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The Issue of Liability Tests for Secondary Asbestos Exposure

By Shaniqua Williams

Posted on May 29th, 2017

It can be difficult to parse out an employer's responsibility for the serious health problems caused by secondary asbestos exposure. The absence of a direct relationship between the victim and the employer often leads state courts to reject legal claims for secondary asbestos exposure.

Occupational asbestos exposure is responsible for the vast majority of mesothelioma cases, as workers in industries such as construction or shipbuilding were exposed to huge amounts of airborne fibers on a regular basis before the 1980s. However, while between 70-80% of asbestos victims were exposed in the workplace, the rest are struggling with devastating diseases as a result of environmental or secondary asbestos exposure.

Asbestos Exposure Percentage

Due to their rough texture and microscopic size, asbestos fibers can easily become embedded in fabrics. As industrial hygiene was commonly overlooked by most companies that manufactured or used asbestos products, employees were not required to change their clothes at the end of the shift and thus brought home asbestos fibers. Some people even remember leaving work covered in asbestos dust.

Therefore, family members were often exposed to asbestos indirectly, either by interaction with a family member carrying asbestos dust or by dusting and washing their work clothes. Around 8% of asbestos victims are women and most of them developed an asbestos disease as a result of secondary exposure.

Frequency, Regularity, and Proximity Test for Causation of Asbestos Exposure

To succeed in an asbestos exposure case, the plaintiffs - primary as well as secondary exposure victims - must prove that asbestos attributable to the defendant was a cause of the injury. For the proof of causation in asbestos, the Superior Court has adopted the frequency, regularity, proximity test.

To satisfy the frequency, regularity, proximity test, the plaintiff must present evidence showing exposure:

  • To a particular product, regularly
  • Over an extended period and
  • In proximity to where the plaintiff worked

However, the tests employed to determine liability in the case of secondary asbestos exposure are not compulsory and may vary from state court to state court. For this reason, depending on where the lawsuit is filed, individuals who suffered from secondary asbestos exposure may have difficulty in recovering financial compensation.

When it comes to secondary asbestos exposure, each state applies its own set of rules to determine if the defendant can be held accountable for the plaintiff's injury, which occasionally results in claims getting rejected.

The most problematic aspect of secondary asbestos exposure lawsuits is the absence of a relationship between the victim and the employer, which makes it challenging for state courts to decide if the defendant is responsible. North Dakota and New Jersey are two of the states that have recently rejected secondary asbestos exposure claims based on the inability to find the defendants liable.

North Dakota High Court Rejects Secondary Exposure Asbestos Claim

On January 14, 2016, the North Dakota Supreme Court rejected the claim of Gary Palmer, who was diagnosed with mesothelioma in 2011 as a result of secondary asbestos exposure. The man was exposed to carcinogenic fibers in his childhood, between 1961 and 1974, by coming in contact with his father's clothes, as well as by playing near the laundry area in their home. Palmer's father was supplying and installing asbestos-containing insulation through industrial and commercial contract work.

As Palmer passed away in March 2015, his wife stepped in as a plaintiff to pursue the case. Defendant A.W. Kuettel & Sons, Inc., for which the plaintiff's father had worked for nine years, argued that it owed Palmer no duty of care, since there was no special relationship between the two of them, and sought summary judgment. The employer also asserted that it could not be held accountable for the man's injury because it was not the producer of the asbestos products Palmer was exposed to. In opposition, the plaintiff argued that the court should have taken into account the foreseeability of Palmer's injury in assessing the defendant's liability.

However, the North Dakota Supreme Court agreed with A.W. Kuettel & Sons, Inc., noting that negligence cases in the state have historically "focused on both foreseeability of the injury and the relationship of the parties in deciding whether a duty exists". Thereby, Palmer's claim would have been rejected regardless of which aspect the court had focused on, as he also failed to provide evidence that his father's former employer was aware of the health hazards of secondary asbestos exposure.

New Jersey Superior Court Rejects Secondary Exposure Asbestos Claim

Plaintiff Sandra Brust was diagnosed with mesothelioma in October 2010 after having been indirectly exposed to asbestos in her childhood by contact with her father's work clothes, who was a train operator, yard operator, and supervisor with Port Authority Transit Corporation (PATCO) between 1970 and 1977. Brust also ascribed her illness to her father's replacing automobile brakes on cars at home and to her helping her mother wash his asbestos-laden work uniform. The lawsuit was filed against multiple defendants, including:

  • Foster Wheeler Energy Corporation
  • Union Carbide Corporation
  • Amsted Industries, Inc.
  • Port Authority Transit Corp.
  • Kawasaki Rail Car, Inc.
  • Rockwell Automation, Inc.
  • Trinity Industries

While the lawsuit was still pending, Brust passed away and her husband stepped in as a plaintiff. The New Jersey state appeals court concluded that the evidence provided by the plaintiffs was insufficient to support a causal relation between Sandra Brust's diagnosis and secondary asbestos exposure since it did not meet "frequency, regularity, and proximity test", and the lawsuit was consequently dismissed. The panel said that "during those eight years, Brust was exposed to asbestos through contact with her father while he handled asbestos-contaminated brake shoes on at most four occasions, and through washing his clothes on at most eight occasions." When inquired about the liability test, the court stated it had previously been in favor of a plaintiff who "alleged she developed mesothelioma as a result of laundering her husband's asbestos-laden work clothes over a forty-year period".

The application of product and premises liability tests is undoubtedly a complex and difficult endeavor for state courts, as there are numerous factors that come into play when a secondary asbestos exposure case is examined. At the same time, it is the aspect on which the financial fate of take-home asbestos victims depends primarily and one of the many reasons why asbestos litigation is so challenging. While the implementation of standardized tests might make it easier for state courts to determine liability, developing a clear, effective set of criteria is nearly impossible, as each asbestos case is unique and requires an individualized approach.

Successful Secondary Asbestos Exposure Trust Funds Claims

Claimants indirectly injured by asbestos are eligible for financial compensation and many have been awarded compensation after getting diagnosed with lung cancer, mesothelioma, asbestosis or other asbestos diseases. To bring a successful legal claim, claimants have to trace their exposure to a defendant who is liable for failure to warn or protect against the dangers of asbestos.

However, it can be a challenge for secondary asbestos exposure victims to establish liability. Asbestos diseases can have a latency period of 20 to 50 years. Also, when filing a successful claim, secondary asbestos victims must be able to:

  • Identify the source of asbestos
  • Show fault for failure to warn of the danger of exposure or failure to protect against the danger

Someone who did not directly work with asbestos-containing products may not know what materials contributed to their exposure. This is most common when the family member who was directly exposed to asbestos has passed away.

A successful asbestos claim usually involves asbestos attorneys, that specialize in investigating exposure on the job and can find out the work history of a family member who was directly exposed to asbestos. If you, or a loved one, have been diagnosed with an asbestos disease after suffering secondary exposure, we are here to help. Contact our experienced mesothelioma lawyers that offer a free initial consultation and know how to investigate and find information to support your secondary asbestos exposure case.

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