The Next Frontier in Asbestos Litigation: Household Exposure ClaimsApril 2016 – Article
Household exposure claims are the next frontier for asbestos litigation, and in the coming years, these claims will comprise an increasing percentage of the overall numbers of mesothelioma claimants. These claimants allege that they developed an asbestos-related disease after encountering asbestos on a family member’s asbestos-laden clothing.
Today’s claimants typically allege that these exposures resulted from a household member who worked with asbestos-containing products at a premises owner’s jobsite. Studies show that these claims differ dramatically from cases reported in the historical medical and industrial hygiene literature that involved high levels of exposure to friable amphibole asbestos. To defend these cases, attorneys must know the historical literature and legal standards on household claims.
The reports related to household exposures are found sporadically sprinkled throughout medical and industrial hygiene journals. The initial reports related to household asbestos exposures began surfacing in the 1960s, but these studies provided limited and conflicting information. For example, the first report of household asbestos exposure and subsequent disease was one case of quasi-household exposure in 1960.1 The author reported that the patient also lived near a crocidolite mine, so that one cannot determine if her exposure resulted from living near the mine or a household contact.
Newhouse and Thompson published a study discussing household exposure in 1965.2 The study reported cases of mesothelioma developing from laundering clothing, but the authors relied on reconstructed occupational histories from family members. These reconstructed histories frequently miss significant, even if short, occupational exposures that may have caused the disease.
Subsequent publications by Lieben, Champion and Li were case reports and lacked the power of epidemiological studies to assess causation.345 All of the initial studies involved asbestos miners, insulators, factory workers or other trades known to have high levels of amphibole exposures.67
Sawyer was the first author to publish on the levels of fiber release from laundering clothing in 1977.8 He found that fiber release from shaking and laundering clothing after performing abatement reached occupational exposure limits in many cases.9 While subsequent studies confirmed his findings of high levels of exposure when working with raw and friable amphiboles, recent studies attempting to extrapolate the medical and fiber release articles to low-dose chrysotile products prove untenable. The industrial hygiene literature shows that work with encapsulated products like friction products, gaskets and packing result in low levels of fiber release for the worker.10 The studies also report that laundering the clothes of a worker who encountered these encapsulated products results in undetectable or minimal levels of fiber release.11
Recent medical articles examined the epidemiological data to identify risks associated with household exposures.12 Price and Ware found that rates of mesothelioma in women remained consistent over the past 70 years.13 The findings show that asbestos did not cause the vast majority of these female mesothelioma cases because the mesothelioma rate did not rise with the increasing use of asbestos if asbestos.14 Therefore, the studies do not support an association between the development of mesothelioma and these low levels of fiber release.
Despite the studies finding that many of these mesothelioma cases are unrelated to asbestos exposure, the advertising for mesothelioma claims results in plaintiffs’ firms filing an increasing number of cases with household allegations. The claimants are typically women or young adults who allege that they encountered asbestos from a family member’s clothing. The claimants and their attorneys argue that the premises owner breached a duty to the claimant by failing to warn the family members or providing measures to launder the family member’s clothing.15 While the vast majority of states find that there is no duty for household claims, a minority of states hold premises owners responsible for household exposures.16 The contrary rulings arise from differing legal analyses.17
The majority approach to household claims finds that the absence of a legally significant relationship precludes the imposition of liability for injury to an employee’s family member.18 Without a legally significant relationship, the premises owner is not required to provide warnings to an employee’s family member.19 Many of the courts also reject imposing a duty based on public policy concerns. These courts find that while society maintains an interest in minimizing potential public health issues, the burden on employers outweighs any policy concerns.20 These courts find that imposing a duty on a premises owner to household claimants would expose the employer to limitless liability without a method of warning the pool of potential claimants.21
The minority of courts that impose a duty on premises owner do so by examining the foreseeability of harm.22 These courts find that the decision whether to impose liability generally turns on the dates at the jobsite, available studies on household exposure, and applicable regulations.23When claimants present evidence indicating that a premises owner should have known that there were risks associated with the take home exposures, the courts find liability. When the knowledge is absent, the courts generally decline imposing liability.24
Delaware and Tennessee courts use a minority approach for household claims that examines the defendant’s liability based on malfeasance or nonfeasance.25 These courts find liability when a defendant’s malfeasance or affirmative act results in household exposures.26 The courts reject imposing liability when a defendant’s nonfeasance or failure to act results in the same exposure.27
As advertising brings an increasing number of the mesothelioma diagnoses into asbestos litigation, the number of household claimants will inevitably increase. Epidemiological studies show that a large number of these cases are likely idiopathic and unrelated to asbestos use. Thus, attorneys must be prepared to defend the household cases legally and medically. The two-pronged approach should focus on the lack of a legal duty to the household claimant and challenging the state of the art knowledge related to household exposures.
1 Wagner, et al. “Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province,” Brit. J. Industr. Med., Vol. 17 (1960).
2 Newhouse and Thompson, “Epidemiology in Mesothelial Tumors in the London Area,” Annals of the New York Academy of Sciences, Vol. 132, Art. 1 (1965).
3 Lieben, “Mesothelioma and Asbestos Exposure,” Arch. Environ. Health, Vol. 14, No. 4 (1967)
4 Champion, “Two case of malignant mesothelioma after exposure to asbestos,” Am. Rev. Resp. Disease, Vol. 103 (1971).
5 Li, “Familial mesothelioma after intense asbestos exposure at home,” JAMA, Vol. 240, No. 5 (1978).
6 Anderson, et al., “Asbestosis Among Household Contacts of Asbestos Factory Workers,” Annals NYAS (1979).
8 Sawyer, “Asbestos Exposure in a Yale Building,” Env. Res., Vol. 13 (1977).
10 Sahmel, Madl, et al., “Evaluation of Take-Home Exposure and Risk Associated with the Handling of Clothing Contaminated with Chrysotile Asbestos,” Risk Analysis (2014).
