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Saturday, October 19, 2019

Arizona Supreme Court to decide liability in take-home asbestos exposure case

By Dee Thompson | Mar 16, 2017

PHOENIX (Legal Newsline) – The Arizona Supreme Court is considering whether a company should be liable for injuries caused by an employee taking home asbestos fibers on his clothing, years ago. It will hear oral arguments on April 25 in the case of Quiroz v. Alcoa.

The plaintiffs, Ernest V. and Mary Quiroz, filed suit claiming that because the father of Ernest V. Quiroz worked at Reynolds Metal Co. from 1952 until 1966, and regularly brought home asbestos fibers on his clothing, that there was “take home exposure” and the plaintiff was liable for the death of Ernest V. Quiroz.

In 2013, Ernest V. Quiroz received a diagnosis of mesothelioma, a type of cancer caused by asbestos exposure. He died in 2014, and the complaint was amended to reflect that fact.

The lower court granted summary judgment in favor of the defendant, Alcoa. The plaintiffs appealed. They argued that “Dr. Quiroz’s father… had been exposed, on numerous occasions, to asbestos-containing products, and machinery requiring or calling for the use of asbestos or asbestos-containing products or products which caused the release of aspirable asbestos fibers… and, in so doing, his clothing, tools, car, body and general surroundings were contaminated with great quantities of asbestos fibers."

They claimed Ernest V. Quiroz breathed the fibers because of his father bringing them home. These cases are known as “take-home exposure” cases.

Attorney Mark Behrens is a partner with Shook, Hardy and Bacon in Washington, D.C., and is an expert in asbestos litigation. He notes that different states rule differently in these types of cases.

“Most of these exposures occurred before OSHA began to institute workplace safety regulations in the early 1970s," he told Legal Newsline. "Whether liability may be imposed, however, depends on the tort law in the state.

“Take-home exposure cases are fairly common, but many states have held that premises owners are not liable either because there was no relationship between the plaintiff and premises owner or because the exposures occurred before the connection between take home exposures and disease was established in the scientific literature.”

Behrens expects the Arizona Supreme Court will uphold the ruling by the court of appeals next month, noting, “The issue of whether a duty is owed in these circumstances varies by state law. In states where the courts decide legal duties based on the relationship between the parties and public policy considerations, the courts uniformly hold that an employer/premises owner owes no duty of care to a member of a household injured by take home exposure to asbestos."

Behrens said courts have to be concerned about creating an indeterminate class of potential plaintiffs - non-employees who could sue someone else's employers. 

"In nearly every instance where courts have recognized a duty of care in a take home exposure case, the decision turned on the court’s conclusion that the foreseeability of risk was the primary (if not only) consideration in the duty analysis," he said.

"Arizona case law suggests that Arizona is a 'relationship' duty state and would, therefore, decline to find a duty, as the appellate court held.”

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