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.

New York

• Pistone v. American Biltrite, Inc. (2nd Dept., 2021). In toxic tort cases an expert opinion must show exposure, general causation and specific causation, and conflicting expert opinions on these points raise a credibility question for the jury rather than permitting summary judgment.
• Sprague v. Abb, Inc. (2021). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's injury; it cannot meet that burden merely by pointing to gaps in the plaintiff's proof.
• Slonim v. J & R Film Co. (In re New York City Asbestos Litigation) (2020). Renewal under CPLR 2221(e) requires new facts that would have warranted a different result. The plaintiffs' private testing of one Moviola did not make inspection of defendants' machines irrelevant, because that inspection could produce material and necessary evidence under CPLR 3101(a).
• Matter of New York Asbestos Litig. (1st Dept., 2020). A defendant seeking summary judgment must first show that the decedent could not have been exposed to its products or their asbestos. Apparent inconsistencies in a witness's testimony raise credibility issues that cannot be resolved on summary judgment.
• Tavernite v. Taco (In re New York City Asbestos Litigation) (2019). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the injury, and conflicting testimonial evidence raising credibility issues cannot be resolved on motion papers.
• Licul v. Mario DiBono Plastering Co. (In re New York City Asbestos Litigation) (2019). On summary judgment in an asbestos case, the plaintiff need only show facts from which the defendant's liability may be reasonably inferred, and a witness's inability to give exact details or contradictory testimony raises credibility issues for the trier of fact.
• Aston v. Algoma Hardwoods, Inc. (2018). After Daimler, a corporation is subject to general jurisdiction only where it is at home (place of incorporation or principal place of business), and registration to do business in New York does not confer it. Specific jurisdiction under CPLR 302(a) requires a connection between the defendant's New York conduct and the claims, which was absent where all exposure and injury occurred in New Jersey.
• Pistone v. American Biltrite, Inc. (2018). Under Parker, Cornell and Juni, a plaintiff must offer a generally accepted scientific basis that the asbestos in the defendant's product can cause the disease and that her exposure to it was high enough to do so. Visible dust or cumulative-exposure theories do not satisfy this requirement.
• In re Johns-Manville Corp. (2016). A person exposed to asbestos before the debtor's petition date holds a prepetition claim even if disease appears later. Such a claim against a Manville subsidiary is discharged by that subsidiary's plan and is also channeled to the Manville Trust under the Manville injunction, and notice by publication plus a future claims representative satisfied due process.
• Wells v. 3M Co. (3rd Dept., 2016). Under CPLR 214-c (2), a defendant seeking dismissal as time-barred must show the plaintiff discovered, or should have discovered, the primary condition underlying the claim (or an indistinct disease) more than three years before suing; separate and distinct diseases may each have their own discovery date.
• Ricci v. Cleaver-Brooks (In re New York City Asbestos Litigation) (2015). A defendant seeking summary judgment must unequivocally show that its product could not have contributed to the plaintiff's injury. Weighing the credibility of equivocal product-identification testimony is a jury function, not a basis for summary judgment.
• Herman v. Abex Corp. (2014). A plaintiff opposing summary judgment in an asbestos case need only show facts and conditions from which exposure to the defendant's product may reasonably be inferred, with evidence viewed in the plaintiff's favor.
• Frieder v. Long Is. RR (2013). A landowner that controls the premises and its employees can owe a duty of care to a diner worker on its property exposed to asbestos dust carried on its employees' work clothes, and circumstantial evidence of exposure can raise a question of fact defeating summary judgment.
• Vega v. Georgia-Pacific, LLC (2013). Whether a raw asbestos supplier's warnings to its customer were adequate, and whether the bulk supplier, sophisticated intermediary or knowledgeable user doctrines apply, are fact questions for a jury; conflicting evidence about which supplier's asbestos was in the joint compound also precludes summary judgment.
• Bischofsberger v. AO Smith Water Products (2012). A court may join cases for trial under CPLR 602 where common questions exist, and in asbestos cases it weighs the Malcolm factors (work site, occupation, time of exposure, disease, living or deceased, discovery status, same counsel). Joinder was denied because the cases would share too little testimony to serve judicial economy.
• 8th Jud Dist Asbestos Litig (Erie, 2006). Under the New York Court of Appeals' duty analysis, an employer owes no duty to an employee's spouse for take-home asbestos exposure absent a relationship with her, and OSHA regulations create no private right of action or duty to her. Possessing asbestos pipe insulation in a building is not an abnormally dangerous activity.
• Holdampf v. Port Authority of New York and New Jersey (Matter of Nyc Asbestos Litig) (2005). Under New York law, an employer or landowner owes no duty of care to an employee's household member allegedly injured by asbestos dust brought home on work clothes, because no relationship between the defendant and the plaintiff creates such a duty.
• Holdampf v. The Port Authority of New York and New Jersey (In re New York City Asbestos Litigation) (1st Dept., 2004). An employer that permits asbestos use at its work sites may owe a duty of care to members of an employee's household exposed at home to dust from the employee's work clothes, if it knew or should have known of that risk. The duty is limited to household members, and the Port Authority did not show a lack of duty as a matter of law.