11 Madl, et al., “Exposure to Chrysotile Asbestos Associated with Unpacking and Repacking Boxes of Automobile Brake Pads and Shoes,” Ann. Occup. Hyg. (2008).
12 Price and Ware, “Mesothelioma Trends in the United States: An Update Based on Surveillance, Epidemiology, and End Results Program Data for 1973 through 2003,” Am. J. Epid., Vol. 159, No. 2, 107 (Jan. 15, 2004
15 Meghan E. Flinn, “A Continuing War with Asbestos: The Stalemate Among State Courts,” Washington and Lee Law Review, Vol. 71, Issue 1, 710 (Winter 1-1-2014).
16 Id. at 711.
17 Id. citing KAN. STAT. ANN. § 60-4905(a) (2006); Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 446 (6th Cir. 2009); Campbell v. Ford Motor Co., 141 Cal. Rptr. 3d 390, 405 (Ct. App. 2012); Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 170 (Del. 2011); CSX Transp., Inc. v. Williams, 608 S.E.2d 208, 210 (Ga. 2005), but see Fletcher v. Water Applications Dist. Group, Inc., 333 Ga. App. 693, 773 S.E.2d 859 (2015), appeal before Georgia Supreme Court on April 26, 2016; Nelson v. Aurora Equip. Co., 909 N.E.2d 931, 938 (Ill. App. Ct. 2009); Van Fossen v. MidAm. Energy Co., 777 N.W.2d 689, 699 (Iowa 2009); Zimko v. Am. Cyanamid, 905 So. 2d 465, 484 (La. Ct. App. 2005); Adams v. Owens-Ill., Inc., 705 A.2d 58, 66 (Md. Ct. Spec. App. 1998); In re Certified Question from Fourteenth Dist. Ct. App. of Tex., 740 N.W.2d 206, 220 (Mich. 2007); Olivo v. Owens-Ill., Inc., 895 A.2d 1143, 1149 (N.J. 2006); In re N.Y.C. Asbestos Litig., 840 N.E.2d 115, 122 (N.Y. 2005); Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448, 452 (Ohio 2010); Hudson v. Bethlehem Steel Corp., No. 1991-C-2078, 1995 WL 17778064, at *4 (Pa. Ct. C.P. Dec. 12, 1995); and Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 462 (Tex. Ct. App. 2007) .
18 Strang and Ross, “‘Take-Home’ Premises liability Asbestos Exposure Claim - 2011 Update.” http://dritoday.org/feature.aspx?id=300, citing Price, 27 A.3d 162; Rochon v. Saberhagen Holdings Inc., 140 Wash. App. 1008 (Wash. Ct. App., Div. 1 2007); and “A Continuing War with Asbestos: The Stalemate Among State Courts,” at 713 and 722 citing In re Asbestos Litig., No. N10C-04-203 ASB, 2012 WL 1413887, at *1.
19 Id. citing Van Fossen, 777 N.W.2d 689; Martin, 561 F.3d 439; In re Certified Question, 479 Mich. 498; and In re New York City Asbestos Litigation, 5 N.Y.3d 486.
20 “‘Take-Home’ Premises liability Asbestos Exposure Claim - 2011 Update,” citing In re Eighth Judicial District Asbestos Litigation (Rinfleisch v. AlliedSignal, Inc.), 12 Misc. 3d 936, 815 N.Y.S 2d 815 (N.Y. Sup. Ct. 2006); and “A Continuing War with Asbestos: The Stalemate Among State Courts,” at 721 citing In re Asbestos Litig. at *2; and Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1097 (Ill. 2012).
21 Id.; and “Take-Home’ Premises liability Asbestos Exposure Claim - 2011 Update” citing CSX Transp., 608 S.E. 2d 208; and Adams, 705 A. 2d 58.
22 Id. citing Anderson v. A.J. Friedman Supply Co., Inc., et al., 416 N.J. Super. 46, 3 A.3d 545 (2010); “A Continuing War with Asbestos: The Stalemate Among State Courts,” at 714 citing Olivo v. Owens-Ill., Inc., 895 A.2d 1143, 1149 (N.J. 2006); Hoyt v. Lockheed Martin Corp., No. 13-35573, 2013 WL 4804408, at *1 (9th Cir. Sept. 10, 2013); Zimko v. Am. Cyanamid, 905 So. 2d 465, 483 (La. Ct. App. 2005); Chaisson v. Avondale Indus., Inc., 947 So. 2d 171, 184 (La. Ct. App. 2006); and “Take-Home’ Premises liability Asbestos Exposure Claim - 2011 Update,” citing Catania v. Anco Insulations, Inc., U.S. Dist. Ct. M.D. LA No. 05-1418-JJB, 2009 WL 3855468.
23 “A Continuing War with Asbestos: The Stalemate Among State Courts,” at 715-716 citing Condon v. Union Oil Co., No. A102069, 2004 WL 1932847, at *4 (Cal. Ct. App. Aug. 31, 2004), Alcoa, Inc, 235 S.W.3d at 462, and Hudson, 1995 WL 17778064 at *4; and Martin, 561 F.3d at 446.
25 Id. at 724-726 citing Price, 26 A.3d at 169−70; Riedel v. ICI Ams. Inc., 968 A.2d 17, 21 (Del. 2009); and Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 360 (Tenn. 2008).