On September 7, 2016, the California Supreme Court heard oral arguments on two cases involving claims of "take home" asbestos exposure. Facing two contradictory published appellate decisions on the issue of "take home" exposure, the California Supreme Court scheduled oral argument on both cases to occur simultaneously. Resolving these kinds of conflicts is central to the California Supreme Court and its decision on the issue of "take home" exposure will likely impact asbestos litigation in California for years to come.
Under this developing theory of liability, plaintiffs claimed to have been exposed to asbestos from the contaminated work clothing of family members, and not from their use of a defendant's product or from their work at a defendant's premises. Claims for "take home" exposure are being litigated throughout the United States and numerous State Courts are now grappling with this new theory of liability.
In California, two conflicting appellate decisions have now compelled the California Supreme Court to step into the debate over "take home" exposure claims. In Kesner, the trial court granted the defendant's motion for nonsuit in a case where plaintiff alleged take home exposure through the work clothing of his uncle, an employee at the Abex brake plant. The trial court ruling was later overturned in a published decision by the First Appellate District, Kesner v. Pneumo Abex LLC (2014) 226 Cal.App.4th 251. In a second "take home" exposure case, Haver, the trial court granted defendant's demurrer to the complaint in a case where plaintiff claimed exposure through the work clothing of her former husband, an employee at the BSNF railyard. The Second Appellate District later affirmed the trial court decision in a published opinion, Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104.
The debate over "take home" exposure claims in California directly relates to how the California Courts define and manage negligence cases. For California, Civil Code section 1714 lies at the heart of this debate. Under this Code provision, "all persons are required to use ordinary care to prevent others being injured as the result of their conduct." Nearly all negligence claims in California are based upon this broadly worded Code provision. In a seminal decision from the late 1960s, Rowland v. Christian, the California Supreme Court explained that this general principal of negligence liability has two exceptions; one based on statutory carve outs by the California legislature and the second based on public policy considerations. Since the California legislature has not yet addressed the issue of "take home" exposure, the California Courts have based their "take home" exposure decisions on the seven Rowland public policy factors: foreseeability, certainty of injury, connection to defendant's conduct, more blame, policy of preventing future harm, burden to defendant and to the community, and the availability of insurance. Based on these policy considerations, the California Appellate Courts have now reached conflicting decisions; some deciding that public policy should bar "take home" exposure claims, others reaching the opposite conclusion.
At oral argument to resolve the conflict over "take home" exposure claims, the California Supreme Court lived up to its well-deserved reputation as an active bench. Every one of the Justices posed questions, raised issues and sought information from both plaintiff and defense counsel. Although one should never read too much into the questions raised by the Justices at oral argument, especially when the issue involves broad considerations of public policy, the questions raised at oral argument suggest that the Justices are concerned with the recent limitations imposed on "take home" exposure claims.
At the outset, the Justices discussed what is considered the most significant of the public policy considerations, foreseeability of harm. Focused on the issue of foreseeability, Chief Justice Tani G. Cantil-Sakauye and Justices Goodwin H. Liu, Kathryn M. Werdegar, and Mariano-Florentino Cuéllar all raised questions about the 1972 OSHA regulations which identify contaminated work laundry as a potential hazard. As the Justices observed, the OSHA regulations appeared to have placed defendants on notice that there were health hazards associated with contaminated work clothing to both the worker and their family members. In addition to the OSHA Regulations, the Court was also asked to consider additional work site documents from the 1970s that discussed the potential hazards of asbestos contaminated laundry to family members. From these two separate sources of information, the Justices appeared swayed by the argument that "take home" exposure was a foreseeable risk, at least by the mid-1970s.
In addition to discussing the issue of foreseeability, the Justices also focused on several of the remaining Rowland public policy factors. Addressing the burden to the defendants and to the community, Justice Werdegar raised concerns as to whether an affirmative ruling on "take home" exposure claims might unleash a "flood gate" of litigation. To alleviate the Court's concern, plaintiff counsel focused both on the limited number of mesothelioma cases diagnosed every year as well as the other options available to the Courts for disposing of unsupported or tenuous claims. In response, defense counsel raised concerns that the Court ruling might not be limited to immediate family members but could extend to commuters, bartenders or others who encounter someone with contaminated work clothing. Defense counsel also highlighted the liability burden their clients would face. Premise owners would now face liability for an individual who never actually visited its premises and who claimed exposure to asbestos products that the premise defendant did not make, install or disturb. Defense counsel also observed that because insurance policies now excluded claims for asbestos exposure, defendants face significant financial liability and may eventually be driven into bankruptcy.
Although a final decision will not be published for several months, the comments of the California Supreme Court Justices suggest that defendants may soon face an uphill battle in challenging "take home" exposure claims. Once the Court issues its final ruling and resolves the conflict between the Kesner and Haver decisions, California might one day see claims for "take home" exposure from laundry services, bus drivers, commuters and others. While a final decision has not yet been reached, California once again appears poised to break new ground in the world of asbestos litigation.