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The Takeaway

Strategies defense attorneys might use to mitigate high-stakes, high-value secondary/take-home asbestos exposure claims include identifying:

• additional asbestos-containing products plaintiff may have been around
• the presence of naturally occurring asbestos near the plaintiff’s premises
• the presence of man-made asbestos deposits or fills near the plaintiff’s premises
• relevant co-morbidities within the plaintiff’s medical records
• potential genetic causation of the mesothelioma
• potential exposures to amphibole products

Introduction

Secondary exposure—also referred to as take-home exposure—is a theory of liability frequently used by plaintiffs in asbestos litigation. And it’s a theory that’s not going away anytime soon.

The typical secondary exposure follows this pattern:

• After living for many years in the same household as a pipefitter, laborer, or other worker whose employment caused them to be around various asbestos-containing products for a period of time in the 20^th century, the plaintiff/cohabitant develops mesothelioma.
• The plaintiff then files a legal complaint alleging his or her mesothelioma was caused by asbestos dust the worker brought home on his or her clothing or body.
• The plaintiff must then corroborate these secondary exposure claims during discovery, typically either by:
  • deposing the worker who allegedly returned home with asbestos dust on his/her clothing or body (if the person is still alive), or
  • deposing a co-worker or worksite witness who can corroborate the secondary exposure claims made in the legal complaint (if the worker is deceased or unavailable)

If a plaintiff/cohabitant is able to tie brands and manufacturers to asbestos dust allegedly getting into the home, defense counsel may be faced with issues often not present in non-take-home cases. As the generation(s) that worked around asbestos-containing products becomes older, a higher proportion of asbestos plaintiffs will inevitably become the younger individuals who were allegedly secondarily exposed to asbestos. Thus, absent developments in case law, these secondary exposure cases are going to be around for quite a while.

Why Take-Home Claims Matter

Secondary exposure cases can be highly problematic for defense attorneys. Major considerations include the facts that:

1. These cases don’t fit succinctly within established asbestos case law. (The theory of secondary exposures is a nuance within the scientific literature surrounding asbestos.)
2. The injured party in secondary exposure cases is often younger than the usual plaintiff in asbestos personal injury cases. (This will likely create higher settlement demands and/or high-stakes jury trials.)
3. Other inflammatory factors and issues (such as such as plaintiff-friendly venues, a uniquely high sympathy factor to potential jurors, and generous wage-loss theories) may lead to atypically high settlement demands, leaving defense attorneys with limited options to bolster their leverage.

Modern Defense Trends

Secondary exposure cases don't fit squarely within the confines of asbestos literature and asbestos case law. However, many high-volume jurisdictions fail to appreciate this, which can be problematic for defense attorneys.

For example, consider someone who worked as a laborer at a steel mill. Theoretically, any person who was often physically near that laborer immediately following the laborer’s shift at a steel mill could sustain a secondary exposure lawsuit against manufacturers of dozens of products the laborer may have encountered. Assuming this steel mill work was performed after 1964, many jurisdictions (such as Illinois) have been willing to extend a legal duty to these manufacturers.[1] This duty could then become endless, extending the existence of this entire class of asbestos claims into the foreseeable future.

Furthermore, these secondary exposure claims are typically supported by an expert report that applies the same science to take-home exposures as is typically applied to standard occupational exposures to asbestos. The existence of idiopathic mesothelioma is rarely acknowledged. Likewise, most jurisdictions have not set duty limits for secondary exposure cases. Thus, a defense attorney’s only option may be to try to negotiate settlements for these secondary exposure claims while simultaneously facing the realistic scenario that if their high settlement demands are not met, these highly sympathetic plaintiffs will take their case to a jury.

Notwithstanding the arguably shaky legal and scientific grounds on which many secondary exposure cases rest,[2] there is a specific subset of these cases that pose an especially serious risk of unproductive settlement negotiations and a potential jury trial. Specifically, these cases involve a younger plaintiff who has developed mesothelioma in their late 20s or early 30s. These plaintiffs are often the sons or daughters of laborers who encountered many products associated with asbestos.

These cases can be problematic for even experienced asbestos defense attorneys. First, the plaintiffs in these cases will likely have very high wage loss claims. In typical asbestos cases, the plaintiff is an older, retired individual who worked with potential asbestos-containing products during the mid-20^th century. That’s not always the case in a secondary exposure case. For example, a 30-year-old earning six figures at the time of a mesothelioma diagnosis could receive a jury verdict of tens of millions of dollars more than plaintiffs in typical occupational exposure asbestos cases. Additionally, non-economic damages and loss of consortium claims may have markedly higher values for secondary exposure plaintiffs, exposing defendants to even higher damage claims. Even worse, if only a few product brands are implicated throughout discovery, defense counsel may receive a settlement demand that’s millions of dollars more than what they’re used to.

With these young secondary exposure plaintiffs, proving and disproving allegations becomes even more important—and more difficult. While plaintiffs in these instances have the advantage of proving their claims through the testimony of a friend or family member that allegedly secondarily exposed the plaintiff to asbestos, defendants must somehow find another witness from the same job site who could undercut this testimony. Finding someone who worked at a paper mill in Mississippi 45+ years ago, for example, may very well be impossible.

Experienced asbestos defense attorneys are continually strategizing ways to counter plaintiff’s secondary exposure claims. These strategies may include identifying additional asbestos-containing products plaintiff may have been around;[3] identifying the presence of naturally occurring asbestos near the plaintiff’s premises, identifying the presence of man-made asbestos deposits or fills near the plaintiff’s premises, identifying relevant co-morbidities within the plaintiff’s medical records, identifying potential genetic causation, and identifying potential exposures to amphibole products.

Conclusion

Asbestos personal injury cases have long been a part of American jurisprudence. Over time, different classes of asbestos cases have appeared. One of these classes of asbestos cases has become particularly problematic for defense attorneys: the secondary exposure case involving a younger plaintiff who has a witness who can corroborate their exposure claims. Despite the fact these cases stand on questionable legal and scientific grounds, they nonetheless can lead to high settlement demands, which may then lead to high-stakes jury trials. What’s more, these cases are going to represent a higher proportion of asbestos dockets as time goes by. Accordingly, defense attorneys should consider and employ strategies described in this article to mitigate the value of these claims and continue to posit creative ideas for undercutting these high-value secondary exposure claims until case law in high-volume jurisdictions draws reasonable limits on secondary exposure claims.

[1] See, e.g., Rodarmel v. Pneumo Abex, L.L.C., 2011 IL App (4th) 100463, ¶ 90, 957 N.E.2d 107, 126.

[2] William L. Anderson, The Unwarranted Basis for Today’s Asbestos “Take-Home” Cases, 39 Am. J. Trial Ad. 107 (2015).

[3] Attorneys take varying approaches to this. A current trend involves implicating talcum powders to increase shared liability in a high-value asbestos case. As more relevant entities go bankrupt, this strategy will become more difficult.