Applying The Brakes To “Take-Home” Asbestos Claims

The typical “take-home” plaintiff is a bystander such as the child who claims she was exposed to asbestos while playing in the basement where her father’s work clothes covered with asbestos dust were laundered. Across the United States, the battle lines are being drawn in these “take-home” or “household” asbestos cases.  In a prior article, we examined how various courts around the country analyzed the issues of "duty" and "forseeability" presented by these cases. 

On July 8, 2013, the Maryland Court of Appeals, in a case titled Georgia-Pacific LLC v. Farrar, reversed a lower court judgment in a case involving “take-home” for “household” asbestos exposure. The court rejected the trial court’s use of a broad foreseeability standard to identify the scope of a product manufacturer’s duty. Rather, the appeals court adopted a standard that examined foreseeability based on scientific knowledge about the potential harm to non-users at the time the product was used. At the same time, the court also offered a healthy dose of skepticism whether it was even feasible to warn non-users of product dangers.

The Maryland high court relied, in part, upon a 2005 New York State Court of Appeals holding in Matter of NYC Asbestos Litigation.  In that case, the plaintiff John Holdampf was employed by the Port Authority from 1960-1996 in various blue collar positions, during which time Holdampf was exposed to asbestos. Although the Port Authority offered laundry service, much of the time he opted to bring his dirty work clothes home for cleaning for reasons of convenience and because there were no showers available at work.

Elizabeth Holdampf, who washed her husband’s soiled uniforms, was diagnosed with mesothelioma in August 2001. In ruling on behalf of the Port Authority, the Court of Appeals rejected her argument that the Port Authority’s status as an employer placed it in a position to control or prevent John Holdampf from going home with asbestos-contaminated work clothes or to provide warnings to him and other employees and through them, to household members such as her.

The New York high court was also skeptical of plaintiff’s assurances that a ruling in favor of Elizabeth Holdampf would not result in “limitless liability” finding that drawing a line, once a precedent was established, would not be so easy to draw.  The Court of Appeals’ cautionary  language concerning the risk of  potentially "limitless liability" is instructive. 

In sum, plaintiffs are, in effect, asking us to upset our long-settled common-law notions of an employer’s and landowner’s duties. Plaintiffs assure us that this will not lead to ‘limitless liability’ because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises.

This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short … the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. Here, there is no relationship between the Port Authority and [plaintiff].

Finally, we must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality

Despite the cautionary alarm sounded by the New York Court of Appeals concerning the danger of "limitless liability", New York trial courts continue to distinguish cases on their facts to permit recovery for "take-home" claimants. 

On May 13, 2013, Justice Sherry Klein Heitler, the presiding judge for the New York City Asbestos Litigation, denied a motion for summary judgment brought by the Long Island Railroad (“LIRR”) in Frieder v. Long Island Railroad,  a case in which the injured party, Morton Frieder, was diagnosed with mesothelioma despite having never worked hands-on with asbestos-containing materials. Frieder spent seven years working in a diner (appropriately named, as any LIRR commuter would agree, the "’Dashing Dan Diner) located within the gated premises of the LIRR’s Morris Park train repair yard, where asbestos-containing materials were used “routinely” by the LIRR. 

Judge Heitler determined that while Mr. Frieder never worked hands-on with asbestos, he testified that a “couple hundred” LIRR workers would dine at the diner during breakfast, coffee breaks and lunch daily. These LIRR workers never changed out of their work clothes before eating at the diner. When they came into the diner “they would bang off their boots, take their gloves off and throw them on the counter. If they had a coat or jacket on, they would just shake it off” causing “dust all over the place” that required Mr. Frieder and other diner workers to perform “really heavy sweeping and cleanup of the diner.”

Judge Heitler ruled that the Court of Appeals holding in Holdampf could not be relied upon by the LIRR because the facts presented in Frieder were different, to wit, LIRR had control of the workplace where the dinner was located (inside the walls of the rail yard).   Under this unique set of facts, she reasoned, her ruling would neither run afoul of Holdampf nor open the floodgates of "limitless liability".  Based upon her discussion of the "take-home" case law, Judge Heitler appears prepared to apply the brakes to "take-home" asbestos claims in New York City. 

Student Bitten By Tick: Hotchkiss School On Hook For $41.75 Million

On March 27, 2013, a jury in federal district court in Bridgeport, Connecticut awarded Cara Munn, a 20-year-old  woman who formerly attended the Hotchkiss School  in Lakeville, Connecticut, $41,750,000 in a case styled Orson D. Munn III et al. v. The Hotchkiss School, No. 3:09cv0919 (SRU).  The case raises important issues concerning "duty" and "assumption of risk".

