lawjUSTICEBWThis month, attorneys working at Guantanamo Bay’s Camp Justice filed a lawsuit against the Department of Defense (Seeger et al v. U.S. Department of Defense et al, U.S. District Court, District of Columbia, No. 17-00639), in which they allege that they have been exposed to dangerously high levels of carcinogens from working in contaminated areas. The four attorneys, who include Army Major Matthew Seeger and three civilian attorneys, represent Walid Bin Attash, a Yemeni man charged with helping to plot the attacks of September 11, 2001.

The attorneys’ complaint alleges that various environmental hazards at the Guantanamo Bay Camp Justice complex have been linked to nine cases of cancer since 2008 among individuals who worked at the camp, and that the U.S. Navy has not properly investigated these conditions. The nine individuals range between the ages of 35 and 52, and their diagnosed illnesses have included lymphoma, colon, brain, and appendix cancer. Camp Justice is located on the site of a former airfield, and includes temporary housing units, as well as offices where the attorneys both live and work while at the camp. This former airfield was at one point allegedly used to dispose of jet fuel.

The complaint alleges that the attorneys first approached authorities with complaints in July, 2015 and requested an investigation into whether conditions at Camp Justice had contributed to several cancer cases among employees who worked at the camp. The suit further alleges that the U.S. Navy conducted a flawed investigation of the alleged environmental hazards, failing to determine what kind of a risk they posed to personnel and further failing to determine appropriate measures to remedy the situation.

The Navy’s preliminary investigation included an industrial hygiene and habitability survey of Camp Justice’s buildings where personnel live and work. The investigation documented the presence of multiple environmental hazards, including poorly-maintained asbestos-containing floor tile, lead-based paint chips, air samples that tested positive for mercury and formaldehyde, and soil samples that tested positive for benzopryene. All of these substances have been found to be carcinogenic. The Navy’s report acknowledged that their environmental and historical investigations were limited, but nevertheless found that there was insufficient evidence to address potential exposures to carcinogens. With that, they deemed the property’s buildings to be habitable. Additionally, following a review of military health records, they concluded that the number and types of cancer cases did not meet the Center for Disease Control’s definition of a “cancer cluster” and therefore did not warrant a formal cancer cluster investigation. These and additional findings were detailed in a risk assessment report published in February, 2016, which ultimately found that the potential cancer risk cannot be determined and identified the need for further sampling in response to the carcinogens documented during the investigation.

While none of the Plaintiffs have been diagnosed with cancer at this time, they allege that they face an increased risk of developing cancer or other serious diseases, and suffer from emotional distress, upper respiratory symptoms and infections, migraine headaches, itching and burning eyes and skin, and a lack of support in their professional duties because team members refuse to travel to Guantanamo Bay due to the potential health risks.

The complaint alleges that when hearings are held at Camp Justice, attorneys and support staff, including plaintiffs, are required to travel to the camp for a week or more at a time, several times throughout the year. They further opine that as their client’s trial approaches, it will become necessary for them to spend weeks at a time at the camp. When these teams must travel to the camp, they receive orders from the Convening Authority, assigning them to specific housing, but the Navy controls housing decisions at the Naval Station and can reject the Convening Authority’s requests for certain housing. Since their complaint was filed in 2015, Plaintiffs have consistently requested alternative housing, but have not been permanently reassigned to different housing units.

Three of the nine cancer patients referred to in the complaint have died, including Navy Lieutenant Commander Bill Kuebler, who was 44 years old when he passed away from cancer in July, 2015, just a few days after plaintiffs’ original complaints were made to superiors. The complaint notes that the cancer cases have occurred among young, otherwise healthy individuals who have worked at Camp Justice. The attorneys who filed the complaint are seeking an injunction that would require the Defense Department to provide accommodations that would protect them from the risks, both known and unknown of living and working at the camp. They request proper testing of the conditions at the camp and that they, in the meantime, be moved to safer housing units.



In a 2-1 opinion, the Fourth District Court of Appeal continued to apply the law which bars marrying into a cause of action, but a strong dissenting opinion and noted public policy concerns could trigger further review.

