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.

South Carolina

• Murphy v. Owens-Corning Fiberglas Corp. (2003). For a latent disease tort claim by a nonresident against a foreign corporation, the Door Closing Statute is satisfied if the corporation's activities that allegedly exposed the victim to the harmful substance, and the exposure itself, occurred in South Carolina, even if injury appeared after the plaintiff left the state.
• Murphy v. Owens-Corning Fiberglas Corp. (2001). Under South Carolina's Door Closing Statute, a cause of action 'arises' where the act or omission giving rise to the claim originated (here, the asbestos exposure), even though it does not 'accrue' until diagnosis elsewhere. An order dismissing some but not all defendants under Rule 12 is directly appealable.

Tennessee

• Stockton v. Ford Motor Company (2017). In a Tennessee products liability case, whether pleaded as negligence or strict liability, the jury must find that the product was defective or unreasonably dangerous, and must decide foreseeability, before it can find negligence. A verdict that omits these findings is inconsistent and cannot stand.
• Satterfield v. Breeding Insulation Company (2008). A defendant owes a duty of reasonable care when its own conduct creates a foreseeable and unreasonable risk of harm, with no special relationship required. On the facts alleged, an employer therefore owed a duty to those who regularly and repeatedly came into close contact with its employees' asbestos-contaminated work clothes over an extended period, whether or not they were family members.
• Satterfield v. Breeding Insulation Company, Inc. (2007). An employer owes a duty of care, under Tennessee's foreseeability-based balancing test, to members of employees' households who routinely come into close contact with contaminated work clothing over an extended period. The duty does not extend to people whose contact is sporadic or unpredictable.

Texas

• Neely EX rel. Estate OF Goehring v. Union Carbide Corporation (14th District, 2021). Under Flores and Bostic, a plaintiff must offer reliable, defendant-specific evidence of dose, supported by epidemiology showing the exposure more than doubled the risk, to prove asbestos causation. An expert affidavit with unexplained calculations and studies not shown to match the plaintiff's exposure is unreliable and counts as no evidence.
• Ford Motor Company v. Miller (14th District, 2008). Under Michigan law, as answered by the Michigan Supreme Court, a property owner owed no duty to a household member of an independent contractor's employee for asbestos fibers carried home on clothing, and benign asymptomatic pleural plaques with only an increased future cancer risk is not a present compensable injury.
• Alcoa, Inc. v. Behringer (5th District, 2007). A negligence duty depends chiefly on foreseeability judged by what the defendant knew or should have known at the time. In the 1950s, the danger of non-occupational (take-home) asbestos exposure was neither known nor reasonably foreseeable to an employer that used asbestos, so no duty existed.
• Alcoa, Inc. v. Behringer (5th District, 2007). An employer owes no legal duty for take-home asbestos exposure unless the risk was foreseeable at the time; in the 1950s the danger of non-occupational exposure on workers' clothes was not known or reasonably foreseeable to Alcoa.
• Exxon Mobil Corporation v. Altimore (14th District, 2007). A defendant owes a duty only if the risk of injury to the plaintiff or those similarly situated was foreseeable. The court held take-home asbestos exposure of an employee's wife was not foreseeable to Exxon until the 1972 OSHA regulations, and case reports were not scientifically reliable proof of foreseeability.
• Exxon Mobil Corporation v. Altimore (14th District, 2006). Under Texas foreseeability principles, an employer owes no duty to an employee's spouse for take-home asbestos exposure before the risk was foreseeable; unreliable case reports did not make the risk foreseeable, and the risk became foreseeable to Exxon only in 1972, when OSHA regulations put it on notice.
• Fuller-Austin Insulation Co. v. Bilder (9th District, 1998). A bystander exposed to asbestos dust brought home on a worker's clothes may recover from a supplier that failed to warn of the dangers. A party that settled and was nonsuited before submission to the jury is not a 'defendant' who can make a binding settlement-credit election.