The jury determined that Hotchkiss, a prestigious prep school, was negligent for two reasons: (1) in failing to warn plaintiff before or during a school sponsored trip to China during the summer of 2007 about the risk of insect-borne illness on the trip; and (2) in failing to ensure that plaintiff used protective measures to prevent infection by an insect-borne disease while visiting Mt. Pan in China.

In an article appearing in the Connecticut Law Tribune (Vol. 39, No. 13), titled "Tick Bite Leads To Big Verdict",  it was reported that the school was faulted specifically  for not warning plaintiff (and her parents) that she would be traveling in mountainous and forested terrain. As a result, the jury determined that the plaintiff was not aware that she had to protect herself from insects by wearing bug repellent, long sleeve shirts and trousers, and by avoiding brushy undergrowth.

According to Plaintiffs’ Amended Complaint, Ms. Munn’s parents had Cara flown back to the United States in July ’07, where she was hospitalized for several weeks at Weill Cornell Medical Center in the pediatric ICU and later at the Rusk Institute for extensive rehab.  As a result of her severe encephalitis, plaintiff suffered severe neurological and motor injuries, including permanent loss of speech. 

The case, which will almost certainly be appealed, raises significant issues concerning duty and the assumption of personal responsibility by parents who agree to have their child travel abroad for educational purposes. Apart from the obvious differences in food, culture and living conditions, traveling abroad carries many potential risks, some of which are foreseeable and some of which are not. Stepping back from the facts presented by this particularly tragic case, should a high school be held responsible for failing to prevent a student from being bitten by a tick in China? What if the tick had bitten her during a field trip to Central Park?

Assuming that the Second Circuit upholds this verdict, what does this case portend for high schools and colleges that plan educational trips abroad? Is there some bright line test that would provide guidance to a school evaluating the safety concerns of its students? Short of wrapping all of their students in cocoons and keeping them closely monitored in classroom settings, how can any school protect against the kind of unforeseen liability presented by this case?  

Hotchkiss’ Answer to Plaintiffs’ Amended Complaint states that plaintiffs’ claims should be barred by the doctrine of assumption of risk.  The school argues that plaintiffs voluntarily assumed the risk of travel to China as evidenced by their execution of the pre-trip Agreement, Waiver, and Release of Liability.  In this agreement, plaintiffs agreed that Hotchkiss "would not be responsible for any injury to person or property caused by anything other than its sole negligence or willful misconduct" (emphasis added)   Would legal weight did the court give to this release? 

Based upon the Verdict Form presented to the jury, it would appear that the trial court gave short shrift to the language in the release.  The jury was asked the following questions: (1) Was one or more of Hotchkiss’ negligent acts or omissions a cause-in-fact of Cara Munn’s injuries; and (2) Was one or more of Hotchkiss’ negligent acts or omissions a substantial factor, that acting alone or in conjunction with other factors, brought about Cara’s injuries? 

Those inquiries are a lot different from asking whether the jury finds that Hotchkiss’ "sole negligence or willful misconduct" caused the injuries.  Although the jury determined that plaintiff did not contribute to any degree whatsoever in causing her injuries, it was not asked to consider whether other intervening factors played any role in causing Cara’s injuries.

There are circumstances when a school can and should be held responsible when things go wrong on a school outing.  Three examples come quickly to mind: (1) sending kids into a war zone despite State Department warnings; (2) sending kids abroad into an epidemic earlier identified by the CDC; or (3) taking non-swimmers for an ocean swim outing without proper supervision. 

How is Munn different from these scenarios?  Is a  random bug bite as foreseeable, if at all, as the kinds of risks discussed in the three scenarios above. According to Hotchkiss’ summary judgment memorandum, the CDC reported that plaintiff was the first U.S. traveler ever to have reported TBE after traveling in China. Moreover, no U.S. traveler since plaintiff has developed the disease.  Therefore, how unreasonable was it for Hotchkiss not to take precautions against a risk of harm that arguably had such a slight likelihood of taking place?  Shouldn’t plaintiffs have had to prove that the defendant was on prior notice of the existence of circumstances that could give rise to an injury? 

Plaintiffs’ expert, Peter Tarlow once led a group of children, including his own son, on a  tour of Israel.  If a child on that Israel tour had been unexpectedly assaulted by someone holding anti-Zionist views, would Dr. Tarlow expect to be held responsible for any resultant injury because he was "on notice" of decades of endemic unrest in the region? 

Two strong CT trial lawyers squared off against each for this eight day trial–for the plaintiffs, Antonio Ponvert of Koskoff, Koskoff & Bieder, one of the New England plaintiff bar’s preeminent  firms, and for the defendant, Penny Q. Seaman of Wiggin & Dana, one of Connecticut’s oldest and most accomplished firms.  The bar should expect to see excellent post-trial briefing as events unfold.