In Florida, as in various other jurisdictions, the courts follow the common law marriage before injury rule. This rule requires a party to be married to the injured person prior to the time of the injury in order to assert a claim for loss of consortium – i.e. loss of companionship and support. The rationale behind this rule is that a person should be unable to marry into a cause of action. This rule has been consistently applied in personal injury cases including toxic tort and products liability cases of the “creeping” variety, such as asbestos and tobacco.

In the recent decision issued in Janis Kelly v. Georgia-Pacific, LLC, et al., No. 4D15-4666 (Fla. 4th DCA February 22, 2017) the Court was asked to look at this issue in the context of a wrongful death claim. In Kelly, Plaintiffs originally filed a personal injury claim asserting causes of action for negligence, strict liability, and for Mrs. Kelly’s loss of consortium arising from Mr. Kelly’s alleged exposure to asbestos while working in construction from 1973 to 1974. Mr. and Mrs. Kelly were not married until 1976, two years after Mr. Kelly’s alleged asbestos exposure. Mr. Kelly died during the course of the litigation at which time Mrs. Kelly amended the complaint to allege a claim for wrongful death, which included a demand for loss of consortium damages. The Defendants moved to dismiss Mrs. Kelly’s claims for loss of consortium as Mr. and Mrs. Kelly were not married at the time of Mr. Kelly’s alleged injury. When the trial court granted the motion to dismiss, Plaintiff voluntarily dismissed the remaining claims and the appeal followed.

On appeal, the Court addressed whether the Florida Wrongful Death Act supersedes the common law requirement that a spouse must be married to the decedent before the time of the injury to recover consortium damages. And, the Court revisited the question of whether the common-law marriage before injury rule should apply in “creeping” cases where the injury is a latent injury that does not reveal itself until after the parties marry.

On the first issue, the Court looked to the legislative intent of Florida’s Wrongful Death Act, to determine if the Act supersedes the common law of loss of consortium– i.e. did the statute unequivocally state that it changes the common law or is it so repugnant to the common law that the two cannot coexist. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). In applying Thornber, the Court found that the plain language of the Act clearly intended to allow for the survivors of the decedent to recover damages, including the surviving spouse to recover “consortium-type” damages. See ACandS, Inc. v. Redd, 703 So.2d 494 (Fla. 3d DCA 1007). The Court found, however, that nothing in the Act nullifies the common law marriage before injury rule. Instead, the Court determined that the common law requirement merely limits the circumstances when damages for loss of consortium may be recovered. Ultimately, ruling that the common law marriage before injury rule can coexist with the Wrongful Death Act.

In further support of its position, the Court also looked to the legislature’s definition of the term “survivor” and the trigger for when consortium damages are recoverable under the Act. Specifically noting, the term “survivor,” is limited to a familial relationship only, and the provisions of the Act governing a survivor’s damages clearly provide that they are recoverable from the date of the injury. See §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Based on these provisions, the Court concluded that the Act clearly anticipated the surviving spouse would have been married to the decedent prior to the date of the injury.

Lastly, in making its determination to apply the marriage before injury rule in wrongful death cases as well as personal injury claims, the Court addressed the requirement that it avoid absurd or unreasonable results. Justice Levine, in writing for the Court, notably stated “it would make no sense to allow a spouse to recover consortium damages under the Wrongful Death Act simply because his or her spouse has died when that same spouse would be prohibited from recovering the same damage under a loss of consortium claim had his or her spouse survived.” It is clear that such a ruling would create an inconsistent standard and provide for a cause of action where none previously existed.

The Court then briefly addressed the second issue related to Mrs. Kelly’s argument that the marriage before injury rule should not apply in an asbestos case where the injury is latent because there is no risk, or at least a diminished risk, of a spouse marrying into a cause of action. While acknowledging the persuasive policy reasons for superseding the common law rule, especially where the injury is latent, the Court in relying on the decision in Fullerton v. Hospital Corporation of America, 660 So.2d 389 (Fla. 5th DCA 1995), declined to overrule the trial court’s order. Finding as the Court did in Fullerton, that absent a statute superseding the common-law requirement, it is required to follow the common-law rule.

Justice Taylor’s dissent focused solely on the position that the Wrongful Death Act explicitly abrogates the common-law rule. He argues that the statute was created to provide for a surviving spouse to bring a new cause of action that was not previously recognized by common law entitling them to make a claim for loss of consortium damages. And, that the legislature’s inclusion of loss of consortium damages without language limiting their recoverability based on the surviving spouse’s relationship to the decedent at the time of the injury, clearly shows intent that such damages be recoverable.

