Heather Isringhausen Gvillo Sep. 4, 2014, 10:32am

PHILADELPHIA (Legal Newsline) – Judge Eduardo C. Robreno, who oversees an asbestos multidistrict litigation in Philadelphia federal court, has ruled that Pennsylvania law does not support imposing a duty to warn of take-home exposure in asbestos litigation.

In his Aug. 27 opinion delivered in U.S. District Court for the Eastern District of Pennsylvania, Robreno ruled in favor of The Boeing Company when he dismissed plaintiff Marilyn Gillen’s claims alleging take-home exposure.

“Although Mrs. Gillen is theoretically a foreseeable plaintiff, the specter of limitless liability and the lack of a relationship between Mrs. Gillen’s claim and defendant’s conduct weighs heavily against this court imposing such a duty,” Robreno wrote.

Robreno used the Althaus factors when he addressed whether an employer owes a duty to the spouse of an employee to warn of the hazards of exposure to asbestos carried home on the employee’s work clothing under Pennsylvania law.

Claimant Marilyn alleges she was exposed through take-home exposure as well as direct exposure from her own employment.

She worked as a secretary at the Boeing Vertol facility in Ridley Park, Penn., from 1966 to 2005, where she alleges she was exposed to asbestos when various asbestos abatement projects were performed within her proximity.

Gillen’s husband also worked at the Boeing Vertol facility, where he worked as a machinist from 1966 to 1970 and from 1973 to 2005.

Gillen claims she was exposed to second-hand asbestos exposure when she laundered her husband’s work clothing in her home.

Gillen was diagnosed with mesothelioma as a result of her asbestos exposures.

Boeing moved to dismiss Gillen’s “Household Exposure” allegation, saying Pennsylvania law does not support the claim. Robreno agreed.

The parties agreed that they are only disputing whether Boeing owed a duty to Gillen for take-home exposure.

“It is this claim relating to take-home exposure due to Mrs. Gillen’s laundering of Mr. Gillen’s work clothing in her home, and not her claim relating to her exposure while working as a secretary at Boeing, that is currently at issue,” Robreno explained.

Because there is no authority, or previous decisions, from the Pennsylvania Supreme Court or any Pennsylvania appellate court addressing the issue of take-home exposure to asbestos, Robreno had to predict how Pennsylvania’s highest court would decide the case.

Robreno wrote that Gillen’s relationship with Boeing as it relates to her take-home exposure allegation is “essentially that of ‘legal strangers’ under the law of negligence,” because the alleged exposure occurred in Gillen’s home, off-premises.

“Mrs. Gillen argues that her relationship with Boeing was different than the typical take-home exposure plaintiff because she also worked for Boeing,” Robreno wrote. “While true, this has no bearing on the question of whether Boeing owed a duty to Mrs. Gillen as an employee’s spouse who was exposed to asbestos in her own home.”

For this dispute, Robreno added that the court must view the relationship between the parties in the context of take-home exposure, “not in the context of any connection outside the circumstances of this lawsuit that the parties may have with each other.”

Robreno wrote that “with the benefit of hindsight,” it's arguable that it was foreseeable that employees exposed to asbestos at work would also bring the fibers home on their clothing and expose those at home.

However, the court must determine whether the harm was foreseeable in the first instance, not in hindsight.

In order to prove foreseeability, therefore, Gillen must show that Boeing knew, or should have known, that her husband took home his work clothing and exposed Gillen to the asbestos fibers while she laundered the clothes, which was not proven here.

Furthermore, even if Gillen was considered a foreseeable third party, Robreno held that foreseeability is not enough to determine that Boeing owed a duty.

“The consequence of imposing a duty in situations of take-home exposure weigh heavily against imposing a duty on defendant Boeing,” he wrote. “Liability for take-home exposure would essentially be infinite.”

“Therefore, if Boeing owed Mrs. Gillen a duty, it would similarly be said to owe a duty to children, babysitters, neighbors, dry cleaners, or any other person who potentially came in contact with Mr. Gillen’s clothes,” he added.

Robreno concluded that the Althaus factors do favor imposing a duty on Boeing to Gillen and granted Boeing’s motion to dismiss the plaintiff’s take-home exposure claims.

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

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