Kesner, Plaintiff, Johnny Blaine Kesner Jr. ("Kesner"), claimed that he developed mesothelioma from being exposed to asbestos in his uncle's clothing. Kesner claimed that his uncle had worked for Pneumo Abex ("Abex") for over 30 years and that he was a frequent guest in his uncle's home. The trial court granted Abex's motion for nonsuit, using Campbell's logic in finding that the duty to warn did not extend to Kesner.

The appellate court, however, reasoned that the case was distinguishable from Campbell because Kesner's claim was based on negligence, not for premises liability. It emphasized that it was substantially foreseeable for family members of an employee working with asbestos to suffer harm due to take-home asbestos exposure. Due to this foreseeability, the appellate court concluded that Abex did have a duty to warn and protect Kesner from second-hand asbestos exposure from his uncle's clothing. However, the appellate court cautioned that the existence of a duty of care does not show negligence and that factual showings, including the extent of the employer's knowledge and the reasonableness of measures to prevent take-home asbestos exposure, must still be made.

With these two decisions in direct opposition, the upcoming oral arguments before the Supreme Court this fall may have large implications on asbestos litigation. The Supreme Court will have to wrestle with the notion of extending a duty of care to family members and similarly situated individuals who may be exposed to second-hand asbestos from the clothes of their family members. This will likely involve a re-evaluation of Campbell's "no duty" rule and a determination as to whether it applies in all allegations of negligence or is relegated to claims of premises liability and independent contractors.

Moreover, employers and defense counsel alike should pay particularly close attention to the Supreme Court's discussion on the concept of foreseeability. The foreseeability discussion that took place in Campbell resulted in a ruling that there was a much attenuated connection between an employer having its employee work with asbestos and an injury suffered by the employee's family member away from the work site. This loose connection resulted in a finding of no duty in relation to the employer and an employee's family member. The upcoming oral arguments with respect to duty of care will hinge on balancing the foreseeability of family members being injured due to take-home asbestos against policy considerations of almost endless liability for employers conducting asbestos related work.

Either way, this fall, a decision by the Supreme Court could drastically affect the field of asbestos litigation. Should the Court side with the Second District, there will be a marked drop off in actions brought by family members of employees that worked with asbestos. Should the opposite occur, a litany of actions by family members claiming take-home exposure may flood the courts, increasing the likelihood of liability for various employers. The sky is not falling, however. Even if the Supreme Court were to find that a duty of care exists and extends to family members of workers, factual showings must still be made to determine the negligence of employers. In the meantime, employers should be aware of the upcoming oral arguments before the Supreme Court in the fall of 2016 and how those decisions could affect the future of asbestos litigation.

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