North Carolina

• Barkley v. 4520 Corp., Inc. (2022). Under North Carolina law, a plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is responsible. Prior depositions from cases in which the defendant was not present cannot be used against it, and an affidavit lacking personal knowledge or contradicting earlier deposition testimony may be disregarded.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to a specific defendant's asbestos product (Lohrmann test), and a contractor owes no duty to the spouse of a non-employee for take-home exposure absent a special relationship involving control.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to an asbestos-containing product for which the defendant is legally responsible (the Lohrmann test). Contracts and passing hearsay mentions of a contractor did not supply that evidence.

North Dakota

• Palmer v. 999 Quebec, Inc. (2016). Whether a duty is owed in a take-home asbestos case, whether judged by foreseeability of injury, the relationship of the parties, or both, depends on evidence of the defendant's knowledge of asbestos dangers or a special relationship, and the plaintiff offered none.

Ohio

• Schwartz v. Honeywell Internatl., Inc. (2018). Under R.C. 2307.96, a theory of causation based only on cumulative exposure to various asbestos-containing products cannot show that exposure to a particular defendant's product was a substantial factor in causing the disease. The plaintiff must show this through the manner, proximity, frequency and length of exposure to that defendant's asbestos.
• Schwartz v. Honeywell Internatl., Inc. (8th Appellate District, 2016). Expert testimony on cumulative asbestos exposure and brake dust causing mesothelioma was admissible without quantified dose, and evidence of manner, proximity and frequency of exposure met Ohio's substantial factor test (R.C. 2307.96). Evidence that a feasible non-asbestos alternative existed supported the design defect claim, and enough evidence of flagrant disregard existed that punitive damages should not have been taken from the jury.
• Boley v. Goodyear Tire & Rubber (2010). Under R.C. 2307.941(A), a premises owner is not liable in tort for claims arising from asbestos exposure originating from asbestos on the owner's property unless the exposure occurred at the owner's property. The phrase "on the premises owner's property" refers to where the asbestos was located, not where the exposure happened.
• Adams v. Goodyear Tire & Rubber Co. (8th Appellate District, 2009). Under R.C. 2307.941(A)(1), a premises owner is not liable for asbestos injury unless the individual's exposure occurred on the premises owner's property, and the statute's reference to asbestos on the owner's property refers to the origin of the asbestos. A premises owner owes no duty of care to a person not exposed on its premises, so take-home claims fail.
• Vince v. Crane Co. (8th Appellate District, 2007). Under Horton v. Harwick, a plaintiff must show that exposure to a particular defendant's product was a substantial factor in causing the injury. Merely placing a defendant's asbestos product in a plant where relatives worked, without evidence of how the second-hand exposure contributed to the disease, does not meet that burden.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, duty of care depends on foreseeability and policy considerations; where the husband's exposure was intermittent and non-occupational, take-home harm to his wife was not foreseeable as a matter of law and no duty was owed.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, a manufacturer owes no duty to warn a worker's wife who was exposed only by laundering his work clothes, because she is not a foreseeable user. The negligence duty of care also failed because take-home harm from the boilers was not foreseeable on this record.
• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, which governed because Oklahoma was the place of diagnosis and the plaintiffs' domicile, a non-asbestos-manufacturing employer owed no duty to a worker's wife for take-home exposure where the worker's own exposure was intermittent and nonoccupational and the risk to her was not foreseeable in the relevant period.

Other federal courts

• Wilde v. Huntington Ingalls, Incorporated (2015). To remove under the federal officer removal statute, a contractor must show a causal nexus between its actions under federal direction and the plaintiff's claims, and a colorable federal defense. Without evidence the exposed worker was around the federally directed work, or details of the claimed government specifications, the contractor cannot show a likelihood of success.
• Martin v. Cincinnati Gas and Electric Company (2009). Under Kentucky law, a negligence claim needs evidence that the defendant's product was a substantial factor in causing the harm, and a duty depends on whether the risk was foreseeable from what the defendant knew or should have known at the time. The record did not show that the danger of household exposure to asbestos on work clothes was known or knowable to the defendants in the 1950s and early 1960s, so they owed no duty.
• Rohrbaugh v. Celotex Corp. (1995). Under the law of the case doctrine, an appellate court's earlier holdings, explicit or by necessary implication, govern later stages of the same case. The earlier ruling that the plaintiff was not a foreseeable user and that the manufacturer had no reason to know of the hazard defeated both the products liability and negligence claims.
• Rohrbaugh v. Owens-Corning Fiberglas Corp. (1992). Under Oklahoma manufacturer's products liability law, the duty to warn extends only to ordinary consumers and users, and arises only when the manufacturer knew or should have known of the hazard; a wife exposed through her husband's work clothes was not owed a duty to warn.
• Dube v. Pittsburgh Corning (1989). The FTCA discretionary function exception covers only conduct involving a permissible exercise of policy judgment; the Navy's negligent failure to warn domestic bystanders of asbestos dangers, made without any policy decision while operating a shipyard like a private owner, is not shielded.

