AboutLawsuits is reporting (here) that a jury in California recently awarded $27.3 million in damages to a woman who developed mesothelioma as a result of "second hand exposure" to asbestos. As you probably know, mesothelioma is a rare form of cancer, which is only known to be caused by exposure to, and breathing of, asbestos fibers.
Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband who was the one exposed to the fibers at work. As a result of his work, the plaintiff's husband carried asbestos fibers home on his work clothes, which caused the plaintiff to develop mesothelioma years later.
These cases present the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?
If we apply the traditional proximate cause analysis, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. If the answer is that reasonable people can disagree, then the case survives a motion to dismiss and goes to the jury.
Since asbestos fibers cling to clothes, it can easily be argued that exposure to others who come in contact with the contaminated clothes is a foreseeable consequence of the risk created. The problem with this, defendants argue, is that this subjects them to unlimited liability. What if a worker had the custom of going to a public establishment - a diner, restaurant, bar, etc - after work to meet with friends before changing? Should the defendant be liable to anyone who participated in those gatherings (as long as they can prove cause in fact)?
The concept of proximate cause was created precisely to achieve a level of fairness when it comes to possible unlimited liability. At some point we must draw a line - as Cardozo and Andrews agreed in Palsgraf v LIRR - and the key for the courts if figuring out how and where to do so.
In an asbestos second hand exposure case, the plaintiff will argue we should extend the possible liability to include the members of the exposed worker's household. The defendant will argue that there is no reason to extend the possible liability beyond the duty owed to the worker and that extending it to anyone else would be going too far.
The California case is similar to a case decided by the Illinois Supreme Court last year called Simpkins v. CSX. The allegations in Simpkins were essentially the same: a wife who was exposed to asbestos due to contact with her husband's clothes. The Court's opinion concluded that the complaint had not alleged sufficient evidence to support the claim that defendant owed a duty of care to the plaintiff but remanded to give the plaintiff the chance to do so. The court explained that in order for the claim to survive a motion to dismiss it would have to show specific facts relating to defendant's knowledge of the potential harms of asbestos. Only then would the court be able to answer the question on whether the injury was a foreseeable consequence of the risk created by the defendant. You can read the opinion here. For more on the case go here.
In other words, the case was remanded and allowed to continue, but I do not know what has happened since. If it is still being litigated, I am sure the recent verdict in California will provide the plaintiff with some support for her claims and approach. It may also influence the defendant to consider settling the matter before taking chances with a jury.