While this case provides clarity as to the application of the common-law marriage before injury rule in both personal injury and wrongful death cases, based on the dissent and noted public policy issues, this issue will most likely be addressed in the near future by the Florida Supreme Court.

On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit, having been appointed to same by President George W. Bush on July 20, 2006.  While at the Tenth, Judge Gorsuch issued two interesting decisions which may prove instructive as to how he views the Court’s role as the evidentiary gatekeeper[1] of expert testimony. A discussion of those two cases, and what they foretell with regard to “all exposures contribute” testimony follows.

Graves v. Mazda Motor Corp., 2010 WL 5094286.

This case arises out of Mrs. Graves’ trip to Hattiesburg, Mississippi. Upon arriving at the Hattiesburg airport, she picked up her rental car—a Mazda 6 with an automatic transmission. At the end of her stay and while en route to the airport to depart for home, Mrs. Graves got lost and pulled over to ask for directions. When exiting the car, Mrs. Graves left the engine running but thought she had placed the car’s shifter in “park.” As it turns out, the gear shifter was in “reverse” and, when she stepped out, the car rolled backwards, knocked her to the ground, and ran her over. Mrs. Graves sought damages from Mazda for the injuries she suffered, alleging that the company’s gear shifter was defectively designed. In support of her claim, she offered expert testimony from an expert human factors engineer. The district court, however, excluded the expert’s testimony as unreliable and then, given the absence of any other probative evidence of liability, granted Mazda’s summary judgment motion. On appeal, the plaintiff sought to undo the district court’s decision.

The district court noted that the expert failed to provide any data or industry standard, or to conduct any testing to confirm his view that Mazda’s gear shift design was defective. Instead, the expert’s proffered testimony that merely described how the Mazda shifter works, and from this, his leap to the conclusion that Mazda’s design fails to allow for “smooth” shifting and so is defective and unreasonably dangerous.

Judge Gorsuch, writing for the three judge panel (Kelly, J., Ebel, J.) noted that without any reference to data suggesting how “smoothly” an ordinary consumer would expect a gear shift to move, without any confirming evidence indicating how Mazda’s design might cause shifting troubles for ordinary drivers, without any reference to how engineering standards might have counseled against Mazda’s gear shift design, and without any other evidence suggesting its reliability, the district court was right to exclude the expert’s testimony. Judge Gorsuch noted that the expert did provide a list of “safety systems analysis” techniques that, he contended, Mazda should have used in assessing its design, but even here, the expert failed to offer any evidence suggesting that Mazda actually failed to use these techniques, or if it did, that these techniques would have led Mazda to conclude that it needed to pursue a different gear shift design.

BancFirst v. Ford Motor Co., 489 Fed.Appx. 264 (2012); 2012 WL 2899053.

This case arose out of a tragic accident, in which a child darted out of an intersection and was struck by a truck. The young victim’s guardian sought to establish that the driver counter-steered (something the driver denied) in order to place responsibility for the accident with Ford and their allegedly defective brakes. The district court, however, concluded that the expert did not meet the standards for admissible expert testimony set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and because the guardian lacked any other evidence suggesting Ford’s braking system was the cause of the accident, granted summary judgment.  The guardian appealed.

Judge Gorsuch, again writing on behalf of a unanimous three judge panel (Tymkovich, J., and Baldock, J.), agreed with the district court judge who found “simply too great an analytical gap between the data and the opinion proffered.” This was especially so given the driver’s concession that when he saw the victim dart into the intersection he didn’t counter-steer to the right but instead hit the brakes and turned hard to the left, only to have the truck spin counterclockwise and causing its right rear corner to hit the child. As Judge Gorsuch noted, this was easily understandable as steering right into the skid would have required the driver to turn the wheel toward the child, making an already counter-intuitive maneuver all the more so given his desperate wish to avoid hitting her.