Pennsylvania

• Wagner v. Standard Steel, Lcc (2017). A bankruptcy court order approving a Section 363(f) asset sale free and clear of all interests and claims bars later successor-liability tort claims against the asset purchaser, even for claims that had not yet arisen at the time of sale. The Frenville line of cases on discharge of claims does not apply to an asset purchase sale.
• Ney v. Owens-Illinois (In re Asbestos Products Liability Litigation) (2016). Removal more than one year after commencement is allowed where the plaintiff acted in bad faith to prevent removal; joining a non-diverse defendant with no reasonable basis in fact or law, such as one shielded by a binding successor-liability statute, supports that finding.
• Gillen v. Boeing Company (2014). Applying the Althaus factors, the court predicted that Pennsylvania's highest court would not hold an employer and premises owner owes a duty to an employee's spouse for take-home asbestos exposure from laundering work clothes.
• Groover v. CBS Corporation (2014). Under the frequency, regularity and proximity standard, a plaintiff must make some affirmative showing that the plaintiff or decedent breathed dust from the particular defendant's product; working with or around the product is not enough.
• Haldaman v. Eaton Corporation (2014). To survive summary judgment, a plaintiff must show frequent, regular and proximate exposure to the specific defendant's asbestos-containing product. Showing only that asbestos was generally present in the workplace is not enough.
• Crawford v. Alcoa (In re Asbestos Products Liability Litigation) (2014). A district court in an asbestos MDL does not abuse its discretion by dismissing a case under Rule 41(b) when the plaintiff fails to submit a medical report meeting the court's AO 12 requirements, even without expressly applying the Poulis factors. Strict compliance with MDL case management orders is especially important.
• Vest v. McDonnell Douglas Corp. (In re Asbestos Products Liability Litigation) (2011). When removal rests on the federal officer removal statute, the thirty-day removal window begins once the record shows facts supporting the statute's requirements, such as specific military product identification and a causal nexus. A defendant cannot wait for later expert testimony or depositions that add no new facts.
• Anderson v. Bondex Int'l (In re Asbestos Products Liability Litigation) (2009). An amended pleading relates back under Rule 15(c)(1)(B) only if it arises from the conduct, transaction or occurrence set out in the original pleading; facts differing in time and type do not relate back, and an amendment that would be time-barred is futile. Defendants' notice from discovery does not substitute for a common core of operative facts in the two pleadings.

Rhode Island

• Day v. 3M Company Inc. (2024). Expert opinion based on the 'each and every exposure' theory is scientifically valid and admissible under Rule 702, and the 'frequency, regularity, and proximity' showing goes to a defendant's ultimate liability rather than to admissibility. An expert may not give an opinion that lacks a factual basis, but may rely on record evidence that supports it.
• Day v. 3M Company Inc. (2024). Rhode Island's frequency, regularity and proximity test governs asbestos causation, and it is applied less strictly in mesothelioma cases. Removing an electrical panel is not a 'subsequent alteration or modification' of the product under G.L. 1956 § 9-1-32.
• Stadtler v. Aurora Pump Co. (2022). Under Rhode Island's liberal discovery rules, requested documents need only be relevant to the subject matter of the suit and reasonably calculated to lead to admissible evidence. A defendant cannot defeat a motion to compel by arguing that the plaintiff's existing evidence is too weak to establish its liability.
• Nichols v. Allis Chalmers Product Liability Trust (2018). Under Rhode Island's ad hoc duty analysis, an employer owes a duty to a member of an employee's household who is exposed to asbestos dust on the employee's work clothes, where the harm was foreseeable. At summary judgment, the frequency, regularity, proximity test is met by evidence of regular exposure and an expert opinion on cumulative exposure.

South Carolina

• Covil Corporation EX rel. Protopapas v. Pennsylvania National Mutual Casualty Insurance Company (2024). The notice-prejudice rule applies only where innocent third parties' rights are at stake, but an insurer may escape coverage for late notice only if the insured's breach of the notice provision was material under Restatement (Second) of Contracts § 241. Attending mediation and expressing willingness to contribute did not waive the notice right, and the products hazard and completed operations exclusions did not apply.
• Covil Corporation EX rel. Protopapas v. Pennsylvania National Mutual Casualty Insurance Company (2022). An insurer's attendance at mediation and expressed willingness to contribute to a settlement can support an inference that it waived its policy's timely-notice requirement. The products hazard and completed operations exclusions did not apply where the asbestos exposure occurred during the insured's ongoing work within the policy period.
• Bradley v. Richland County Landfill, Inc. (2014). A private entity does not act under a federal officer merely by complying with federal regulations that set minimum standards. To show a causal connection, defendants must show federal control prevented them from meeting their state law duties.