Utah

• Boynton v. Kennecott Utah Copper, LLC (2021). Premises operators who take affirmative acts that bring workers into contact with asbestos owe a duty of care to prevent take-home exposure to the workers' co-habitants. A party that contractually requires use of a material, specifies means and methods of work, or takes responsibility for dust control can retain control over its contractor.

Vermont

• Carpin v. Vermont Yankee Nuclear Power Corporation (2024). Under 12 V.S.A. § 518(a), the "last occurrence" to which a latent injury is attributed is the most recent proximate cause, here the last asbestos exposure, not the latent cellular changes preceding diagnosis; the twenty-year repose period is a permissible legislative policy choice under Article 7.

Virginia

• Quisenberry v. Huntington Ingalls Incorporated (2018). Under general negligence principles, an employer whose conduct allegedly let asbestos fibers be regularly carried from the workplace to an employee's home owes a duty of ordinary care to household members within that recognizable risk of harm. Whether the employer actually caused the harm is a question of proof, not duty.

Washington

• Perkins v. United States (2024). Under the FTCA and Washington law, a plaintiff must show by non-speculative evidence that the decedent was exposed to a substantial dose of asbestos resulting from negligent violation of a mandatory and specific directive, and that this exposure was a substantial factor in her disease. An expert opinion that every exposure above background counts toward a cumulative dose is unreliable.
• Perkins v. United States (2024). Motions in limine and pre-admission requests that depend on evidence as it comes in at a bench trial are premature and may be revisited at trial. A Rule 30(b)(6) deponent's testimony does not bind the organization like a judicial admission, but can be used for impeachment.
• Perkins v. United States (2024). The discretionary function exception does not apply where a mandatory and specific directive prescribes a course of action, and factual disputes over whether Navy asbestos directives were mandatory and followed preclude dismissal. Under Washington law, duty turns on foreseeability of a general field of danger, and disputed expert evidence on substantial-factor causation precludes summary judgment.
• Perkins v. United States (2024). Under Rule 702 the court acts as gatekeeper and tests the soundness of an expert's methodology, not the correctness of conclusions; the government's objections to assumptions and exposure assessment went to weight rather than admissibility.
• Perkins v. United States (2023). Under the FTCA's discretionary function exception, the government must show no mandatory directive governed the challenged conduct and that the decision was susceptible to policy analysis. Mandatory Navy directives on coveralls for asbestos ripout work removed that claim from the exception, while the laundry and warning decisions were discretionary and policy-based.
• Jack v. Dco, LLC (2021). Under Washington law, a take-home exposure claim fails without evidence of asbestos on the premises and without evidence that the risk to a worker's family was foreseeable at the relevant time. A post-sale failure-to-warn claim fails without specific evidence that an adequate warning would have led the plaintiff to avoid injury.
• Jack v. Borg-Warner Morse Tec, LLC (2018). A motion for reconsideration requires manifest error or new facts or authority that could not earlier have been presented, and it cannot be used to submit evidence or arguments that could have been raised before. Under Washington law, a plaintiff must first show actual exposure to asbestos resulting from the defendant's conduct to establish proximate causation.
• Jack v. Borg-Warner Morse Tec, LLC (2018). Under Washington law, an employer could not be charged with foreseeing take-home asbestos risks in and before 1955, when no studies or industry knowledge linked household exposure to disease. Washington's wrongful death statute also allows a spouse who married after the injury to recover loss of consortium damages arising from the death.
• Estate OF Brandes v. Brand Insulations, Inc. (1st Division, 2017). A contractor that installed asbestos insulation and created dust without labeling or controls owed a duty of care to the spouse of a nearby worker who was exposed through laundering his clothes. A denial of summary judgment on disputed material facts cannot be appealed after a trial on the merits.
• Hoyt v. Lockheed Shipbuilding Company (2013). The court predicted that the Washington Supreme Court would recognize an employer's duty to prevent take-home asbestos exposure of employees' family members if the harm was reasonably foreseeable. Knowledge that was merely knowable, rather than available to the defendant, did not make the risk foreseeable.
• Bouchard v. CBS Corporation (2012). Under New York contract law, the phrase "obligations and commitments" under contracts, leases and agreements covers contractual obligations only, not tort duties, so a purchaser under the agreement did not assume tort liability for asbestos exposure. Washington's general rule is that an asset purchaser is not liable for the seller's liabilities unless an exception applies.
• Kimball v. Asbestos Corporation Ltd. (1st Division, 2008). Under the Lockwood exposure test, a plaintiff can use circumstantial evidence placing the defendant's asbestos-covered products at the worksite while the worker was there, plus expert testimony on asbestos drift. Showing the defendant's asbestos was part of the 'cloud' of exposure meets the substantial factor causation test, including for secondary (take-home) exposure.
• Lunsford v. Saberhagen Holdings, Inc. (1st Division, 2007). Once Washington courts applied strict product liability under Restatement § 402A to the parties in earlier asbestos exposure cases, it applies retroactively to all later litigants whose exposure predates its adoption; selective prospective application and the Chevron Oil test are unavailable under Robinson.
• Rochon v. Saberhagen Holdings, Inc. (1st Division, 2007). A defendant who takes affirmative action creating an unreasonable risk of harm has a duty to prevent foreseeable injury from that risk, and foreseeability is part of the duty inquiry. Employer and landowner duties do not extend to an employee's spouse who never entered the premises.
• McPhee v. Ford Motor Company (1st Division, 2006). A party cannot create a genuine issue of fact with an affidavit that contradicts, without explanation, clear earlier deposition testimony, and a conclusory expert declaration without factual support cannot defeat summary judgment on medical causation.
• Lunsford v. Saberhagen Holdings, Inc. (1st Division, 2005). Strict liability under Restatement (Second) of Torts § 402A can extend to a household family member of a user of an asbestos-containing product if it was reasonably foreseeable that household members would be exposed that way; this is a jury question.

