Products Liability Law Reporter

Answering a certified question, the Virginia Supreme Court held that an employer owes a duty of care to the family members of employees who are exposed to asbestos at work and bring asbestos fibers home on work clothing.

Wanda Quisenberry, whose father was exposed to asbestos while working at a shipyard for decades, was diagnosed as having malignant pleural mesothelioma resulting from exposure to asbestos dust and fibers. After her death, her son sued Huntington Ingalls Inc., alleging it was liable for negligently failing to warn its workers not to wear their work clothes home or to take other precautions to safeguard family members from asbestos hazards. The defense removed the case to federal court and moved both to dismiss and to certify a question to the Virginia Supreme Court. The state high court considered whether an employer owes a duty of care to an employee’s family member who alleges that asbestos exposure originated from the employee’s work clothes and that the employer’s negligence had allowed asbestos fibers to be transported away from the workplace to the employee’s home.

Answering in the affirmative, the Virginia Supreme Court found that under common law, a general duty to exercise ordinary care is owed to those within reach of a defendant’s conduct. Citing case law, the court noted that for an actor to be negligent toward another, the conduct at issue must create a recognizable risk of harm to someone within a given area of danger, juxtaposing the parties in time and space even if they do not actually interact with each other.

Applying these principles, the court found that the harm alleged here started with the release of asbestos dust during the defendant’s course of conduct at the shipyard and moved to a place—Quisenberry’s home—that put her in danger. The fact that inhalation of asbestos fibers could lead to mesothelioma, the court said, placed Quisenberry and others similarly situated in the zone of danger and within the reach of the defendant’s conduct. If the defendant failed to use ordinary care and skill, the court said, it would have subjected Quisenberry to regular danger of injury from asbestos fibers. Finding that a duty extends to those placed in a recognizable and foreseeable area of risk, the court held that an employer does owe a duty to family members exposed to asbestos from contaminated work clothes.

Citation: Quisenberry v. Huntington Ingalls Inc., 2018 WL 4925349 (Va. Oct. 11, 2018).

Plaintiff counsel: Leslie Kendrick, Charlottesville, Va.; and AAJ members Peter Kraus, Jonathan George, and Charles S. Siegel, all of Dallas.

Amici Curiae Counsel: AAJ members William W.C. Harty, Robert R. Hatten, Hugh B. McCormick III, Erin E. Jewel, Jeanette Dodson-O’Connell, and Spencer Reiss, all of Newport News, Va.; AAJ member Richard S. Glasser, William H. Monroe Jr., Marc Greco, and Kip Harbison, all of Norfolk, Va.; AAJ members J. Gregory Webb and E. Kyle McNew, both of Charlottesville; and Kevin P. Bilms and Thomas F. Burris III, both of Baltimore.

Comment: In Rivera v. Huntington Ingalls, Inc., 2018 WL 6326451 (E.D. La. Dec. 3, 2018), Judith Rivera brought a wrongful death and survival suit against Huntington Ingalls, Inc., alleging that her mother contracted fatal mesothelioma after washing asbestos-laden work clothing for many years while her husband and son worked as pipefitters at a shipyard. The plaintiff brought her claims in 2017, approximately six years after her mother’s death. The defense moved for summary judgment. Granting the motion, the district court noted that the prescriptive period for wrongful death and survival claims is one year from the date of death. Here, the court found, the plaintiff’s mother died in 2011, but her lawsuit was not filed until 2017. The court found that the facts of the case clearly establish that the plaintiff’s claims were knowable more than a year before she filed suit and that there is no genuine issue of fact as to whether the defendant engaged in fraudulent concealment that would have prevented the plaintiff from timely filing her lawsuit.

In Schatz v. John Crane, Inc., 2018 WL 5730187 (Md. Ct. Spec. App. Nov. 2, 2018), Concetta Schatz died from malignant mesothelioma. Her estate and daughters sued John Crane, Inc., alleging that she became ill after being exposed to asbestos fibers on her mechanic husband’s work clothing while he worked at Baltimore Gas & Electric and was responsible for maintaining various equipment, including boilers that had doors sealed with rope containing chrysotile asbestos. At trial, the defendant moved for judgment on the basis that the plaintiffs had failed to prove the existence of a legal duty to warn. The trial court granted the motion. Affirming, the appellate court reasoned that the plaintiffs failed to show that it was feasible for the defendant to warn Schatz about the asbestos on her husband’s work clothing or that a warning would have been effective.

See also DeLisle v. Crane Co., 2018 WL 5075302 (Fla. Oct. 15, 2018), reh’g denied, 2018 WL 6433137 (Fla. Dec. 6, 2018). In that case, Richard DeLisle sued 16 defendants, alleging that each had exposed him to asbestos. At trial against Crane Co., Lorillard Tobacco Co., and Hollingsworth & Vose Co., the defense challenged each plaintiff expert’s opinions under the Daubert standard. The trial court admitted each expert’s testimony. The trial court denied the defendants’ motions for directed verdicts. The jury awarded $8 million. Following the verdict, the defendants moved unsuccessfully for a new trial and for j.n.o.v. The intermediate appellate court held that the trial court had failed to properly exercise its gatekeeping function. The court then reversed for a new trial for the tobacco company and remanded for a directed verdict in Crane’s favor. The Florida Supreme Court reversed the lower appellate court and remanded for reinstatement of the final judgment. The court affirmed the applicability of the Frye rule in cases brought in the state’s courts, noting that the standard holds that expert testimony should be deduced from generally accepted and reliable scientific principles. Thus, the court concluded that the lower appellate court had erred in overturning the trial court’s determination that evaluating expert credibility and choosing between conflicting scientific views presented in the case was a role for the jury. The plaintiff was represented by AAJ member James L. Ferraro, AAJ member David A. Jagolinzer, and Paulo R. Lima, all of Miami. Amici curiae counsel were AAJ members Bryan S. Gowdy and Howard Coker, both of Jacksonville, Fla.