Attempting to bridge the gap between his opinion and the driver’s unhelpful admission, the expert pointed to police photographs showing that the wheels of the truck were turned to the right after the accident. But, as the district court noted, there was no indication when the wheels were turned to the right, before or after the accident. Moreover, the expert’s testimony that driver education courses usually teach new drivers to counter-steer out of a slide, fails to include evidence that the driver was so taught, or that drivers tend to follow this training in the heat of the moment when doing so requires them to turn, seemingly paradoxically, toward a person they are seeking to avoid. A similar problem recurs with the expert’s reference to a study which shows the driver theoretically had enough time to make the counter-steer. Judge Gorsuch found even if the study stood for such a proposition, there was still no evidence that the driver did counter-steer, or that drivers tend to do so even when it requires them to turn back in the direction of a person with whom they are about to collide. In so doing, the Court excluded the expert testimony and granted Ford’s Motion for Summary Judgment.

All Exposures Contribute Testimony

Occupational diseases such as Acute Myeloid Leukemia, Mesothelioma, Byssinosis, Silicosis and Black Lung Disease have long latency periods, and often times follow multiple sources of exposure. Typically, the only viable defendants remaining at trial are those whose products are encapsulated in materials or used in a manner unlikely to cause a sufficient dose to lead to disease. To get around this evidence, plaintiffs’ experts often opine that “every exposure,” “every exposure above background,” or “total and cumulative exposure” substantially contributes to the development of the plaintiff’s disease. Often times experts also opine that “there is no known safe level of exposure and as such all exposures must be included in attributing causation.”  How courts handle such testimony has been discussed at length in this Blog, so will not be discussed here.  See e.g., Senter, Meghan, Another Blow to “Every Exposure” in Asbestos Litigation, January 5, 2017;  Cree, Jennifer, Causation Standard at Center of PA Supreme Court Asbestos Ruling, December 6, 2016; Moore, Elizabeth, Plaintiff’s Experts Barred from Offering “Any Exposure” Theory in Asbestos Lung Cancer Case, March 10, 2015.

The Graves and BancFirst decisions authored by Judge Gorsuch, may however, give us some insight as to how a Supreme Court Justice Gorsuch would handle the issue.  For example, Judge Gorsuch will not be swayed by the exceptional credentials held by many experts espousing such testimony. As he noted in Graves, … while … we appreciate and recognize the expert’s credentials and don’t doubt the value someone in his field can bring to defective design cases, the evidence he proffered in this case rests on no more than his say so—and that isn’t good enough to require its admission. “Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence” based on only “the ipse dixit of the expert[,]” however well qualified he may be. ..” (citation omitted).  Similarly, as he noted in BancFirst, gaps between opinion and data, will inevitably result in the court’s exclusion of the testimony, … “an expert’s scientific testimony must be based on scientific knowledge, which ‘implies a grounding in the methods and procedures of science’ based on actual knowledge, not ‘subjective belief or unsupported speculation.’ (citations omitted).

Based upon the above a Supreme Court Justice Gorsuch will likely see the flawed methodology behind opinions that any exposure, no matter how slight, remote, or insignificant was a cause or substantial contributing factor to the development of disease. It appears he will be open to defendants’ arguments that such testimony is purely speculative, rests upon flawed methodology, and ultimately, cannot be said to be helpful to the trier of fact.  This will be especially so when presented with epidemiology discounting the no safe level standard, industrial hygiene evidence regarding specific products’ abilities to create exposures and the like.  If the Graves and BancFirst decisions are any indication, Justice Gorsuch takes his gatekeeper role very seriously, and will not be afraid to exclude junk science such as that referenced above.

[1] For a discussion of the court’s gatekeeper role, see Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).


louisiana-890549_960_720Causation opinions from plaintiff’s experts in asbestos exposure cases have undergone a puzzling evolution as they continue to face successful challenges. From “every exposure” to “every exposure above background” and “every significant exposure,” each iteration has attempted to make the same end run around the plaintiff’s burden of proof by stating that all exposures in a lifetime work together to cause disease. A recent federal decision, however, struck another blow to the “every exposure” theory, adding to the growing case law debunking it as nothing more than junk science.

Under the “every exposure” theory advanced by plaintiff’s attorneys in asbestos litigation, each defendant whose product plaintiff may have worked with or around, no matter how infrequently, is equally liable. The theory claims that each exposure contributes to the development of disease, without making any attempt to quantify the specific exposures from various products. This is particularly problematic when you consider that exposures to asbestos from certain products may be so low that, taken individually, may not have resulted in disease. The “every exposure” theory glosses over these de minimis exposures with the opinion “each and every exposure” to asbestos contributes to the causation of disease.

