D ennis Martin of Kentucky died of mesothelioma in

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1 Product Safety & Liability Reporter Reproduced with permission from Product Safety & Liability Reporter, 39 PSLR 1229, 11/07/2011. Copyright 2011 by The Bureau of National Affairs, Inc. ( ) ASBESTOS TOXIC TORTS Take-Home Exposure Claims on the Rise BY CHRISTINE G. ROLPH, ARTHUR F. FOERSTER, Christine G. Rolph is global co-chair of Latham & Watkins Products Liability, Mass Torts and Consumer Class Action Practice Group, and a partner in the firm s Washington, D.C., office. She has extensive litigation expertise across a broad range of products liability, toxic tort, insurance coverage and multi-plaintiff actions, and can be reached at christine.rolph@lw.com. Arthur F. Foerster is a partner in the Chicago office of Latham & Watkins. His practice focuses on environmental law and litigation. He has substantial experience litigating toxic tort actions and matters under CERCLA, the Clean Air Act, and numerous other federal and state environmental statutes and regulations, and can be reached at arthur.foerster@ lw.com. Hans H. Grong is an associate in the Chicago office of Latham & Watkins, and can be reached at hans.grong@lw.com. The authors also wish to acknowledge Andrew Robinson, an associate in the Washington, D.C., office, and Tyler Hagenbuch, an associate in the Chicago office, who contributed to this article. AND HANS H. GRONG D ennis Martin of Kentucky died of mesothelioma in His estate filed suit against his father s former employer (a utility), as well as a manufacturer of asbestos-containing products who supplied materials to the employer. The estate claimed that Mr. Martin s mesothelioma was the result of exposure to asbestos taken home from work by his father. 1 Mr. Martin allegedly was exposed to asbestos when hugging his father and while playing in the basement where his father s work clothes were laundered. In January 2009, the Sixth Circuit Court of Appeals applying Kentucky law rejected the estate s claims, finding no duty of care existed because during the time of alleged negligence, the risk of bystander exposure was not foreseeable. A year later, in June 2010, the Illinois Appellate Court for the Fifth District reached the opposite conclusion on nearly identical facts. 2 Annette Simpkins contracted mesothelioma and filed suit against a number of defendants, including her ex-husband s former employer (a railroad). Mrs. Simpkins claimed that her mesothelioma was caused in part by her exposure to asbestos taken home from work by her former husband. Mrs. Simpkins alleged she was exposed when laundering her former husband s work clothes. Although Mrs. Simpkins was exposed during nearly the identical time frame as Mr. Martin, the Illinois Appellate Court held a legal duty did exist because the risk of asbestos exposure to bystander family members was foreseeable. 3 Both Mrs. Simpkins s and Mr. Martin s cases present typical take-home exposure claims namely, a plaintiff who is indirectly (or secondarily) exposed to toxic substances through a third party, rather than directly 1 Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 441 (6th Cir. 2009). 2 Simpkins v. CSX Corp., 929 N.E.2d 1257 (Ill. App. Ct. 5th Dist. 2010), appeal granted 942 N.E.2d 462 (Ill. 2010). 3 But see Estate of Holmes v. Pneumo Abex, LLC, 2011 WL (Ill. App. Ct. 4th Dist. June 22, 2011) (holding no duty between wife and husband s employer because the risk of injury was not reasonably foreseeable at the time of wife s exposure). The split between the Illinois Appellate Courts is currently pending before the Illinois Supreme Court. COPYRIGHT 2011 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN

2 2 4 Courts in Delaware, Georgia, Illinois, Iowa, Kansas, Maryland, Michigan, Ohio and New York that applied the relationship test have held no duty exists. See Prince v. E.I. du Pont de Nemours & Co., 26 A.3d 162 (Del. 2011); Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009); In re Asbestos Litigation, 2007 WL (Del. Super. Ct., Dec. 21, 2007); CSX Transp., Inc., v. Williams, 608 S.E.2d 208 (Ga. 2005); Nelson v. Aurora Equip. Co., 909 N.E.2d 931 (Ill. App. Ct. 2009); Van Fossen v. MidAmerica Energy Co., 746 N.W.2d 278 (Iowa Ct. App. 2008), aff d, 777 N.W.2d 689 (Iowa 2009); Kan. Stat. Ann (a); Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. Spec. App. 1998); In re Certified Question from 14th Dist. Ct. App. of Tex., 740 N.W.2d 206 (Mich. 2007); Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448 (Ohio 2010); In re New York City Asbestos Litig., 840 N.E.2d 115 (N.Y. 2005). 