Take-home asbestos exposure claim OK

A divided Supreme Court says Virginia will allow a lawsuit against a shipyard over the cancer death of a woman allegedly exposed to asbestos brought home by her shipworker father.

The 4-3 decision on Oct. 11 “reshapes tort law” according to a news release from the University of Virginia law school, where Prof. Leslie Kendrick celebrated victory after her first argument at the Supreme Court.

The Supreme Court majority acknowledged that courts nationwide are split on the issue, but it downplayed any widespread impact, saying the decision is analogous to more mundane liability concepts, such as exposure for wandering cows.

“The concept of a mobile hazard that leaves a premises is not new to this Court, and asbestos that predictably leaves the property is not unlike livestock or any other hazard posing a risk of harm to persons outside the premises,” wrote Senior Justice LeRoy F. Millette Jr. for the majority.

Others saw dire implications. The decision “creates a duty to a potentially limitless class of plaintiffs” and is unprecedented in Virginia, countered Chief Justice Donald W. Lemons in dissent.

The court’s 14-page ruling, with 18 pages of dissent, is Quisenberry v. Huntington Ingalls Inc. (VLW 018-6-074).

Certified question

The decision came on a certified question from a federal court grappling with a take-home asbestos exposure case. Bennie Plessinger worked at Newport News Shipbuilding and Dry Dock, a business now known as Huntington Ingalls Inc. He routinely brought home asbestos dust on his clothing, the lawsuit alleged. Plessinger’s daughter, Wanda, regularly helped launder her father’s clothes, shaking off and breathing in the asbestos dust, the suit said.

Wanda was diagnosed with mesothelioma in 2013 and died three years later. Mesothelioma is a rare but deadly cancer associated with exposure to asbestos. Wanda’s son, Wesley Quisenberry, brought the wrongful death action against the shipyard in Newport News Circuit Court.

The shipyard removed the case to federal court and asked the judge to seek guidance from the Supreme Court of Virginia. The judge agreed and the Virginia justices accepted the certified question.

The Supreme Court first decided to restate the certified question. The federal court posited that the employer had “no relationship” with the family member alleging exposure. The Virginia justices removed the “no relationship” language to allow analysis as to whether there was a sufficient relationship to give rise to a duty.

Limits of duty

At oral argument in April, the give-and-take focused on the need to define the scope of duty.

“Every Virginia circuit court that has dealt with this specific issue of liability for asbestos exposure for family members – every one of those circuit courts but one – has held that there was a duty,” Kendrick told the court.

“We can call it ‘foreseeability,’ we can call it ‘relational.’ We are happy to use the word ‘relational.’ But, in cases like this, we are talking about a defendant creating a risk through their own conduct that then generates a risk to someone within the scope of harm, and the question is who’s within that scope of harm,” Kendrick said.

Representing the shipyard, Alexandra B. Cunningham of Richmond cautioned against reliance on a concept of ‘foreseeability” to define the scope of duty.

“I think the primary way that foreseeability comes into the analysis of a negligence claim in Virginia is in the breach and proximate cause analysis,” Cunningham said. “You have to be sure the duty doesn’t turn into a duty to the world,” she said.

From the bench, Lemons asked Kendrick to address the concept of foreseeability. She conceded “it’s a little bit of a weasel word…”

Then she added, “But when you dig into it and think about – how do you define the scope of the harm, the scope of the risk – ‘foreseeability’ is going to come into that a little bit.”

Wide interest

Business interests, the personal injury bar and asbestos lawyers weighed in with amicus briefs.

“Employer liability for off-site exposure to asbestos is a novel concept driven by plaintiff lawyers’ hunt for non-traditional solvent defendants,” wrote Mark A. Behrens for a group of Virginia employers and their insurers.

The Virginia Trial Lawyers Association said the case did not present a new post hoc duty, but was simply the application of common law to the operative facts.

“Nor is this a boundless ‘duty to the world’; it is instead simply a recognition that the duty extends to at least to that identifiable class of people for whom harmful exposure is most foreseeable, i.e., the people who lived with the workers on which the asbestos was leaving the premises,” wrote E. Kyle McNew for the VTLA.

Asbestos claimants’ lawyers put it simply: “The duty issue certified to this Court is based on longstanding Virginia law that requires a business to prevent hazards from leaving its property and causing foreseeable harm to persons located off the property.” The brief of the asbestos firms was penned by William W.C. Harty of Newport News.

Duty established

The court majority said a specific course of conduct gives rise to a specific duty extending to specific persons. “In defining those to whom a duty is owed, we have said this general duty is owned ‘to those within reach of a defendant’s conduct,’” Millette wrote for the majority.

The majority cited the seminal 1928 New York high court decision in Palsgraf v. Long Island R.R. Co. describing a “range of apprehension” and saying that “risk imports relation.” The Virginia majority used the term “zone of danger.”

“The artificial hazard created by the Shipyard – asbestos dust – was allegedly released through the Shipyard’s course of conduct and moved to place Wanda in danger,” Millette wrote.

But the duty recognized by the court was not unlimited, the majority said. “The scope of the duty and what constitutes negligence is inexorably reined in by what is reasonably foreseeable at the time, because a jury can only hold a defendant to the ordinary care and skill employed given the knowledge at the time,” Millette wrote.

Dissent

Lemons said the majority relied on a “featureless generality” instead of a particular duty the shipyard owed to the plaintiff. “Foreseeability is not a factor to be considered when examining whether a duty exists,” Lemons wrote, joined by Justices Elizabeth A. McClanahan and D. Arthur Kelsey.

The creation of a take-home exposure duty “upsets the careful balance struck by the legislature in the Workers’ Compensation Act,” the dissenters said.

Kelsey took on the workers’ comp issue at oral argument: “You say it’s up to us, but yet there’s been not a single case involving an employer’s negligence at the worksite affecting an employee and then the employee’s family suing – not a single case like that in 200 years of our jurisprudence. Why isn’t that fact alone a good reason to say, ‘No, this is a public policy judgment. And the legislature needs to answer this. And they need to look at whether the comp act should be amended to include these scenarios’?”

Kelsey’s objections were echoed in Lemons’ dissent. “A change of this magnitude should be accomplished by an act of the legislature, not by a judicial pronouncement,” Lemons wrote.

“The duty created by the majority today is limitless. The majority opinion does not propose any framework for limiting an employer’s duty to those who share living quarters with its employees,” Lemons said.

McClanahan wrote separately in dissent to distinguish the 2012 case of RGR LLC v. Settle, relied on by the majority. That case involved a duty arising from the ownership or occupation of land, not from employment of a relative, McClanahan said.

Counsel

The Quisenbery family was represented by lawyers from the Dallas-based firm of Waters Kraus & Paul who asked Kendrick to handle argument on the tort duty issue.

The case suggests that “defendants cannot use dangerous substances in ways that risk the health of non-employees and then avoid liability entirely by asserting that they have no duty to those individuals,” Kendrick said in the U.Va. news release. She declined a request for an interview.

“The court properly rejected the shipyard’s attempt to radically redefine and limit the tort law of duty in Virginia,” said Peter Kraus of Dallas. “This was a straightforward tort law case and we are gratified that the court properly followed more than a hundred years of existing precedent to find that the shipyard owed Wanda Quisenberry a duty of care to protect her from the asbestos exposure that killed her.”

Cunningham – the attorney for the shipyard – said she could not comment. She referred inquiries to the shipyard, which said it did not comment on pending litigation.

The federal case remains pending in Newport News federal court before U.S. District Judge Arenda L. Wright Allen.