Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs have pushed for a rule that would hold employers liable for so-called “take home” asbestos exposures, arguing that companies that used asbestos in the workplace owe a duty not only to protect their own employees from direct exposures, but also to protect anyone who later comes into contact with those employees.

This theory of liability has been rejected in almost two-thirds of the jurisdictions to consider the issue.  Fifteen states—including Arizona earlier this year—have decided defendants owe no duty of care to those claiming take-home exposure (Arizona, Georgia, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas).  In contrast, until recently, only eight states recognized some form of such a duty (Alabama, California, Delaware, Indiana, Louisiana, New Jersey, Tennessee, Washington).

Earlier this month, the Supreme Court of Virginia was confronted with the question of take-home liability in Quisenberry v. Huntington Ingalls Inc., No. 171494, 2018 WL 4925349 (Va. Oct. 11, 2018).Wanda Quisenberry’s father allegedly was exposed to asbestos while employed at a shipyard, and Wanda allegedly was exposed to asbestos when helping to wash her father’s work clothes.  Over four decades later, she was diagnosed with mesothelioma.  Her estate brought a wrongful death action in federal court against the owner of the shipyard.  Because the question of take-home liability was unsettled in Virginia, the federal district court certified the question to the Supreme Court of Virginia.

In a 4-3 decision, the Virginia Supreme Court made Virginia the ninth state to recognize take-home liability, holding the shipyard had a “duty of ordinary care” to “those sharing living quarters with [its] workers.”  This holding, however, came over the strong objection of three dissenting justices, who argued that the majority had created “an empty duty ‘owed to all the world’” that was “unprecedented in Virginia.”  In addition to settling the issue of take-home liability for the state of Virginia, this case, with its conflicting majority and dissenting opinions, provides a useful overview of the differing perspectives regarding this controversial legal theory.

Majority Opinion

The majority began with the principle that a duty of care occurs only when “a specific course of conduct gives rise to a specific duty extending to specific persons.”  But, citing Judge Cardozo’s seminal Palsgraf case, the court noted that “risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation.”  Quisenberry, 2018 WL 4925349 at *3 (quoting Palsgraf v. Long Island R.R., 248 N.Y. 339, 344 (1928)).  In other words, when a defendant’s conduct creates “a recognizable risk of harm” to the plaintiff, that risk of harm creates a relationship between plaintiff and defendant sufficient to establish a duty of care.

The majority reasoned that, when the shipyard released asbestos dust, there was a significant likelihood that the dust would accumulate on the clothes of workers and then re-release when the workers returned home and washed the clothes.  Accordingly, the conduct of the shipyard “created a ‘recognizable risk of harm’ to those sharing living quarters with the workers, resulting in a duty of ordinary care.”

It did not matter that there was no actual relationship or interaction between Quisenberry and the shipyard.  Instead, all that was required was that Quisenberry was “within reach” of the shipyard’s conduct.  For this proposition, the court analogized that “a company’s negligent discharge of toxic chemicals into a river would not result in an absence of duty to injured swimmers downstream merely because the harm to plaintiffs did not occur contemporaneously and geographically adjacent to defendant’s actions.”

The court acknowledged that the legislature could have extended protections to those with take-home exposure, but stated that “[l]egislative action is not necessary to establish a rule that already exists at common law,” as the court found to be the case here.

Dissenting Opinions

Chief Justice Lemons argued that the majority opinion made five significant errors.  First, it “eviscerate[d] the well-established tort concept of particularized duty.”  The role of the courts is to formulate specific, tangible duties that arise in specific circumstances.  Quisenberry, 2018 WL 4925349 at *8 (quoting Oliver Wendell Holmes, Jr., The Common Law 100-01 (Paulo J. S. Pereira & Diego M. Beltran eds., 2011)).  The majority holding failed this standard by neglecting to define the precautions that the shipyard should have taken to protect Quisenberry.  Instead, the majority opinion offered only nebulous guidance about a duty of care without defining what the shipyard should have done to protect individuals it did not employ.

