By Paul Cranley on November 12, 2018

AsbestosIn a recent decision of the U.S. District Court for the Western District of Washington, the court held that the dangers of secondary asbestos exposure were not foreseeable in and before 1955. Jack v. Borg-Warner Morse TEC, LLC, et al., W.D. Wash., Case No. C:17-0537 JLR. In particular, the Court held that the evidence presented by the plaintiffs in favor or their “take-home exposure” theory was insufficient to allow a jury to find that prior to 1955, defendant Union Pacific “knew or should have known of the risk that secondary asbestos exposure posed to its employees’ family members.” Id. Accordingly, the Court granted Union Pacific’s motion for summary judgment on the plaintiff’s take-home exposure claim. Id.

The plaintiff alleged he contracted mesothelioma as a result of exposure to asbestos dust and fibers while he lived with his father between 1946 and 1955. At that time, the plaintiff’s father worked for Union Pacific Railroad as a maintenance supervisor.  The plaintiff testified that when his father came home from work, he was dusty and dirty. He recalled that when his grandmother would wash his father’s clothes, she would shake them out, creating a cloud of dust. The Court assumed, for purposes of the plaintiffs’ take-home exposure claim at the summary judgment stage, that the plaintiff’s father had, in fact, handled asbestos while at Union Pacific. The question, therefore, was whether Union Pacific was on notice of the dangers of secondary exposure to employees’ family members, and whether Union Pacific should have taken precautions to prevent take-home exposure.

In opposing Union Pacific’s summary judgment motion, the plaintiffs presented a report from an expert who testified that as early as 1913, some industrial employers were aware that hazardous materials could cling to employees’ work clothes and contaminate their homes, and that in the 1950s, experts on occupational cancer began encouraging employers to take protective measures to prevent carcinogenic materials from going home. Plaintiffs’ expert also relied on two documents: (1) a scientific article, published in 1946, that recommended that workers handling carcinogenic materials such as asbestos be provided with showers and rooms for storing street clothes, and (2) a United States Department of Labor document, issued in 1952, requiring that federal contractors be provided facilities to prevent the transfer of harmful substances from work clothes to street clothes. Id. at 7. However, the Court concluded that neither these documents, nor the plaintiffs’ expert’s general opinions about the knowledge of carcinogenic materials clinging to work clothes, addressed the risks of secondary exposure to the families of asbestos exposed workers. In addition, the Court found it significant that the plaintiffs’ expert admitted that if Union Pacific had researched the hazards of secondary asbestos exposure in 1955, it would have found “practically nothing in print.”

Plaintiffs also argued that prior case law recognized the foreseeability of take-home asbestos exposure. However, the Court found these cases distinguishable in a case alleging exposure in and before 1955. For example, in Kesner v. Superior Court of Alameda County, 834 P. 3d 284 (Cal. 2016), the Court considered allegations of take-home exposure dating after 1973; and, in Olivio v. Owens-Illinois, Inc., 895 A. 2d 1143 (N.J. 2006), the claims implicated secondary exposure that stretched from the 1940s to the 1980s. The Court found that these authorities were not sufficient to overcome its conclusion that the “weight of existing law” provides that the dangers of secondary asbestos exposure were not foreseeable in and before 1955.

This court joins a number of jurisdictions that use the foreseeability test to determine whether a duty should be imposed. Questions of whether or not a duty exists, to whom it extends, and when it arises remain to be answered in several jurisdictions across the country. This case will certainly offer support to defendants who are handling take home exposure cases with exposure prior to 1955.