Employers in California have a duty to both their workers and their household workers to take ordinary care to ensure that asbestos dust does not contaminate their household, according to a 7-0 California Supreme Court decision on Dec. 1.
The high court issued the decision in two separate cases – Haver and Kesner – where it granted a review to determine whether and to what degree the duty could be owed for the company to avoid take-home asbestos exposure claims.
The California Supreme Court ruled that both employers and premise owners have a duty to prevent the taking home of asbestos on clothing and other materials that could lead household members to contract deadly asbestos-related diseases, such as mesothelioma. However, the court also ruled that this extra duty of ordinary care applies only to members of the household of the worker, and does not further extend to any other parties.
What Is Peritoneal Mesothelioma?
The most common type of mesothelioma affects the lining of the tissues around the lungs. However, mesothelioma can affect different organs as well. One of the mesothelioma lawsuits upon which this CA court decision is based involved peritoneal mesothelioma. This also is known as abdominal mesothelioma because it affects the lining of the abdomen, the stomach and other organs in the abdomen. This type of mesothelioma is much rarer than pleural mesothelioma, which is the one that affects the lungs and is about 90% of cases.
However, peritoneal mesothelioma is more common than the very rare pericardial mesothelioma, which affects the lining around the heart.
There are approximately 100-500 cases of peritoneal mesothelioma every year in the US, which makes it very rare. However, almost all of the patients who are diagnosed have a history of substantial asbestos exposure.
If you have peritoneal mesothelioma, you will notice some or all of these symptoms:
- Abdominal swelling in 70% of cases
- Mass forms in the abdomen in 40% of cases
- Pain the abdomen in 63% of cases
- Weight loss in 44% of cases
- Digestive problems in 33% of cases
Another common symptom is what is called ascites, which is where fluid seeps from the tumors themselves and gets into the chest and abdomen. This will happen in about 66% of cases.
Unfortunately, many symptoms are not noticed until the disease has advanced a great deal. Also, some of the symptoms could be attributed to much less serious conditions. And of course, most cases of mesothelioma have a very long latency period. It could be many years from asbestos exposure until you get the deadly disease. This makes diagnosis more challenging.
If you notice any of the above symptoms for an extended period and you think you were exposed to asbestos, you should talk to your doctor right away. The sooner you are diagnosed with pleural or peritoneal mesothelioma and get treatment, the better your prognosis.
It further noted that it intentionally drew a line at the members of the household, so that there is a limit of potential plaintiffs who could bring an asbestos exposure claim.
Although asbestos has been phased out for many years for most uses, there are many lawsuits being filed in the 21st century alleging that companies’ use of asbestos containing products contributed to workers’ getting deadly asbestos related diseases.
The California ruling in December 2016 stemmed from two separate lawsuits. One was brought by John Kesner, who was diagnosed with peritoneal mesothelioma in 2011 and died from the deadly cancer in 2014. He filed the lawsuit against Pneumo Abex, which owned a brake manufacturing company in Virginia who employed his uncle.
Kesner testified that he spent three or more nights per week at his uncle’s house in the 1970s. He also noted that his uncle sometimes slept near him or roughhoused with him while he was wearing clothes covered in asbestos dust.
The other asbestos lawsuit was filed by the children of Lynne Haver. She was diagnosed with mesothelioma on 2008 and died the next year. The suit alleged that the mother was exposed to asbestos dust on her husband’s clothing when he came home from work. Haver’s husband worked for Atchison, Topeka and Santa Fe Railway, which was the predecessor of BNSF Railway. This work was in the early 1970s; her husband was exposed to asbestos fibers when he was working on pipe insulation and related products.
Kesner’s attorney argued that companies were well aware by the 1970s that asbestos could kill people, but they did not offer locker rooms or showers for workers who were exposed. He noted that the CA Supreme Court decision means that the families of workers who were themselves exposed to deadly asbestos dust will now be able to seek compensation in California
The ruling is of great significance, legal experts say, because it has ended a legal bar on lawsuits from those who were exposed to asbestos outside of the job.
