Asbestos: Expansion of Liability and Potential Ban
Product Liability Update
Date: December 20, 2016
A recent California Supreme Court opinion recognizing a company’s legal duty to protect its employees’ families from “take home” asbestos exposure has expanded the pool of potential plaintiffs in asbestos litigation. Also, the U.S. Environmental Protection Agency (EPA) has included asbestos on its new list of 10 chemicals that could eventually be banned. These two recent developments portend a potential increase in challenges for companies that have been involved, even tangentially, with asbestos.
Liability Grows Via “Take Home Exposure” Cases
On December 1, 2016, the California Supreme Court ruled that employers could be held liable where members of their employees’ households become ill due to exposure to asbestos brought home from the workplace on the employees’ clothes or bodies.
The premise of these types of cases, known as “take home exposure” cases, is that an employee who works with or around asbestos can transport asbestos fibers home on his or her clothing, hair and skin, which then can be inhaled by people living in the home, eventually leading to them developing asbestos-related diseases. Regardless of whether the theory is scientifically plausible, a number of courts have rejected these causes of action, holding that injuries to employees’ household members are not foreseeable, or that there is no legal duty between a company and members of its employees’ households.
With this decision, the California Supreme Court joins a minority (but growing) number of courts that have widened an employer’s duty of care to include members of employees’ households. By extending an employer’s potential liability to individuals who never worked for the company, this decision creates an expanded class of potential asbestos plaintiffs. Now anyone who shared a household with a California resident who worked with or around asbestos could be permitted to sue the owner of the workplace where asbestos was present.
EPA May Consider Ban
On November 29, 2016, the EPA issued a list of 10 chemicals, including asbestos, it will subject to risk evaluation under the Toxic Substances Control Act to determine whether they present an unreasonable risk of injury to health or the environment. Although EPA is expected to issue initial scoping documents that describe hazards of asbestos, exposure potential, common asbestos use and susceptibility to exposure, the full assessment likely will take years to complete. If EPA determines that asbestos poses an unreasonable risk of injury to health or the environment, it will take steps to mitigate that risk, which could include a ban.
FOR MORE INFORMATION
For more information, please contact:
Robert W. Burger
Eric S. Daniel
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