Second, the majority opinion conflated “duty and proximate cause.”  The majority’s inquiry whether there was a “recognizable risk of harm” was truly asking whether the harm was foreseeable.  But that inquiry has, under Virginia law, been reserved exclusively for the determination of proximate cause.  The Supreme Court of Virginia recently stated that “[f]oreseeability [of harm], it has been many times repeated, is not to be equated with duty,” because equating the two concepts would extend liability to every conceivably foreseeable accident.  Holiday Motor Corp. v. Walters, 292 Va. 461, 478 (2016).

Third, the dissent argued that the decision undermined the Virginia’s Workers’ Compensation Act, which reflects a legislative compromise governing workplace-related injuries.  In exchange for compensation that was “modest, but relatively certain,” employers were to be “sheltered from common-law liability in tort.”  Permitting a negligence claim for such workplace-related injuries upsets the system’s agreed upon balance.

Fourth, because this duty to employees’ cohabitants is not found in the common law, it should not have been created without an act by the Virginia legislature.  Indeed, it was debatable whether such a duty was “sound public policy,” as the legislatures of both Kansas and Ohio had recently prohibited take-home liability.  But, regardless of the decision’s merits, the dissent argued that a “change of this magnitude should be accomplished by an act of the legislature, not by a judicial pronouncement.”

And, fifth, take-home liability “creates a duty to a potentially limitless class of plaintiffs.”  When the majority announced a general “ordinary duty of care” to those exposed to asbestos outside the defendant’s premises, it did not provide “any framework for limiting an employer’s duty.”  Accordingly, the dissent echoed the Supreme Court of Georgia’s warning that take-home liability expands “traditional tort concepts beyond manageable bounds and create[s] an almost infinite universe of potential plaintiffs.”  Quisenberry, 2018 WL 4925349 at *11 (quoting CSX Transp., Inc. v. Williams, 608 S.E.2d 208, 209 (Ga. 2005)).

Finally, in her own dissenting opinion, Justice McClanahan said that she agreed with the Chief Justice’s dissent, but wrote separately to note how the majority’s “newly created duty” was “wholly unsupported” by Virginia precedent.  Specifically, the case that the majority relied on for the premise that a duty arises where there is a “recognizable risk of harm”—RGR, LLC v. Settle, 288 Va. 260 (2014)—was rooted in the doctrine of landowner liability and did not address an employer’s duty of care.

Potential Consequences

Whatever its merits, this decision will impact Virginian citizens and companies.  Even before the introduction of take-home liability, asbestos litigation was widespread and expensive.  One RAND study noted that, in the first thirty years of asbestos suits, asbestos-related claims cost companies over $70 billion in damages and litigation costs.  The decision to open the Virginia courthouse doors to a new class of asbestos plaintiffs will only increase those costs, as defendants will face novel theories of litigation by an expanded group of claimants.

This increase in potential plaintiffs will be especially meaningful in Virginia.  As noted in a previous Washington Legal Foundation Legal Opinion Letter, the state’s history as a center for maritime activity has led to a large number of asbestos suits.  Further, the state has developed a reputation as a plaintiff-friendly jurisdiction, with one Virginia courthouse reported to have the nation’s highest win rate at trial for asbestos plaintiffs (85%).

By expanding the class of claimants, this decision could have the effect of limiting the actual recovery of deserving plaintiffs.  As the RAND study noted, many asbestos defendants have already gone bankrupt, leaving plaintiffs to sue a shrinking number of solvent defendants or compete for the limited assets found in former defendants’ bankruptcy trusts.  See also In re Asbestos Prods. Liab. Litig. (No. VI), MDL 875, 2002 WL 32151574, at *1 (E.D. Pa. Jan. 16, 2002) (noting new mass filings can be “tantamount to a race to the courthouse and ha[ve] the effect of depleting funds, some already stretched to the limit, which would otherwise be available for compensation to deserving plaintiffs”).  By increasing the number of potential plaintiffs, there likely will be more competitors for the finite pool of assets from which plaintiffs can recover.

This decision, however, need not be a lasting one.  As even the Quisenberry majority noted, “the legislature is of course free to intervene so as to calibrate in either direction the scope of the duty.”  The Virginia legislature could look to the examples of Kansas and Ohio and intervene to chart a different course regarding take-home liability.