Recently, federal courts have begun to critically analyze this “every exposure” theory, and to demand a more stringent causation analysis. In Smith v. Ford Motor Co, a Utah federal court found held that the “each and every exposure theory is based on a lack of facts and data.” Smith involved a plaintiff’s expert who opined that the plaintiff’s mesothelioma was caused by his total and cumulative exposure, with all exposures playing a contributory role. The court excluded that testimony, finding that the “every exposure” theory “asks too much from too little evidence as far as the law is concerned. It seeks to avoid not only the rules of evidence but more importantly the burden of proof.” Likewise, in Yates v. Ford Motor Co., a case out of the Eastern District of North Carolina, the court excluded testimony of another well-known plaintiff’s expert, finding that his adherence to the “each and every exposure” theory lacked a basis in supporting facts or data.

And most recently, in Bell v. Foster Wheeler Energy Corp., the Eastern District of Louisiana referenced the growing line of exclusionary opinions and stated that the “deficiencies of the “each and every exposure” theory of causation in asbestos exposure cases have been extensively discussed.” The court held that the theory is not an acceptable theory of causation because it amounts to “nothing more than the ipse dixit of the expert.” Though some state and federal courts continue to permit the “every exposure” theory, cases like Smith, Yates, and Bell add to the growing number of jurisdictions requiring plaintiffs to meet their burden of proof.

california-160550_960_720Last month, the California Supreme Court issued a ruling on two coordinated “take-home” asbestos exposure cases, in which it held that employers using asbestos in the workplace have a duty of care to protect an employees’ household members from exposure to asbestos through off-site contact with employees who carry asbestos fibers on their work clothing and/or persons, also referred to as “take-home” exposure plaintiffs.  The Court noted that the duty of care existed regardless of whether the plaintiff states a claim for general negligence or premises liability.  This ruling helps clarify the law in California on the duty of care owed to “take-home” exposure plaintiffs, and in doing so further establishes California as a plaintiff-friendly state in asbestos litigation.

The Court’s opinion was premised on two “take-home” asbestos cases.  In one matter, the plaintiff filed suit against various defendants alleging that they exposed him to asbestos and caused his peritoneal mesothelioma.  Among the defendants was Pneumo Abex, LLC.  The plaintiff alleged that his uncle worked and was exposed to asbestos in a Pneumo Abex plant, which he then took home on his clothes and person and to which the plaintiff was subsequently exposed to during the 1970s.  In the other matter, the plaintiffs filed a wrongful death lawsuit against various defendants, alleging that their mother passed away from mesothelioma after also having been exposed to asbestos.  Among other defendants, the plaintiffs alleged that BNSF Railway Company employed and exposed the decedent’s husband to asbestos fibers, which he then brought home to the household he shared with the decedent, thereby exposing her to asbestos as well.

The Supreme Court set out to determine whether an employer or premises owner using asbestos has a duty to protect individuals secondarily exposed to asbestos through the clothing and persons of individuals either employed by the defendant or on the defendant’s premises.  After evaluating the facts and law, the Court held that “[w]here 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,” and that the duty applies to employers and “also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners.”  However, the Court noted that this duty  extends only to members of a worker’s household, regardless of whether they are a relative.

In reaching this holding, the California Supreme Court first noted that California Civil Code section 1714 “establishes a general duty to exercise ordinary care in one’s activities,” thereby meaning that the issue is not whether a new duty should be established, but rather whether the Court should create an exception such that employers and premises owners would not owe a duty of reasonable care towards a workers’ household members secondarily exposed to asbestos.  California law requires that courts consider the factors outlined in Rowland v. Christian, 69 Cal. 2d 108 (1968) to evaluate whether a situation warrants a duty of care.  Under Rowland, a Court must consider 1) whether the injury in question is foreseeable; 2) the degree of certainty that the plaintiff has suffered an injury; 3) the closeness between the defendant’s conduct and the injury suffered; 4) moral blame of the defendant; 5) whether a duty of care would prevent future harm; 6) the burden to the defendant; and 7) availability of insurance for the type of injury suffered.  After considering all of these factors, the Supreme Court concluded that the injury suffered by the plaintiffs, i.e. mesothelioma resulting from exposure to asbestos, was a foreseeable result in light of the OSHA standards in place at the time of the plaintiffs’ alleged exposure to asbestos, as well as other publications during that time frame documenting the risks of asbestos exposure.  Accordingly, the Court held that because an increased risk of contracting mesothelioma was a characteristic harm resulting from the use of asbestos-containing materials, and because it can be reasonably assumed that a worker exposed to asbestos during the workday returns home at the end of the day, it was reasonably foreseeable that such workers would expose their household members to the asbestos fibers they worked with and around, thereby increasing their risk of contracting mesothelioma. While the defendants argued that there was no scientific consensus regarding the risks of asbestos during the time in which the plaintiffs were allegedly exposed, the Court noted that there is no authority for the proposition that a scientific consensus is required to establish foreseeability in the context of duty analysis.

