Take-Home Exposure in Asbestos Cases

Decisions in our library in which the court ruled on duty to family members exposed to dust brought home (take-home: 238 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

Louisiana

• Legendre v. Lamorak Insurance Company (2021). Summary judgment on successor liability was improper because genuine issues of material fact existed about what assets and liabilities Mestek intended to acquire from Wing and legally assumed under the 1987 Asset Purchase Agreement.
• Legendre v. Lamorak Insurance Company (2021). Under the federal officer removal statute, a contractor need only show a colorable federal defense and a connection to acts taken under federal direction. Factual disputes are resolved in favor of federal jurisdiction, and a government contractor defense is colorable when it is plausible.
• Hernandez v. Huntington Ingalls Incorporated (2020). A Rule 12(e) motion for more definite statement is disfavored and is granted only if the pleading is so excessively vague as to be unintelligible and to seriously prejudice the defendant; additional facts should be sought through discovery.
• Hernandez v. Huntington Ingalls, Inc. (2020). Under Louisiana's duty-risk analysis, it is plausible at the pleading stage that a plant operator owed a duty to a non-household third party exposed to asbestos dust on its workers' clothing, and no Louisiana precedent limits such a duty to household members.
• Waguespack v. Avondale Industries, Inc. (2020). In federal officer removal, the 30-day removal clock starts from the initial pleading only if it affirmatively reveals on its face the allegations supporting removal; otherwise a later 'other paper' such as a deposition transcript can start the clock under § 1446(b)(3).
• Rodrigue v. Anco Insulations, Inc. (2019). Where the movants pointed to insufficient record evidence on an essential element and the non-moving parties submitted no evidence showing a genuine factual dispute, summary judgment is proper under Celotex.
• Guillot v. Avondale Industries, Inc. (2018). Federal officer removal under 28 U.S.C. § 1442(a)(1) still requires a causal nexus between the defendant's conduct under federal direction and the plaintiff's claims. The 2011 "relating to" amendment did not change this under binding Fifth Circuit precedent, and federal direction to use asbestos does not reach failure-to-warn or safety claims when the government did not control safety.
• Legendre v. Huntington Ingalls, Incorporated (2018). Under the circuit's binding Bartel precedent, federal officer removal of negligence claims requires a causal nexus, and none exists where the government did not restrict the contractor's freedom to adopt the safety measures the plaintiffs say would have prevented the injury.
• Rivera v. Huntington Ingalls, Inc. (2018). A court decides a motion to remand under the federal officer removal statute on the claims pleaded at the time of removal, so a post-removal disclaimer of strict liability claims does not defeat the causal nexus. Avondale showed a colorable government contractor defense, and strict liability claims based on mere use of asbestos satisfy the causal nexus requirement.
• Coleman v. Anco Insulations, Inc. (2017). Rule 30(b)(6) topics must be relevant and proportional; general 'dust' topics were cumulative of the asbestos-specific topics, and post-employment information was not shown to be relevant because the tortious exposure period was during the decedent's employment.
• Legendre v. Huntington Ingalls Inc. (2017). Under Fifth Circuit law (Bartel, Savoie, Zeringue), a Louisiana wrongful death claim against a shipyard sounds in negligence, and the government's requirement to use asbestos does not create a causal nexus to the shipyard's discretionary safety decisions, so federal officer removal fails.
• Loupe v. Pennsylvania General Insurance Company (2016). Under 28 U.S.C. § 1446(b)(3), a deposition transcript that is unequivocally clear and certain about facts supporting federal officer removal is "other paper" that starts the 30-day removal clock, and first-hand knowledge by the witness is not required.
• Sutherland v. Alma Plantation, LLC (4th Circuit, 2016). Summary judgment on duty is proper only where no duty exists as a matter of law and no factual disputes exist. Louisiana recognizes that employers may owe a duty to household members exposed to asbestos carried home on work clothes, and factual issues on foreseeability required a trial.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2015). An asbestos exposure expert need not calculate the specific dose or concentration of asbestos from a defendant's product to give a reliable causation opinion, and a motion in limine cannot substitute for a summary judgment motion on whether exposure to the defendant's product occurred.
• Abadie v. Asbestos Corp. Ltd. (5th Circuit, 2014). Under La. C.C.P. art. 2162, an appeal can be dismissed by consent of all parties.
• Najolia v. Northrop Grumman Ship Systems, Inc. (2014). Under Louisiana law, the mere presence of asbestos-containing material, or a supplier's sale of such material to a shipyard, is not enough to hold that supplier liable; plaintiffs must produce evidence that the worker was exposed to the defendant's product.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). A turbine manufacturer is not liable for asbestos-containing insulation made and attached by third parties, and plaintiffs' conclusory statements about Westinghouse's involvement in installing it did not create a fact issue.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). Under Louisiana law, an intentional tort requires proof that the harm was substantially certain to follow from the conduct, and mere knowledge of an asbestos risk is negligence, not intent. Louisiana recognizes no substantive tort of civil conspiracy.
• Cook v. Asbestos Corporation Ltd. (5th Circuit, 2013). Under amended La. C.C.P. art. 966, only evidence formally admitted at the summary judgment hearing may be considered, including on de novo appeal; evidence merely attached to the motion or opposition is not considered.
• Francis v. Union Carbide Corporation (4th Circuit, 2013). Summary judgment was improper in a take-home asbestos case where the record showed the father worked at a shipyard where asbestos materials were used and the plaintiff was around his dusty work clothes, creating genuine issues of material fact on exposure.
• Pitman v. Crane Co. (2013). A removing defendant must show no reasonable possibility of recovery against the in-state defendant to establish improper joinder. Pointing to the plaintiff's lack of evidence early in discovery is not enough, and limited discovery is proper only to find discrete, undisputed facts that preclude recovery.
• Grant v. American Sugar Refining, Inc. (4th Circuit, 2007). On summary judgment a court cannot make credibility determinations or weigh evidence, and expert affidavits are tested only under the Daubert-Foret standards without evaluating their persuasiveness. Circumstantial evidence of the defendant's insulation work at the premises can create a genuine issue on exposure.
• Lerille v. Monsanto Corporation (2007). Under Louisiana law, state-court consolidation of two suits does not merge them unless the record shows intent to do so, so the 30-day removal period for one suit is not restarted by service in the other. The earlier suit's removal was therefore untimely under 28 U.S.C. § 1446(b).
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.
• Zimko v. American Cyanamid (4th Circuit, 2005). An employer is immune from tort suit under workers' compensation exclusivity unless it committed an intentional act, which requires intent to injure or knowledge that injury was substantially certain; knowingly maintaining a dangerous asbestos workplace is only negligence. An employer owes a duty of reasonable care to household members of employees exposed to asbestos carried home on the employee's clothing or person.

