California Defendants in “take-home” asbestos exposure cases received valuable precedent in the recent California appellate court decision Petitpas v. Ford Motor Company, et al. (July 5, 2017, B245037, -- Cal.App.5th --). In Petitpas, Plaintiffs, Joseph Petitpas (“Joseph”) and Marline Petitpas (“Marline”) (collectively referred to as “Plaintiffs”), alleged that Marline contracted mesothelioma, in part, due to bystander exposure to asbestos-containing brakes, gaskets and clutches present at Joseph’s job site. Specifically, Plaintiffs contend that Marline was exposed to toxic chemicals: (1) when visiting Joseph at work, and (2) from “take-home” exposure present on Joseph’s clothing when he returned home from work. Importantly, Plaintiffs alleged “take-home” exposure only during a time when Marline and Joseph were dating and not living together. Ultimately, the Court ruled that Plaintiffs failed to show that Marline’s possible exposure was a substantial factor in causing her disease, and that the no duty was owed to Marline with respect to “take-home” liability since she was not a member of Joseph’s household during the exposure period.
Notably, the Court ruling expressly rejected Plaintiffs’ request to extend the California Supreme Court ruling in Kesner v. Superior Court (2016) 1 Cal.5th 1132. In that case, the Supreme Court ruled that “take-home” liability extended to a long-term guest of the worker’s home. The plaintiff was a frequent guest between 1973 and 1979, often staying the night at the worker’s home during that time. The Kesner Court reasoned that “persons who live with the worker and are therefore foreseeably in close and sustained contact with the worker over a significant period of time” are owed a duty. (Id. at 1154-55.) Plaintiff attempted to argue that the holding of Kesner applied to Marline even though she was not a member of Joseph’s household during the exposure term.
However, the Court in Petitpas interpreted Kesner narrowly; reasoning that “[take-home] duty extends only to members of the employee’s household…” Given the language of the Kesner decision, this outcome was not an obvious extension; especially because the plaintiff in Kesner was not a permanent member of that household. Although not disclosed in the Petitpas decision, it would not have been unexpected to discover that Marline also frequently stayed overnight at Joseph’s house during their courtship. In that regard, her position would ostensibly be similar to that of the “frequent guest” plaintiff in Kesner. Nevertheless, because Marline was not found to be a member of Joseph’s household during the relevant exposure period, the Court ruled that no duty was owed to her. This bright-line rule will surely aid future asbestos defendants in combating “take-home” claims raised by non-household member plaintiffs.
Interestingly, the Petitpas court also found, as a matter of law, that Plaintiffs failed to demonstrate that Marline sustained sufficient exposure, either directly or through secondary exposure, during her visits to Joseph’s workplace. In asbestos-related injury cases, “the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.) A plaintiff meets this burden by proving that exposure to defendant’s product was a substantial risk causing the illness. (Ibid.) Many factors are considered in determining whether exposure causes a substantial risk of an injury; including frequency, proximity, and duration of exposure. (Ibid.)
Specifically in Petitpas, Joseph worked primarily in an office, segregated from the construction site where purportedly harmful chemicals were in use. Plaintiffs’ strongest contention was that potentially hazardous materials hitched a ride on Joseph’s clothing while he was walking in the construction site (similar to the plaintiff in Kesner). However, the Court noted that there was no evidence presented that Joseph had visible dust on his clothing when he came home from work. The “possible” exposure from the mere presence of asbestos at a site visited by Marline or on Joseph’s clothing when he came home was insufficient to establish legal cause. By all accounts, this ruling diluted the potency of Kesner, and will surly limit plaintiff pool in future “take-home” exposure actions.