Heather Isringhausen Gvillo Aug. 18, 2014, 1:27pm

OKLAHOMA CITY (Legal Newsline) – An Oklahoma federal judge has granted summary judgment for three defendants in a take-home asbestos exposure case, concluding two box manufacturing companies and a boiler manufacturer did not owe a duty of care to a former plant supervisor’s wife.

In a series of three orders, Judge Timothy D. DeGiusti delivered the opinions on July 30 and Aug. 1 in the United States District Court for the Western District of Oklahoma in favor of defendants International Paper Company, Cleaver-Brooks, MeadWestvaco Corporation and MW Custom Papers, LLC – Mead Corporation was its predecessor.

Plaintiffs Norma and Eugene Bootenhoff claimed Eugene brought asbestos fibers home on his clothing, exposing his wife when she laundered his work clothes. She was diagnosed with mesothelioma in August 2009 and later died from the disease.

The claimants sought to impose liability on IPC through its predecessor companies, Weyerhaueser and Hoernher Waldorf. They alleged Eugene’s asbestos exposure occurred while he worked with these companies.

He worked at Weyerhaueser in Minnesota from 1955 through 1966, working as a printing press operator until 1958 and in quality control through 1959.

While working in quality control, Eugene removed and installed asbestos containing pipe insulation on a corrugating machine at the warehouse on two occasions. The opinion notes that each project lasted an hour or two.

He then worked as a supervisor from 1960 until 1966.

Eugene took a break from IPC and worked for defendant Mead Container in Arkansas, owned by the Mead Corporation, from 1966 until 1972.

While there, he did not perform any hands-on work with any of the machinery. However, he claimed he was sometimes present when the boiler was opened up for work and when pumps were being serviced by other employees. He alleged these pieces of machinery contained asbestos, exposing him to the fibers.

The Bootenhoffs then moved to Colorado, where Eugene worked as a supervisor at Hoernher/Waldorf from 1972 until 1976.

He switched to plant manager of the Hoernher Waldorf/Champion International box plant in Oklahoma City from 1976 until 1998.

In addition to his former employers, Bootenhoff named Cleaver Brooks as a defendant for manufacturing boilers that were allegedly present at his work site, which allegedly contained asbestos.

The defendants argued that if any asbestos exposure was present at the facilities, it would be in pipe insulation on machines used to manufacture boxes.

IPC claimed Oklahoma is the appropriate choice of law to govern the case, but the plaintiffs claimed either Minnesota or Colorado law is appropriate.

The court found that Oklahoma is proper.

The case meets Oklahoma’s place of injury standard, which is where a latent asbestos related disease is first detected, and not where the exposure occurred, DeGiusti held.

“Based on Oklahoma law addressing the related concept of accrual of a cause of action, and persuasive authority from other jurisdictions addressing choice of law,” DeGiusti wrote, “the court finds the place of injury is the place of diagnosis.”

The case also meets the place of contact standard, because the factor does not favor one state over another when the alleged conduct is spread over more than one state.

DeGiusti held that because the plaintiffs failed to identify any specific facts that might demonstrate more significant conduct in one state over another, Oklahoma is proper.

Furthermore, the plaintiffs lived in Oklahoma since 1976 and resided there at the time of diagnosis. Also, IPC had a predecessor company there.

DeGiusti also wrote that Norma had no relationship with Weyerhaueser or Hoernher Waldorf, and IPC’s only relationship with the plaintiff is through its predecessor company in Oklahoma.

“This conclusion is further supported by Restatement of Conflict of Law 146, which provides that in personal injury actions, the law of the place of injury determines the rights and liabilities of the parties unless some other state has a more significant relationship to the occurrence and the parties,” DeGiusti wrote.

Because Oklahoma law was found to be proper, the court must apply the state’s previous determinations on the issue of legal duty in regards to take-home asbestos exposure.

“IPC contends therefore, that the policy considerations of ‘certainty, predictability and uniformity of result... and ease in determining the applicable law’ bolster application of Oklahoma law,” DeGiusti wrote.

He explained that the plaintiffs attempted to “cast a broad net” when determining if it was foreseeable that a worker’s asbestos exposure was harmful to household members.

However, the court ruled that the issue is “more narrowly drawn and requires a determination of the duty of care in a take-home asbestos case where foreseeability is premised upon the worker’s ‘intermittent, non-occupational exposure to asbestos.’”

DeGiusti concluded that the plaintiffs’ reliance upon Dr. Barry Castleman’s affidavit and additional reports is inadequate as a matter of law to establish that IPC should have known of the dangers of take-home asbestos exposure.

“The fact of these first reports – in the medical field – which began to link the possibility of asbestos-related diseases to household members of workers does not demonstrate the risk of that disease should have been known in the industry by manufacturing companies like IPC,” he wrote.

DeGiusti also held that the plaintiffs' reliance on 1972 OSHA regulations is insufficient, explaining that the OSHA standards were designed to protect workers from excessive occupational exposure in the workplace and did not extend to household members.

“In cases where a duty has been found to exist due to foreseeability of the risk of harm from take-home exposure, the employee’s exposure has been direct, the employer has manufactured asbestos or the employee has worked with asbestos products daily, and some evidence of the employer’s actual knowledge of the risk of harm has been shown,” he wrote.

In addition to the issue of foreseeability, the plaintiffs attempted to address other policy considerations, including the degree of certainty of harm, moral blame and extend of the burden to the defendant, among other things.

“Here, because the risk of harm to Norma Bootenhoff was not foreseeable, the harm to her as a result of IPC’s conduct was not certain,” DeGiusti held. “The record is void of evidence of moral blame associated with IPC’s conduct.”

As for the remaining defendants, DeGiusti held that the evidence is virtually identical to that which the plaintiff relied upon for IPC.

“For substantially the same reasons set forth in the IPC order, this evidence is insufficient as a matter of law to establish the risk of harm was foreseeable.”

As a result, he concluded that summary judgment was appropriate for all defendants, because IPC owed no duty of care to the decedent.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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