Maryland

• Basil-Flippen v. General Electric Company (2024). Strict products liability requires that the product have left the seller's possession or control. A seller that is also contractually obligated to install the product retains control until installation is complete, so strict liability does not apply to injuries arising during installation.
• Estate of Schatz v. John Crane, Inc. (2018). Under Georgia-Pacific v. Farrar, a manufacturer's duty to warn a household member of take-home asbestos exposure depends on foreseeability weighed against policy factors including the parties' relationship and the feasibility and effectiveness of a warning; with no feasible or effective warning shown, no duty existed.
• Hiett v. Ac&r Insulation Co., Inc. (2017). Under Georgia Pacific v. Farrar, an installer or distributor of asbestos products owes no duty to warn a household member of a worker-bystander for pre-1972 exposures. No practical way existed for a warning to the worker to avoid the harm, even if the defendant knew the danger. Farrar does not set a bright-line rule, but the plaintiffs' added facts did not distinguish it.
• Sherin v. John Crane-Houdaille, Inc. (2014). Under Maryland law, a supplier owes no duty to warn unless a better warning could feasibly and effectively have prevented the harm, and the plaintiff must offer evidence that improved warnings to intermediaries would have prevented the take-home exposure. Testimony about the manufacturer name on a product container is circumstantial evidence of the manufacturer, not hearsay.
• Georgia Pacific v. Farrar (2013). Whether a manufacturer owes a duty to warn a household member of take-home asbestos exposure depends on what the manufacturer knew or should have known when the warning was due and on whether a warning could feasibly be given and be effective. Foreseeability alone does not establish the duty. In 1968-69 no such duty existed toward a household member.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• ACandS v. Abate (1998). A plaintiff may use other witnesses to identify the asbestos products he was exposed to, but must show regular, frequent exposure near the specific product's use, and fiber drift across a workplace is not enough. A contractor in a mixed sale-and-service transaction is not strictly liable if its predominant purpose was service, so the jury must be instructed on that test.
• Adams v. Owens-Illinois (1998). A trial judge's rulings on juror challenges, new trial motions and evidence are reviewed only for abuse of discretion, and the appellate court does not reweigh the evidence or expert credibility. Absent a showing of prejudice, and given a verdict that is not irreconcilably defective, the judgments stand.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.

Michigan

• In re Certified Question From the Fourteenth District Court OF Appeals OF Texas (2007). Under Michigan law, a duty depends on the parties' relationship, foreseeability, the burden on the defendant and the nature of the risk. A property owner owes no duty to a person who was never on or near its property to protect her from asbestos fibers carried home on a household member's work clothes, where there was no further relationship.

