Millions of workers have been exposed to asbestos—and at risk of developing mesothelioma—especially miners, factory workers, railroad and automotive workers, ship builders, construction workers, and U.S. military veterans. What many people don’t realize is that these workers may have unknowingly put their loved ones at risk through “take-home” asbestos exposure.
When it comes to filing a “take-home” asbestos claim, viability of that case often depends on what approach the court in the state where the claim is filed takes, says Charlie Stern, one of the Beasley Allen’s mesothelioma lawyers.
Take-home asbestos exposure, sometimes called secondary asbestos exposure, occurs when microscopic asbestos fibers collect on the clothing, skin, or hair of an individual working in an environment where asbestos is used. When that worker goes home to his or her family, they inadvertently “take home” the asbestos on their person. The worker’s spouse and children are then unknowingly exposed to asbestos when they come in contact with the worker or while laundering the worker’s asbestos-covered clothes.
Asbestos exposure can cause mesothelioma, a rare form of cancer that develops in the lining of internal organs such as the lungs or abdomen. It can take decades for asbestos-related diseases to develop. Once a mesothelioma diagnosis is made, prognosis is generally dire. Most people succumb to the illness within 12 to 24 months.
In most cases, a worker’s exposure to asbestos, and related take-home exposures, could have been prevented if the worker’s employers, or manufacturers of the asbestos products the worker was exposed to, had taken precautionary measures.
By the 1960s, it was known that asbestos could be carried home from its original source, and that family members could become exposed to the toxic mineral and develop mesothelioma. When the Occupational Safety and Health Administration (OSHA) was created in 1970, its very first regulations for employers whose employees who worked with asbestos to require them to shower and/or provide them a place to change out of their clothing before leaving work so that they did not bring asbestos home to their families. However, warnings about asbestos exposure and precautions to prevent it were not always used.
Seeking compensation for injuries caused by “take-home” asbestos exposure can be a tricky business. “Despite the knowledge of ‘take-home’ exposures can cause mesothelioma, not all states allow individuals who develop mesothelioma from ‘take-home’ exposures to pursue such a claim,” Stern says.
There are two general approaches that courts, depending on their jurisdiction, take when analyzing whether a duty exists, thus allowing for a claim if that duty was breached. One involves analyzing the relationship between the plaintiff and defendant to determine whether a duty exists. The other focuses on the foreseeability of a harm in making a duty determination.
States that utilize the foreseeability of a harm analysis have found that duty exists, Stern explains, and claims against the product, manufacturer, or employer responsible for the “take-home” exposures can go forward. States that utilize this analysis include Alabama, California, Delaware, Louisiana, New Jersey, Tennessee, Virginia, and Washington.
However, states that focus on the relationship between the parties’ analysis often find that no duty exists in the “take-home” exposure context, he says. States that utilize this analysis include Illinois, Iowa, Michigan, New York, Pennsylvania, and South Dakota.
But there are several states that remain undecided on the issue. As such, “take-home” asbestos exposure claims continue to be an evolving and rapidly changing area of tort law.