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Shapiro & Appleton

Family Members Who Contract Asbestos Cancers-“Take Home” Asbestos Cases Create Difficult Legal Issues

Posted on Nov 06, 2007
What happens if an employee carries asbestos home on their clothing, and decades later a spouse or even a child contract asbestos induced cancer (mesothelioma terminal cancer) and the only known source known is from the parent who worked at a plant or factory? The answer is many courts around the country have a allowed such claims but some states have denied liability of the employers on the argument that the family member did not have a “foreseeable” cause relationship with the employer. Some courts have reasoned that its foreseeable that the employee could develop the disease, but not the family member who never even went to the employment place/factory. These so called “take home” asbestos cases are creating controversy around the country. In August, 2007 an appeals court in Washington State reversed the dismissal of a suit by a spouse of a Kimberly-Clark employee who merely washed her husband’s clothes nightly and then developed mesothelioma asbestos cancer. Washington’s court ruled the suit should go forward. However, also in 2007 a Michigan Supreme Court ruled otherwise and found that the Ford Motor Company did not have a duty to protect the step-daughter of a former worker, because she had never been on Ford property. Mesothelioma cancers develop over 30-50 years and this explains in many ways why these cases are still arising now. A case arising now can relate to exposure of a worker in the 1950's, 60's or 70's. As of now, the highest state courts in Georgia, Michigan, and New York have rejected these “take home” suits but New Jersey and Indiana have allowed them, along with Washington state. In Virginia, where our law firm is based, a court recently allowed a Plaintiff named Mitchell to proceed against Dupont where a parent brought the asbestos on work clothes into the home, and his wife later contracted mesothelioma. In the Mitchell case in Virginia, according to the court’s opinion and published reports, Mr. Mitchell had been an engineer for Dupont in Virginia where he was regularly exposed to asbestos. The court ruled that Dupont knew or should have known that asbestos exposure was involved in Mr. Mitchell’s employment but the court ruled that it failed to warn he or his wife of any dangers about the possible at-home exposure to asbestos fibers. The Virginia court decided the “test” wast whether it was reasonably foreseeable that the consequences of Dupont’s actions, considering that it used a dangerous instrument or article, in a manner and under circumstances in which Dupont knew or should have known that it could likely produce injury.. The Plaintiffs in Mitchell argued that asbestos is a dangerous article. Mitchell argued that Dupont had a duty to take actions to prevent reasonably foreseeable harm to others such as Mr. Mitchell’s wife. However, the Mitchell case has not reached the highest court in Virginia but it is strong authority that Virginia permits these types of claims, if the evidence reaches the level examined by the Court in the Mitchell case.
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