Minnesota

• James v. 3M Corporation (2008). Specific personal jurisdiction requires the defendant's forum contacts to be sufficiently connected to the plaintiff's claim; incidental airport travel, speculative use of Minnesota subcontractors and possible product purchases did not meet that standard, and a plaintiff's later move to the forum cannot create jurisdiction.

Missouri

• Pickard v. Dap, Inc. (2014). A removing defendant claiming fraudulent joinder must show there is no reasonable basis in fact or law for a claim against the resident defendant, with doubts resolved in favor of remand; unclear deposition evidence did not meet that burden.
• Goede v. Aerojet General Corporation (Eastern District, 3rd Division, 2004). A trial court may, under Rule 61.01, direct that ultimate facts be taken as established as a sanction for false discovery answers, and may apply different states' laws to liability and damages under the Restatement's most-significant-relationship test. Submissibility and instructional objections not raised at trial or in the directed-verdict motion at the close of all evidence are not preserved.

Nevada

• Potter v. Crane Co. (2022). In an asbestos claim a plaintiff must show that the particular defendant sufficiently exposed him to asbestos; without a product traceable to the defendant, negligence, strict liability and conspiracy claims fail, and a holding company is not liable for its subsidiary absent a successor-liability exception.

New Jersey

• Estate OF Brust v. Acf Industries, LLC (2015). The Locomotive Inspection Act preempts state-law design and failure-to-warn claims about locomotive equipment even when the user is an urban rapid transit operator not subject to federal railroad regulation. A plaintiff must show asbestos exposure to the defendant's product that was frequent, regular and in close proximity to establish substantial-factor causation.
• Kaenzig v. Charles B. Chrystal Company, Inc. (2015). In an asbestos failure-to-warn case, a plaintiff must prove product-defect causation and medical causation, and exposure is a substantial factor if it meets the frequency, regularity and proximity test. Discovery of a non-testifying consulting expert's facts or opinions requires exceptional circumstances.
• Brust v. Acf Industries, LLC (2011). Under the well-pleaded complaint rule, a state common-law premises liability claim against a bi-state entity does not raise a federal question merely because the entity may assert a defense that requires interpreting its interstate compact.
• Anderson v. AJ Friedman Supply Co. (2010). An employer shielded by workers' compensation exclusivity for an employee's direct occupational exposure can still be sued under a dual persona theory for a separate duty owed to the employee's spouse for take-home asbestos exposure. Fault need not be allocated to the employer in its capacity as the plaintiff's own employer.
• Olivo v. Owens-Illinois, Inc. (2006). A landowner that owes a duty to workers on its premises for the foreseeable risk of asbestos exposure also owes a derivative duty to a spouse who handles the worker's contaminated work clothing, unless the hazard-incident-to-the-work exception for independent contractors' employees means no duty is owed to the worker.
• Olivo v. Exxon Mobil Corporation (2005). Under New Jersey's fairness-and-foreseeability duty analysis, a landowner that knew of asbestos hazards owed a duty to a worker's spouse who predictably came into contact with his asbestos-laden work clothes at home. The court limited the duty to the spouse and declined to extend it to unpredictable contacts such as car pool members.

New York

• Pefanis v. AO Smith Water Prods. Co. (2024). On summary judgment in an asbestos case, the defendant must unequivocally establish that its product could not have contributed to the plaintiff's injury; conflicting testimony and competing expert opinions raise fact issues that preclude judgment.
• Savianeso v. Aerco Intl., Inc. (2024). A moving defendant must affirmatively show its product could not have contributed to the plaintiff's disease; the court found Bakers Pride met that burden and plaintiff's expert, who did not quantify the secondhand exposure, did not raise a factual issue.
• Sides v. Advance Auto Parts Inc. (2023). A defendant meets its summary judgment burden by showing that the exposure witness never identified its product, and the plaintiff must then produce admissible evidence of a triable issue of fact; speculation or unsubstantiated assertions are not enough.
• Niedert v. Amchem Prods., Inc. (2022). A summary judgment movant must first make a prima facie showing on causation; a general dose-reconstruction analysis that does not address the plaintiff's specific exposure, together with a competing expert view on asbestos and lung cancer, leaves a factual dispute for a jury.
• Kriz v. Air & Liquid Sys. Corp. (Rockland, 2021). An asbestos defendant seeking summary judgment must first show that its product could not have contributed to the plaintiff's injury, and cannot meet that burden by pointing to gaps in the plaintiff's proof. A duty to warn in a take-home exposure case can extend to a roommate who lived in close quarters with the worker.