An asbestos suit filed by a man whose father was exposed to the chemical decades ago will be among the latest to test courts’ standards for assessing liability in asbestos cases.
High profile firms on both sides are set to tangle in Chicago over the matter of second-hand asbestos liability – a matter upon which state supreme courts have been divided and Illinois’ high courts have yet to weigh in.
Dennis Yanchick, a plaintiff represented by the Cooney & Conway firm of Chicago, filed a personal injury suit in Cook County last August, alleging that he suffered second-hand asbestos exposure through his father, Rudolph Yanchick, who worked for the Elgin, Joliet & Eastern Railway in the 1950s and 1960s.
The suit, Yanchick v. Rapid American Corp., et al., includes approximately 134 corporate defendants, including CBS (as a successor-in-interest to Westinghouse), General Electric, Borg-Warner, Georgia Pacific, Rockwell, Toyota, Nissan, Mazda, Honda, Ford, and Daimler Chrysler, to name some. The Transtar Company, as successor to the railway where the plaintiff’s father worked, is among the defendants.
The crux of Yanchick’s argument is that while his father worked for the Elgin, Joliet & Eastern Railway, the company failed to warn the plaintiff’s father of the hazardous nature of asbestos-related materials, failed to properly test asbestos-related products for toxins, and failed to provide a safe work environment for the plaintiff’s father.
As a result of the railway’s acts and omissions, the suit alleges, Dennis Yanchick “was then and there, through his father, injured and suffered pain, disability and/or disfigurement, lost earnings, medical bills, damages to his personal property, and other losses.” Yanchik seeks a minimum of $30,000 for the injuries he’s alleged to have sustained.
The case was originally filed in the Circuit Court of Cook County on Aug. 30, 2006, then removed to the federal court for the Northern District of Illinois by CBS/Westinghouse. Westinghouse was the only defendant that sought removal to federal court.
The matter was consequently remanded to Cook County on Jan. 4. The case has not been assigned to a specific courtroom in Cook County yet, and the various defendants are still filing answers to the complaint.
Whichever judge this case is ultimately assigned to will be faced with a claim that is part of a contentious new trend in asbestos litigation.
The question at issue: Does an employer have a legally recognized duty to protect a non-employee spouse or relative from asbestos exposure outside the workplace?
State courts have yet to reach unanimity on the issue, as the question pushes the boundaries of toxic tort liability to uncertain levels.
The New Jersey Supreme Court recently held in Olivo v. Owens-Illinois, Inc. that a company can be liable for an individual’s second-hand exposure to asbestos chemicals. The decision was narrowly written to fit within New Jersey’s liability laws, but the case has nevertheless been portrayed as providing persuasive authority for other courts faced with the issue.
In the Olivo case, decided in April 2006, plaintiff Anthony Olivo was exposed to asbestos at work and diagnosed with a non-malignant asbestos-related disease in 1989.
His wife, Eleanor, who lived with Olivo and washed his clothing after he’d return from work, was diagnosed with mesothelioma in 2000. She died in 2001. Olivo filed a wrongful-death action naming 32 defendants including Exxon Mobil. All parties settled except Exxon, which was ultimately held liable by the New Jersey court.
New Jersey’s decision in Olivo was at odds with that of its neighbor to the north, however.
In October 2005, New York’s highest court held in Holdampf v. A.C. & S, Inc., et al., that while an employer owes a legally recognized duty to provide safe work conditions for its employees, no such duty extends to an employee’s spouse or relatives.
That case, which was factually similar to the circumstances in Olivo, revolved around a worker who was exposed to asbestos at work with the Port Authority of New York and New Jersey.
The employee routinely brought his work clothes home for his wife, Elizabeth Holdampf, to launder. When Holdampf later exhibited symptoms of asbestos exposure, she sued the Port Authority under the theory that the company owed the same duty to her as it did her husband.
The New York Court of Appeals disagreed. The Court, cognizant of the “specter of limitless liability,” warned against expanding the scope of liability beyond what employers (and courts) should be expected to face.
The Court, in its opinion, stated: “Foreseeability, alone, does not define duty … a specific duty is required because otherwise, a defendant would be subjected to limitless liability to an indeterminate class of persons conceivably injured by its negligent acts. Moreover, any extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs.”
The Court seemed to envision the litigation nightmare that might ensue if anybody connected with a person exposed to asbestos could claim that they were foreseeable victims of a company’s negligence.
When Georgia’s Supreme Court was first faced with the “clothing liability” issue in CSX Transp. Inc. v. Williams, it balked at extending an employer’s duty that far.
In a suit filed by three plaintiffs claiming that, as children, they were exposed to asbestos at home through their father’s work clothes, the Court held that negligence law does not extend to such third persons.
The Court stated that, “the recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs…” adding further, “in fixing the bounds of duty, not only logic and science, but policy play an important role.”
The CSX case was decided in January 2005. Months later, Georgia courts reversed track on the issue, holding an employer liable for asbestos exposure allegedly sustained by an employee’s child.
In Zimko v. Am. Cyanamid, decided in June 2005, a Georgia appellate reviewed the theory of “household and bystander exposure.” There, plaintiff Kenneth Zimko’s father was a mill worker at a plant where he was allegedly exposed to asbestos during the 1950s and 1960s.
