Clearing the Air: Ordinary Negligence in Take-home Asbestos Exposure Litigation

• Publication year: 2021

CLEARING THE AIR: ORDINARY NEGLIGENCE IN TAKE-HOME ASBESTOS EXPOSURE LITIGATION

Rebecca Leah Levine

Abstract: Since 2005, take-home asbestos exposure claims have constituted a new wave of asbestos litigation. In contrast to employees exposed to asbestos at a worksite, take-home exposure occurred among those affected by employees who inadvertently carried asbestos home on their clothing or their tools. While some jurisdictions have rejected these claims on the basis that the defendant did not owe a legal duty to the plaintiff, the Washington Court of Appeals recently recognized the potential validity of a household member's claim for relief for the harm he or she suffered as a result of asbestos exposure.(fn1) In doing so, the court applied an ordinary negligence test and examined the foreseeability of the harm to the plaintiff as the primary step in determining whether the defendant owed the plaintiff a legal duty. Although the Washington State Supreme Court has no precedent governing take-home asbestos exposure claims specifically, the courts of appeals' reasoning comports with Washington negligence law. Accordingly, Washington courts should apply this ordinary negligence test in future take-home asbestos exposure cases.

INTRODUCTION

"We bring more than a paycheck to our loved ones and family. We bring asbestosis, silicosis, brown lung, black lung disease. And radiation hits the children before they've even been conceived."(fn2)

While the use of asbestos in the United States has declined significantly in recent decades,(fn3) asbestos litigation continues to burden the courts. (fn4) Asbestos litigation is the longest-running mass tort litigation in the United States.(fn5) In the past, most disputes were limited to the complaints of workers who were exposed to asbestos in the workplace.(fn6) Recently, however, plaintiffs include these workers' household members who encountered asbestos through "take-home exposure. "(fn7) Take-home exposure occurs when workers exposed to asbestos in the workplace carry asbestos particles home on their work clothes, thereby exposing members of their households to the dangerous substance.(fn8) As household members develop adverse health outcomes related to their exposure, they have sought compensation for their injuries from the worker's employer through litigation.(fn9)

Jurisdictions are mixed in their treatment of take-home asbestos exposure claims. Currently, seven states permit such claims;(fn10) however, nine other states have rejected them.(fn11) The key factor that influences whether a court permits a take-home exposure claim is the methodology used to analyze negligence. Jurisdictions that tend to permit such claims begin their analyses by focusing on whether the harm to the plaintiff was a foreseeable consequence of the employer's actions. (fn12) In contrast, jurisdictions that tend not to uphold such claims focus on the relationship between the employer and the plaintiff.(fn13)

Washington courts use this foreseeability approach when analyzing negligence claims. The Washington State Supreme Court has held that for negligence claims, the foreseeability of harm defines the duty that an actor owes to another.(fn14) In Rochon v. Saberhagen Holdings, Inc.,(fn15) the Washington Court of Appeals ruled that a plaintiff could potentially recover on a take-home asbestos exposure claim under an ordinary negligence theory of liability.(fn16) The court declared that if the defendant affirmatively created a risk to Mrs. Rochon, the employee's at-home spouse, then it had a duty to protect her from harm arising out of that risk.(fn17) This unpublished opinion has no binding authority in Washington courts.(fn18) Nonetheless, applying a similar analysis to future cases would enable individuals exposed to asbestos to seek redress for their injuries from those who failed to provide adequate protection.

This Comment argues that the Washington Court of Appeals was correct in applying an ordinary negligence test to assess whether a household member has stated a valid claim for take-home asbestos exposure. Part I provides an overview of asbestos exposure and the history of asbestos litigation in the United States. Part II addresses different legal theories that courts and legislatures use to compensate persons for injuries attributable to asbestos exposure. Part III discusses Rochon v. Saberhagen Holdings, Inc., and Part IV argues that the court in Rochon applied the appropriate negligence test.