West Virginia

• Amick v. Ohio Power Company (2014). Discovery relevance is broad, but a party may be protected from burdensome inquiry when the anticipated benefit is outweighed by the burden; a topic calling for a legal conclusion about foreseeability is improper, though factual questions on the same subject are allowed.

Wisconsin

• Babler v. Soo Line Railroad Company (2022). The one-year limit on diversity removal in § 1446(c)(1) does not displace the 30-day deadline in § 1446(b)(3). A defendant must remove within 30 days of when it can first ascertain removability, and here a co-defendant's summary judgment motion showing no evidence against it started that clock.
• Kilty v. Weyerhaeuser Co. (2018). Plaintiffs claiming mesothelioma from non-occupational (household or community) exposure must offer evidence from which a jury could find that exposure was a substantial contributing factor. The mere scientific possibility that a small exposure contributes is not enough, and expert opinions resting on unsupported assumed exposures cannot defeat summary judgment.
• Boyer v. Weyerhaeuser Company (2016). A party seeking reconsideration under Rule 59(e) must show newly discovered evidence or a manifest error of law or fact. The rule cannot be used to relitigate old matters, raise arguments that could have been made earlier, or undo procedural failures.
• Boyer v. Weyerhaeuser Company (2016). Plaintiffs claiming non-occupational asbestos exposure need not show it was the main cause, but they need reliable expert evidence of significant non-occupational exposure to show it was a substantial factor. For mesothelioma, living within 1.25 miles of the plant for at least a year could support that opinion.
• Pecher v. Weyerhaeuser Company (2016). Evidence of what the defendant knew or should have known about asbestos hazards is relevant to the nuisance claim, while evidence of occupational exposure and workers' compensation is limited or kept out of the liability phase. General, unspecific requests to exclude expert testimony or untimely evidence are denied without prejudice to specific objections.
• Boyer v. Weyerhaeuser Company (2014). Wisconsin's Workers' Compensation Act is the exclusive remedy against an employer for asbestos injury arising from employment, including exposure carried home on clothing. A mere patent licensor owes no negligence duty and is not a seller for strict liability based only on licensing a technology.