The younger Zimko never set foot in the factory, but asserted that he was exposed to asbestos fibers that clung to his father’s clothing when he came home. This fact pattern and theory of liability is the same as that which Dennis Yanchick is currently asserting in Illinois.
However, the Zimko case came with a twist – between 1977 and 1990, Kenneth Zimko himself worked at a plant where he was exposed to asbestos first-hand.
Zimko was diagnosed with malignant mesothelioma in 2000 and died a short time later.
Both companies – that where Zimko’s father worked and that where Zimko worked later – were sued. The appellate court found each company 50 percent liable for Zimko’s death. The Georgia Supreme Court, which held for the corporate defendants months earlier in CSX, nevertheless declined to hear the defendants’ appeals in March 2006.
Such is the uncertainty that currently envelops these cases.
Most recently, in Chaisson v. Avondale Indus., a Louisiana appellate court affirmed a trial verdict awarding more than $3 million in damages to a man whose wife died from mesothelioma after repeated exposure to the husband’s work clothes. The man’s daughters were named as plaintiffs in the suit as well.
The appellate court’s decision in Chaisson was rendered on Dec. 20, 2006.
The court cited the reasoning in Olivo and Zimko as support for its decision regarding the employer’s liability. In assessing the company’s scope of duty, the court found an “ease of association” between the asbestos-related materials that the husband dealt with at work and the mesothelioma that his wife later suffered.
However, the Chaisson court pointed out that a company’s duty to non-employees chiefly relates to exposure that occurred after 1972, when OSHA released its first warnings and regulations on asbestos exposure.
Chaisson applied a principle that a Texas court set forth in a decision rendered just two weeks prior – namely, that OSHA’s 1972 warnings effectively put employers on notice regarding the dangers of asbestos exposure. In Exxon Mobil Corp. v. Altimore – decided on Dec. 7, 2006 – a Texas appellate court held that employers first became aware – in the legal sense – of the take-home risk associated with asbestos in 1972 with OSHA’s prohibitions.
Exxon v. Altimore involved yet another scenario in which the wife of an employee contracted mesothelioma after years of laundering her husband’s work clothes. From 1942 until 1972, Ms. Altimore’s husband worked as a machinist at an Exxon refinery, and was exposed to asbestos during that time.
The plaintiff was diagnosed with mesothelioma in 2003, sued Exxon, and was awarded nearly $2 million in damages (half of which were punitive) by the trial jury. The appellate court overturned the award, however, on the basis that the relevant exposure period ended in 1972 – before Exxon was effectively put on notice of the dangers posed by asbestos fibers to non-employees.
Given that the two most recent decisions on second-hand asbestos exposure relied on the 1972 benchmark in determining foreseeability of the asbestos risk to third-parties, other courts might adopt a similar approach.
If Illinois courts apply the same formula, Dennis Yanchick’s case could be more tenuous, as it is predicated on exposure during the decades prior to OSHA’s 1972 regulations.
Further, Yanchick’s case differs from most others (save for Zimko) in that he was the son of an exposed employee and not a spouse. Thus, the typical claim – that laundering a husband’s asbestos-ridden clothes gave rise to the plaintiff’s cancer – does not apply here. Yanchick’s counsel will need to provide other evidence of direct exposure to asbestos fibers brought home from the workplace.
The firms on each side in Yanchick are girding themselves for a battle that could likely wind up in the Illinois Supreme Court. Given the trajectory of similar cases in New York, New Jersey, and Georgia, such a scenario is not far-fetched.
If Yanchick does reach Illinois’ high court, it may not even be the first. One recent Illinois case – O’Connell v. A.W. Chesterton Inc., et al. – was decided in favor of the defendants in March 2006, in the Circuit Court of Madison County, but could move up on appeal.
Yanchick’s lead attorney is Kathy Byrne, an experienced asbestos litigator who has secured several multi-million dollar verdicts and settlements in mesothelioma cases.
Byrne was part of the committee that set the criteria for the Cook County asbestos registry and prominently involved with the defeat of Illinois Legislative Tort Reform package on constitutionality grounds. Byrne received her J.D. from Loyola University (Chicago) in 1988 and resides in Chicago.
Byrne’s firm, Cooney & Conway, aggressively pursues asbestos cases and is known for obtaining some of the highest verdicts and settlements in the land. The firm’s web site actively solicits plaintiffs for asbestos litigation, and claims to handle nearly 90 percent of all mesothelioma cases in northern Illinois.
Cooney’s site acknowledges that “it can be challenging to nail down” the companies responsible for asbestos exposure but promises to “narrow the field” of defendants. In Yanchick’s case, the field has been “narrowed” down to well over 100 corporate defendants.
The defendants in this case are represented by a who’s-who of Chicago’s prominent corporate defense firms, including Schiff Hardin, Hinshaw-Culbertson, McGuire Woods, Johnson & Bell, and several others with experience working for defendants in asbestos litigation.
Segal McCambridge Singer & Mahoney, Ltd., which successfully represented the defendants in New York’s Holdampf case, is representing several defendants in the Yanchick litigation as well.
This case is far from the trial stage and it remains to be seen how many defendants will be dismissed by that point.
Those defendants remaining at trial will have to contend with Cook County’s labor-friendly jury pool and a relatively new offshoot of asbestos litigation that has produced mixed results to date.