The NAM joined with five other organizations in an amicus brief on 2/21/08 urging the Sixth Circuit to affirm a lower court ruling that landowners in Kentucky have no new duty to protect against off-site injuries that could result from secondhand exposures to asbestos and other substances emitted in the workplace. Whether one person owes a legal duty, as opposed to a moral or ethical obligation, is a policy judgment that must balance providing a remedy with potentially limitless tort liability.
In this case, the plaintiff’s father worked at Cincinnati Gas & Electric (CG&E) and, between 1951 and 1963, allegedly exposed his son to asbestos fibers which were carried home on his clothing and hair. The son died in early 2002 from malignant mesothelioma, allegedly as a result of that earlier exposure. The plaintiff seeks to hold CG&E liable for this secondhand exposure to asbestos.
Our amicus brief argued that the mere foreseeability of harm to third parties is not enough to extend the employer's duty of providing employees with a reasonably safe work environment to potential harm outside the workplace. In addition, imposing a new duty on landowners will bring about countless new lawsuits involving many substances and third parties.
On 1/27/09, the 6th Circuit found that under Kentucky law there is no legal duty to protect against secondary asbestos exposure until harm is foreseeable, and secondary exposure was not foreseeable until the first studies showing potential harm were published in 1965. This is another in a series of cases in various states deciding when such a duty exists.