• Sixth Circuit Finds Asbestos Bystander Exposure Was Not Foreseeable Under Kentucky Law
  • March 10, 2009 | Author: Craig T. Liljestrand
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • The United States Court of Appeals for the Sixth Circuit recently found in Martin v. Cincinnati Gas And Electric Co., et al. (2009 WL 188051) (6th Cir. 2009) that under Kentucky negligence law, a father’s employer (Cincinnati Gas & Electric Co. (CG&E)) and a manufacturer of asbestos-containing products (General Electric (GE)) were not liable for allegedly exposing the son to asbestos dust that was brought home on the father’s work clothes. The court held that it was not foreseeable for either defendant to have had actual or constructive knowledge of bystander exposure during the relevant time period of exposure.

    The decedent, Dennis Martin, died from malignant mesothelioma in 2002. His estate alleged that his mesothelioma occurred as a result of his secondary exposure to asbestos from his father’s work clothes. Martin’s father, Vernon Martin, worked for CG&E beginning in 1951; Dennis was born in 1952. CG&E company documents indicated that GE supplied asbestos gaskets and pipe insulation from 1948 to 1951. The record further established that Vernon Martin would often wear his dusty work clothes home after work. When he got home, Dennis Martin sometimes would sit on his father’s lap or give his father hugs while his father was still wearing his work clothes. His mother then shook out his father’s work clothes in the basement to remove the excess dust and dirt. Dennis Martin would often play in the basement as a child near the area where his mother was doing the laundry.

    The central focus in the case was whether CG&E and GE owed plaintiff a legal duty. The most important factor in determining whether a duty exists is foreseeability. Under the court’s analysis, CG&E and GE clearly did not have actual knowledge of the decedent’s bystander exposure to asbestos. The question therefore became whether defendants had “constructive knowledge” of it.

    Plaintiff submitted an expert report prepared by Dr. Barry Castleman, which stated that “studies on the occurrence of asbestos disease that included family members of asbestos-exposed workers were not published until the 1960s." Castleman also concluded in his report that “the hazard of asbestos exposure to families of the workers was scientifically knowable since the 1950’s." Since GE stopped supplying CG&E with asbestos products in 1951 and the Castleman expert report found that the risk to family members was only knowable beginning in the 1950s, the court found that there was no evidence of any general knowledge of bystander exposure in the industry at that time. As to CG&E, the court likewise found no evidence to show that CG&E had any knowledge of the dangers of bystander exposure. Castleman’s expert report admitted that it was not until 1965 that the first published studies of asbestos bystander exposure began to appear. However, Vernon Martin’s asbestos exposure stopped in 1963. As such, CG&E could not have had any constructive knowledge of the dangers of bystander exposure in this case.

    The court took note of cases from other jurisdictions which found that secondary exposure was not foreseeable in the 1950s or the early 1960s. See e.g., CSX Transp. Inc. v. Williams, 608 S.E.2d 208, 210 (Ga. 2005); Adams v. Owens-Illinois, Inc., 705 A.2d 58, 66 (Md. Ct. App. 1998); In re Certified Question from Fourteenth Dist. Ct. of Appeals of Tex., 740 N.W.2d at 218-20; In re New York City Asbestos Litig., 840 N.E.2d 115, 121 (N.Y. 2005); and Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 462 (Tex. Ct. App. 2007).