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Court: Firms Liable for Take-Home Asbestos

Monday, December 12, 2016

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A decision handed down by the California Supreme Court has established that companies are liable if members of an employee’s household are sickened by secondhand asbestos exposure.

The decision addressed two cases that were consolidated, one of which involved a railway worker’s alleged repeated exposure to asbestos from pipe insulation. In both cases, an individual close to a worker who was allegedly exposed to asbestos eventually developed mesothelioma, a condition most often caused by asbestos. In both, the alleged exposure occurred in the 1970s.

Asbestos removal
© iStock.com / bermau

Asbestos was widely used in insulation and other applications for decades, until the 1970s, when its adverse health effects began to be fully recognized.

The unanimous verdict was handed down Dec. 1 by the state’s seven-member Supreme Court, the highest court in California, with an opinion written by Justice Goodwin Liu.

The new decision appears to override two previous cases that were decided in the California Court of Appeals, which ruled that a company was not responsible for secondhand exposure to asbestos or other hazardous chemicals at a worker’s home. It also differs from many other states’ interpretations of the law with regard to take-home asbestos exposure.

The Two Cases

In one of the two cases, Haver v. BNSF Railway Co., the children of Lynne Haver sued on behalf of their late mother, who was diagnosed with mesothelioma in 2008 and died a year later. The suit claimed Haver’s husband, who worked for the Atchison, Topeka and Santa Fe Railway (a predecessor of BNSF) from 1972 through 1974, was exposed to asbestos from pipe insulation.

His clothing, the plaintiffs argued, was contaminated with asbestos, and Haver herself was exposed to the hazardous substance when he came home.

Asbestosis diagram
By National Heart Lung and Blood Institute

Asbestos exposure can lead to lung cancer, mesothelioma and asbestosis. The U.S. Environmental Protection Agency banned all new uses of the material in 1989.

In the other, Kesner v. Superior Court, Johnny Blaine Kesner Jr. sued Pneumo Abex LLC, which employed his uncle at a brake manufacturing plant in Virginia in the 1970s. Kesner, who died in 2014, argued that he was exposed to asbestos as a child, when he spent at least three nights a week at his uncle’s house, often playing with his uncle while he was still in his work clothes.

Kesner’s attorneys argued that Pneumo Abex and other companies working with asbestos knew of its dangers but did not provide proper training and facilities for workers to rid themselves of the substance before leaving work.

Hazards of Asbestos

Asbestos was widely used in insulation and other applications for decades, until the 1970s, when its adverse health effects began to be fully recognized. The material’s health effects were noted much earlier, though, and debate has ensued as to whether employers and the U.S. government knew of its hazards but downplayed them for decades.

Asbestos exposure can lead to lung cancer, mesothelioma and asbestosis. The U.S. Environmental Protection Agency banned all new uses of the material in 1989.

In his opinion on the cases, Liu wrote, “Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.”

Asbestos danger
© iStock.com / ScottKrycia

The California Supreme Court ruled in two cases, one of which involved a railway worker’s alleged repeated exposure to asbestos from pipe insulation.

The decision doesn’t open up companies to suits from just anyone who might have had contact with a worker; only members of the worker’s household are covered by the case.

“Importantly,” Liu added, “we hold that this duty extends only to members of a worker‘s household. Because the duty is premised on the foreseeability of both the regularity and intensity of contact that occurs in a worker‘s home, it does not extend beyond this circumscribed category of potential plaintiffs.”

Other States' Rulings

Other states have ruled differently on the matter. In September, Arizona’s state court of appeals denied a claim that a metal company should be responsible for the 2014 mesothelioma death of a man whose father was an employee in the 1950s and ’60s.

In 2015, the New Jersey Superior Court heard the case of Brust v. ACF Industries, in which lawyers for Sandra Brust argued she was exposed to secondhand asbestos as a child when her father worked on brake systems for the Port Authority Transit Corporation in New Jersey. The court ruled that the plaintiff was unable to prove that her exposure was great enough to have caused her mesothelioma.

In October 2016, the U.S. Supreme Court declined to hear an appeal in Brust, ruling that the matter was governed by the state, not federal rail regulations.

   

Tagged categories: Asbestos; Ethics; hazardous materials; Health & Safety; Health and safety; Lawsuits; North America

Comment from M. Halliwell, (12/12/2016, 10:58 AM)

Thanks for the update, but you need to select better iStock photos to go along with these articles. The worker in the microporous coveralls looks like they are in an N95 mask...there are very few N100s in that style and those have a fairly distinctive look. The N95 shown is not sufficient for asbestos work according to OHSA. OHSA indicates a minimum of a HEPA (or P100) filtration is required.


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