OLYMPIA, Wash. (Legal Newsline) - Jurors didn’t need to be instructed on the defense of “known and obvious” risks in the case of a worker who developed a deadly cancer decades after a three-month assignment removing asbestos from a Mobil refinery in 1979, the Washington Supreme Court ruled.
Acknowledging it was a close call, the high court said even though even though the worker used masks and other safety measures and worked for a contractor specializing in asbestos removal, there was no evidence he knew as much as Mobil about the true risks of asbestos exposure. Two justices dissented, saying Mobil – now ExxonMobil – should have been able to present the jury with a defense that the worker knew handling asbestos was dangerous.
Warren Wright worked for Northwestern Industrial Maintenance in 1979 when Mobil hired the firm to remove asbestos insulation at its refinery in Ferndale, Washington. The assignment ended after three months and Wright went on to work on other refinery jobs until he retired in 1988. After his death in 2015, an autopsy revealed he had mesothelioma, a deadly cancer of the chest lining associated with asbestos exposure.
Wright’s son Wayne sued several companies, including 3M and ExxonMobil, in 2018. All the other defendants settled but Exxon went to trial, where it asked the court to instruct the jury on the law of “known or obvious dangers,” which can bar recovery unless the property owner should have “anticipated the harm despite such knowledge or obviousness.”
The judge refused after hearing trial testimony that Wright supervised the other workers, ran safety meetings where masks and measures like wetting down insulation to control dust were discussed. Wright’s former coworkers testified they didn’t know asbestos could cause cancer, however, and hadn’t received any education about the dangers of asbestos. Washington certify asbestos removal workers until 1984.
The jury returned a $4 million verdict, later reduced to $2.3 million to account for other settlements, and ExxonMobil appealed. But an appeals court upheld the verdict, as did the Washington Supreme Court in an Aug. 3 decision.
“Whether there was substantial evidence that Wright knew the dangers of asbestos in 1979 was a close decision,” the Supreme Court acknowledged. But the trial judge’s decision law within the court’s discretion, the court concluded.
“The evidence at trial shows that Wright knew that there was asbestos at the Ferndale refinery,” the court said. “However, Mobil does not point to any evidence showing that in 1979, Wright appreciated both the gravity of the harm caused by asbestos exposure and the probability that such harm would occur despite his efforts to take safety precautions.”
Justice Barbara Madsen dissented, joined by Justice Sheryl McCloud. She said ExxonMobil should have had the opportunity to a defense under Rule 343A of the Washington Rules of Civil Procedure for obvious risks.
“Wright’s company was in the business of removing building materials that contained asbestos,” she wrote. “The record is clear that he was knowledgeable about the dangers of asbestos and, in response, took robust safety precautions.”
Asbestos was widely known by doctors to cause deadly lung disease by the 1930s and the Occupational Health and Safety Administration regulated industrial asbestos exposure levels from its formation in 1970. The Environmental Protection Agency banned sprayed-on asbestos insulation in 1973 and in 1978 the federal government sent a 3-page safety warning to every physician in America.
The Washington Defense Lawyers Association, retail and hospitality groups, the U.S. Chamber of Commerce, energy and building industry groups wrote briefs in support of ExxonMobil, while Washington trial lawyers filed a brief in support of Wright.