A landmark asbestos litigation decision that offers justice to victims of secondary asbestos exposure was recently won by Kazan Law in the Supreme Court of California. The victory was won by Kazan Law partner Ted Pelletier. Thanks to this important new court ruling, companies that exposed workers to asbestos can be held liable for exposing people living in a worker’s home who become sick from asbestos the worker unknowingly brought into the home on clothes, hair, tools etc.
Kazan Law is pleased to announce that the state supreme court decision upholds an appeals court decision allowing a suit to proceed against Pneumo Abex, a manufacturer of asbestos brakes. The suit was brought by Johnny Kesner, who was exposed to asbestos dust brought home from the Abex plant by his uncle, a plant employee. But the state supreme court decision will have ramifications beyond this case.
We talked with Ted Pelletier about the state supreme court decision and what it means for asbestos litigation.
What is the significance of this asbestos litigation victory?
Ted Pelletier: This asbestos litigation decision by the Supreme Court of California removes what had been an unwarranted obstacle to genuinely injured people seeking justice in the court system.
This is about helping people who have contracted and are dying of asbestos-caused diseases. It has removed an obstacle for these people. That is really important to note. To hear people opposed to this litigation describe it, they are trying to convince everyone that we are creating new rights; that this is an expansion. In truth all this does is restore California law to what it has long been.
This state supreme court decision doesn’t mean that anyone is automatically liable for anything. It only means that people who were exposed to asbestos have a right to seek justice for their exposure.
Does this state supreme court decision mean this is now a law?
Technically it is an opinion of the Supreme Court of California about an existing state law. In our system the laws are written by the legislative branch. The job of the courts is to interpret the laws. So in this case of asbestos litigation, the California supreme court is interpreting what the legislature has already done.
Over 100 years ago, the legislature enacted a law requiring everyone to act with reasonable care toward one another. The reasonable care law is Civil Code 1714, enacted in 1872. What it means is that we all have to take care of each other and be careful.
If you aren’t careful, and act unreasonably and hurt someone or damage their property, you can be responsible for the damage.
The law says everybody needs to exercise reasonable care so as not to hurt others.
In some states this is part of the court-made “common law,” but in California our legislature intentionally made this law part of the Civil Code. Because our legislature has said this, the courts can’t just decide to change it. Absent some compelling reason, it is up to state legislature to change it.
How does asbestos litigation enter into it?
Ted Pelletier: The California Civil Code says that everyone is supposed to be careful and take care of each other, in the management of their “person” and “property.” So now you take that concept into the world of industry. Pneumo Abex Corporation was a company that made automobile brakes. Asbestos was used in brakes. For a long time, Pneumo Abex knew very well about the dangers involved, but it wasn’t warning people who used or worked with their products. Under the Civil Code, Pneumo Abex was not careful. It exposed people to material it knew was poison.
How did secondary asbestos exposure become part of asbestos litigation?
Ted Pelletier: Asbestos-related cancers like mesothelioma develop over ten to 30 years. People exposed to asbestos in the 1950s start getting sick in the 1980s. Around that time, we began to see a rise in illness in people who never worked at places like Pneumo Abex. We began to see it in the wives and kids of people who worked there.
A worker would come home in his dusty clothing and hug his wife and play with his kids. His wife would take his dusty clothing and shake it out and put it in the washing machine. That dust doesn’t go away. That is secondary asbestos exposure. And the sad reality is that you don’t have to be an industrial worker to get sick.
Why did this case go to the state supreme court level?
Ted Pelletier: The state supreme court gets involved when there is a conflict in the lower courts about how a law is interpreted. That is what happened here.
As cases of secondary asbestos exposure came up, companies argued, “We didn’t know we were exposing those people too.” Basically they knew they were poisoning people who worked for them but claimed they did not know they were poisoning more people back home. So they claim they were not acting without reasonable care in these cases.
The businesses say that they are willing to pay damages for their former workers but not for the other people they exposed off the worksite. The businesses say it is too much and it will put them out of business. Some courts around the country have been sympathetic to that, so some states do not allow secondary-exposure cases.
Several years ago, one California appeals court agreed with this position. It said that secondary asbestos exposure is an exception to the Civil Code, and companies can’t be liable to people exposed at home for not being reasonable. The appeals court in our case disagreed, raising a conflict.
Now, the California Supreme Court has ruled in our favor, upholding the Civil Code. The judges ruled that it doesn’t matter whether the exposure took place on the job or at home. These people who have been made ill by careless asbestos exposure deserve justice. And now they will be able to get it.
Do you anticipate a lot of other asbestos litigation cases now for secondary exposure?
Ted Pelletier: Honestly, no. One of the big arguments that the other side made is that this state supreme court decision is going to open up the “floodgates” of litigation and put them out of business. That was their asserted justification for keeping people out of the courts. People are dying of a horrible disease, but they are only worried about their business.
One of the things that the supreme court found compelling in our case was taking a look around the country at how other states have approached this in different ways. Some states are very pro-business, but other states have rejected the defense’s position. And what has happened in those states – Tennessee, New Jersey, Louisiana and Washington – in the last ten years since they allowed secondary-exposure cases to proceed? Nothing. There has been no increase in cases. Nor will there be any increase in California.
How prevalent is secondary asbestos exposure?
Ted Pelletier: For the past ten years, there have been about 2,500 cases of mesothelioma diagnosed annually in the United States. About 10 percent of those are in California. So that means approximately 250 mesothelioma diagnoses in California every year.
Of those 250 mesothelioma cases in California, about seven percent or eight percent involve a secondary or take-home component. Usually people who get mesothelioma worked in industry-related jobs. But a small percentage were exposed through asbestos unknowingly brought home by someone in their household who worked with asbestos. That’s about 20 people a year. It is awful and it is tragic but it is not going to bankrupt any major company or bring down the courts as business interests have implied.
As I said earlier, the state supreme court’s decision simply removes an obstacle to people who are undeniably sick and dying, and their families, to seek justice.
How did you and Kazan Law become involved in this asbestos litigation?
Ted Pelletier: This case was originally filed by another firm. The trial court dismissed the case. It was appealed and pending in the courts. They turned to Kazan Law for help and had me take over the case as lead counsel because I have the expertise needed at this level. I had worked for over 15 years in the appeals courts before joining Kazan Law. I argued the case in the appeals court, then did all the briefing and argument in the state supreme court with the support of my firm – with the support of the whole Kazan firm of course!
To put it simply, when it was time to tee up this big important statewide issue, they came to Kazan Law. We took over as lead counsel brought home this landmark decision. We are very honored to be able to help the victims of this terrible asbestos tragedy.
Congratulations!
Ted Pelletier: Thank you.
Mr. Michael Burch was diagnosed with pleural mesothelioma in May of 2016 when he was 64 years old. A lifelong California resident, he and his wife Cindy raised four daughters and have four grandchildren.
