Product Liability -- 2016

Haver v. BNSF Ry. Co.   (California Supreme Court)

Liability for take-home exposure to asbestos

Over the years plaintiffs have filed law suits in many states alleging that a manufacturer has a duty of care to the families of workers who may have been exposed to a hazardous substance like asbestos in the workplace. They allege that such a duty applies to off-site contact by immediate family members as well as visitors, guests, or others that the employee may come into contact with. Two such cases are now before the California Supreme Court to decide whether that state’s tort law recognizes such liability. Most states do not impose such a duty, which would impose potentially limitless and indefinite liability.

The NAM filed an amicus brief March 11, 2015 advising the court that there is no need to stretch tort law to provide a remedy to remote third parties. We outlined the history of asbestos litigation, the impact of bankruptcies on tort defendants, and the status of a variety of existing plaintiff compensation and asbestos trusts that collectively hold billions of dollars in assets to pay claims involving products that used asbestos.

In the current wave of lawsuits, the connection between plaintiffs and asbestos-containing products has become increasingly remote, first targeting peripheral defendants (companies that did not make asbestos or include in in their products), and now targeting secondarily exposed “peripheral plaintiffs.”

California is a particularly problematic jurisdiction because of its highly permissive standard for asbestos causation.

On 12/1/16, the California Supreme Court ruled that employers and premises owners have a duty to prevent exposure to asbestos that is carried by the bodies and clothing of on-site workers, and that that duty extends to household members of the worker, if it is "reasonably foreseeable" that the "workers, their clothing, or persona effects will act as vectors carrying asbestos from the premises to household members. . . ." This duty only extends to household members, not guests, and the plaintiffs will still need to show causation. This is a significant expansion of liability for manufacturers, and is a principle that many other state courts have refused to adopt.

Related Documents:
Shopfloor blog  (December 20, 2016)
NAM brief  (March 11, 2015)


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