I. THE USE OF ASBESTOS IN AMERICAN INDUSTRY HAS HAD PROFOUND MEDICAL AND LEGAL CONSEQUENCES

Asbestos has played a significant role in American industry. (fn19) Despite the fact that scientific data on the dangers associated with asbestos exposure began in the early twentieth century,(fn20) workers were continuously exposed to the substance in the workplace.(fn21) As they developed adverse health outcomes resulting from their exposure, they began to seek relief from their employers(fn22) and from manufacturers of asbestos products.(fn23) Now, as the courts face a new wave of asbestos litigation in take-home exposure claims,(fn24) Congress has been unsuccessful in crafting a legislative remedy that meets the needs of all the interested parties.(fn25)

A. Asbestos, a Naturally Occurring Mineral, Was Widely Used Commercially Throughout the Twentieth Century

The Toxic Substances Control Act defines asbestos as the asbestiform(fn26) varieties of chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite/grunerite), anthophyllite, tremolite, and actinolite. (fn27) Asbestos fibers are strong and flexible, so that they can be woven together, and are also resistant to heat and to most chemicals, making them appealing for industrial use. (fn28)

In the United States, asbestos has been mined and used commercially since the nineteenth century, and its use increased significantly during World War II. (fn29) Since that time, it has been used widely in the building and construction industries to reinforce cement and plastic products, as well as for several other purposes.(fn30) While the demand for asbestos in the United States increased considerably from 1900 until 1973,(fn31) use of asbestos declined significantly as information on adverse health effects-and the resultant potential for liability-increased.(fn32) The last asbestos mine in the United States closed in 2002,(fn33) and asbestos is no longer widely used in manufacturing;(fn34) however, it is still used in the United States in construction and transportation products.(fn35) Because of the widespread past and present use of asbestos, low levels of asbestos are present in air, soil, and water, and each person is exposed to it at some point during his or her life.(fn36)

B. Knowledge of the Health Effects of Asbestos Exposure Developed Throughout the Twentieth Century and the Substance Is Now Universally Recognized as a Human Carcinogen

In the early twentieth century, scientific research on asbestos exposure focused on occupational health inside the workplace, but expanded when data revealed that those who had never worked with asbestos firsthand were becoming ill. (fn37) The first reference to pulmonary fibrosis, or scarring in the lungs, was in 1906 in England,(fn38) and major recognition of asbestos-induced disease originated there in 1924.(fn39) In the United States, asbestosis(fn40) was first described in 1918.(fn41) In 1935, the first reference to carcinoma of the lung in a patient with "asbestos-silicosis" appeared in scientific literature, and reports of lung cancer in patients who died of asbestosis soon followed.(fn42) In 1955, British scientist Richard Doll found a high risk of lung cancer in those who had worked in an asbestos plant for twenty years, and a particularly high risk in those who had worked at the plant even longer.(fn43) In 1959, J.C. Wagner recognized the causal connection between asbestos and mesothelioma.(fn44)

Early studies were limited to workers exposed through the mining and production of asbestos. With the developing body of scientific knowledge, the New York Academy of Sciences held a conference in 1964 to discuss the adverse health consequences of asbestos exposure.(fn45) At that conference, scientists, including Dr. Irving Selikoff, revealed the association between workplace asbestos exposure and an increased risk of death from cancer.(fn46) This research also drew attention to the fact that others-including workers in asbestos production, workers indirectly exposed to asbestos in the workplace, such as shipyard workers, and family members-may be exposed as well. (fn47) At the same conference, researchers Muriel Newhouse and Hilda Thompson presented findings that take-home asbestos exposure was causally linked to adverse health effects.(fn48) In their landmark study, they found "little doubt that the risk of mesothelioma may arise from both occupational and domestic exposure to asbestos."(fn49) This study provided key information that the health risks associated with asbestos exposure are not limited to the workplace, but could reach those who lived in the worker's home.(fn50)

After scientists highlighted the dangers of asbestos exposure during the conference, Dr. Selikoff lobbied to educate legislators about the need to protect Americans from such exposure.(fn51) Congress passed the Occupational Safety and Health Act in 1970 to "assure safe...