In addition to the foreseeability of the injuries sustained by the plaintiffs in this case, the Court further held that public policy considerations also supported a finding that employers and premises owners owed a duty of care to a worker’s household members.  The Court noted that the defendants financially benefited from their business activities involving the use of asbestos, and that preventing workers’ household members’ from being exposed to asbestos would not have imposed “a greater burden than preventing exposure and injury to the workers themselves.”

Despite recognizing a duty of care owed to individuals secondarily exposed to asbestos, the defense was able to successfully argue that a blanket duty could lead to tenuous claims by an unlimited number of plaintiffs, thereby overburdening defendants and the courts.  In light of this concern, the Court held that this duty of care only extends “to members of a workers’ household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time,” thereby limiting “potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.”

The Court further held that this duty extends to both employer defendants as well as defendants sued under premises liability theory.  While the defense argued that recognizing a duty of care owed to “take-home” plaintiffs when a defendant is sued under premises liability “would take the ‘premises’ out of premises liability and unsettle the tort law that applies to all property owners,” the Court disagreed, noting that California courts have repeatedly held that a landowner’s duty of care to avoid exposing others to risk of injury is not limited to injuries that occur on the premises, but rather extends to risks of injury off the landowner’s premises, if the property “is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site.”  Given that the plaintiffs’ injuries were allegedly sustained through contact with asbestos fibers originating from the defendants’ worksites, the Court felt a duty of care was appropriate.

This decision will undoubtedly have many repercussions.  While California is already a popular jurisdiction for asbestos litigation, this holding will likely encourage more asbestos lawsuits, given that this holding will help shield many plaintiffs from demurrers and summary judgment motions, thereby increasing plaintiffs’ bargaining power.  This can subsequently result in higher settlements and larger plaintiffs’ verdicts.  However, the Court’s holding did offer some limitations of which defendants should be mindful:

  • Household Foreseeability Limitation – The Court established only a duty of care for members of the same household as individuals exposed to asbestos in their workplace. The Supreme Court was unwilling to extend the duty of care to all individuals who may have been exposed to asbestos through an employer’s clothing and person, as the Court noted that while it is foreseeable for members of an individual’s household to be exposed to asbestos from a workplace, it is less foreseeable for individuals not living in the same household as the worker to be exposed to measureable amounts of asbestos.
  • Premises Defendant Exceptions – The Court noted that while this duty extends to premises liability defendants, various fact-specific defenses may still be applicable. For instance, premises defendants are not liable to third parties for injuries caused by a contractor’s negligence in performing work, based on a lack of control, unless the premises owner is aware of a hazardous condition the contractor did not know about and was unaware of.  Kinsman v. Unocal Corp., 37 Cal. 4th 659, 675 (2005).
  • Product Defendants – The Court noted that product defendants are distinguishable from employer or premises defendants based on the level of control the defendant has over the use of asbestos: “[T]ake-home asbestos cases against employers or premises owners allege that the defendants had direct knowledge as to how fibers were being released and circulated within their facilities and failed to prevent those employees from leaving workplaces owned or controlled by the defendants with asbestos on their clothing or persons. Product liability defendants, by contrast, have no control over the movement of asbestos fibers once the products containing those fibers are sold.”  Accordingly, the Court suggests that this holding does not extend to product manufacturers, as their control ends when the product is sold, thereby making any “take-home” exposure attenuated and difficult to foresee.

While the ultimate repercussions of this decision remain to be seen, defendants should be mindful that it only helps to further solidify California as a popular jurisdiction for asbestos litigation.