Comment: Knowledge Circles and the Duty of Care

There are significant reasons for pursuing solutions that are flexible and nuanced in the context of second-hand asbestos exposure. Those reasons center on history and geography-the history of asbestos manufacture and product use within the United States and the geography of both asbestos use and asbestos-related tort claims.In her Note, Ms. Flinn discusses the development of three distinct strands of state tort law addressing the potential duty of care that an employer might owe an employee's family member who was exposed to asbestos.1 The three distinct approaches center around first, foreseeability of the danger and harm;2 second, the relationship between the claimant and the employer;3 and third, the misfeasance or nonfeasance approach, which focuses on whether the relevant behavior is an act or omission.4 Ms. Flinn addresses advantages and drawbacks of each of these positions and indicates whether these approaches tend to favor plaintiffs or defendants in tort litigation.The Note then turns to evaluating two important recent developments in the field: the failed history of attempted federal legislative solutions5 and the novel approach of the Third Restatement,6 which creates a presumption of a duty where there is a risk of physical harm, but allows that presumption to be outweighed by articulated policy considerations.7 Ultimately Ms. Flinn rejects both pursuing federal legislative solutions and the approach of the Third Restatement.8 She encourages a "multifactored test" approach that would consider each of the tort factors traditionally relevant to an analysis of duty-including both the foreseeability of the harm and the relationship between the parties-while also incorporating the Restatement's public policy approach to duty.9Significantly, the Note recognizes that state tort law diverges when weighting these and other factors in the duty analysis, with some states relying heavily on foreseeability and others weighting the factors more evenly.10 Ms. Flinn encourages states to continue to use each of the factors, weighting them according to their own historical practice.* 11 Additionally, she argues that the state legislatures rather than the federal should take on the task of considering appropriate legislation that would weight policy considerations raised by second-hand exposure cases.12In this Comment, I want to take the opportunity to explain some additional support for the Note's approach, which rejects what many have sought in terms of national consistency within this line of cases. My observations on these topics come from direct experience-through a few years of litigating products liability claims that included not only premises-based asbestos exposure claims but also second-hand exposure cases. In litigating those cases, I applied my training as a legal historian to the review of hundreds of boxes of client documents dating to the early half of the twentieth century along with summaries of research from numerous other cases and industries. In the following, I offer a few reflections about the complexity of the historical story, based on my own exposure to pending cases.As the Note explains, one of the differences between the Third Restatement's approach and the foreseeability approach is that the former makes duty a question of law, while the latter approaches duty through a question of fact.13 The foreseeability approach, which is arguably also inherent in many policy considerations for second-hand asbestos exposure claims,14 immediately generates historical questions. Who knew that asbestos was lethal enough to cause harm to an employee's family members when carried home on clothing? When was that knowledge common or expected?Unfortunately, in seeking simple, comprehensive, and national answers to those questions, courts often speak of the knowledge of "the asbestos industry,"15 a phrase too historically broad to generate very accurate conclusions. As a naturally occurring mineral substance with extraordinary physical properties in terms of thermal capacities and the manipulability of mineral fibers that rivaled fabrics, asbestos permeated industrial work within the United States for decades. …