A Continuing War with Asbestos: The Stalemate among State Courts on Liability for Take-Home Asbestos Exposure

Table of ContentsI. Introduction 708II. Background: State Court Split on Whether Employers Owe a Duty in the Case of Take-Home Asbestos Exposure 711A. First Category: Foreseeability of Harm 714B. Second Category: Relationship Between the Defendant and the Plaintiff 719C. Third Category: Misfeasance and Nonfeasance Under the Second Restatement 724III. The Third Restatement's Proposed Analysis for Duty Determination 728A. Support for Section 7 7311. The Elimination of Foreseeability from Duty Analysis 7312. The Creation of Transparency in Court Opinions 733B. Criticisms of Section 7 7341. Failure to Reflect the Predominant Judicial Approach 7352. Failure to Acknowledge the Link Between Foreseeability and Public Policy Considerations 737C. The Problems with Applying Section 7 to Take-Home Asbestos Exposure Cases 7391. Section 7's Interference with Motions for Summary Judgment 7392. The Stalemate of Competing Public Policies in Take-Home Asbestos Exposure 743IV. Suggested Approaches to Handling Take-Home Asbestos Exposure Cases 745A. Judicial Solution: The Multi-Factored Test 746B. Calling for a Legislative Response 751V. Conclusion 756I. IntroductionThe killer of as many as 265,000 people by the year 2015.1 The cause of illness for 10,000 people per year.2 "[T]he longest-running mass tort litigation in the United States."3 The reason over $70 billion was spent in litigation costs through 2002.4 The source of over 400 pending cases in the state of Delaware alone as of October 2012.5 "[A] tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s."6These phrases describe the unexpected and devastating effects of asbestos, a natural mineral with chemical and physical characteristics that have made it extremely useful for industrial work.7 Since the early 1900s, asbestos has affected American workers in almost every industry, including the manufacturing, shipbuilding, insulation, and automobile industries.8 The federal government has now classified asbestos as a human carcinogen because exposure to asbestos can increase the risk of lung cancer, mesothelioma (a cancer of the lining of the chest cavity), and asbestosis (a nonmalignant lung disorder).9 These disorders represent just a few of the health hazards posed by asbestos exposure.10 In fact, asbestos is responsible for approximately half of the deaths caused by occupational cancer, and though use of asbestos has decreased, the number of those affected by asbestos-related illnesses continues to rise.* 11Legal scholar Victor E. Schwartz summarizes the current state of asbestos litigation: "The war is still being waged but the battlegrounds have shifted to new issues."12 The "next decade of asbestos litigation" looks to the consequences of asbestos exposure extending beyond industrial workers.13 Industrial workers' family members have increasingly brought claims of "take-home" asbestos exposure (also designated as "secondary exposure," 'bystander exposure," or "nonoccupational exposure") against the workers' employers. …