5 Other than certain courts in Texas, Illinois and Kentucky who have recently bucked the trend, courts in California, Illinois, Kentucky, Louisiana, New Jersey, Tennessee, Texas, and Washington that applied a foreseeability test have imposed a duty. See Condon v. Union Oil Co., 2004 WL (Cal. Ct. App., Aug. 31, 2004); Martin, 561 F.3d at 439 (applying Kentucky law); Chaisson v. Avondale Indus., Inc., 947 So. 2d 171 (La. Ct. App. 2007); Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 458 (Tex. App. 2007), pet. for review denied, 2008 Tex. LEXIS 1084 (Nov. 21, 2008); Rochon v. Saberhagen Holdings, Inc., 140 Wash. App (Wash. Ct. App. 2007). As discussed above, in Simpkins v. CSX Corp., the Illinois Appellate Court for the Fifth District applied what amounted to a foreseeability test to impose a duty of care. That result, however, conflicts with both the Second District s opinion in Nelson v. Aurora Equip Co., which used a traditional relationship analysis, and the Fourth District s opinion in Estate of Holmes v. Pneumo Abex, LLC, which used a foreseeability test but found no duty of care. As a result, there is now a split within Illinois as well. 6 Two courts in Texas, the Illinois Appellate Court for the Fourth District, and the Court of Appeals for the Sixth Circuit (applying Kentucky law), recently have concluded that no duty existed. See Behringer, 235 S.W.3d at 458; Exxon Mobil Corp. v. Altimore, 2006 WL (Tex. App., Apr. 19, 2007), withdrawn and superseded on other grounds, 256 S.W.3d 415 (Tex. App. 2008); Pneumo Abex, 2011 WL , at *4-5; Martin, 561 F.3d at 439 (applying Kentucky law). through workplace, premises, or residential exposure. These cases illustrate the great disparity in how jurisdictions address take-home exposure. Such bystander claims are becoming commonplace in asbestos litigation and are cropping up in other toxic tort arenas. The central issue in take-home exposure cases is whether or not a legal duty exists that is, does the company owe a duty of care to the secondarily exposed family member such that the company may be held liable for the alleged injury? Until recently, the test the courts chose to answer that question proved determinative as to liability. To date, at least 16 jurisdictions have addressed take-home exposure claims. For the last decade, the success or failure of these claims has depended on whether the court looks to the relationship between the parties, or to the foreseeability of the harm in determining whether a duty exists. If the court used the relationship test, invariably no duty was imposed. 4 If the court applied a foreseeability test, however, the court often would find a duty existed. 5 Recently, however, that stark dichotomy has broken down. Some jurisdictions applying the traditionally more plaintiff-favorable foreseeability analysis have created a higher hurdle for take-home claims. 6 Whether or not these new cases represent a defensefavorable trend, they are instructive to companies facing mass tort litigation they provide successful arguments that can be utilized in other forseeability jurisdictions. This article presents a national survey of the take-home exposure claim as it has developed in asbestos litigation; how the theory is being used outside of the asbestos context; and how the experience and recent developments in the asbestos cases can help companies better plan and prepare for other toxic tort litigation. Duty of Care in Take-Home Asbestos Claims A plaintiff s success as to take home claims depends heavily on whether the court applies the relationship or foreseeability analysis. The defense-favorable relationship analysis focuses on the nexus between the plaintiff and the defendant company. Without the ability to show a close relationship, courts have been unwilling to impose a duty. The plaintiff-favorable foreseeability test, on the other hand, focuses on whether the risk of harm reasonably could have been predicted. The following discussion will elaborate on these two tests as well as a recent set of cases that may represent a new defense-favorable trend that is arising in jurisdictions that apply the foreseeability test. A. Duty of Care The Relationship Analysis In addressing the issue of take-home exposure, at least nine jurisdictions have looked first to the relationship between the parties and whether it was sufficiently close to impose a duty. 7 This approach corresponds to the traditional tort analysis of duty. The two relationships usually alleged in these cases include employer/ employee and premises owner/invitee. 8 The entire basis of a take-home case involves secondary exposure through some intermediary. In these factual circumstances, courts have not been willing to find that the required close relationship exists. For instance, most states impose a duty on employers to provide a reasonably safe workplace. 9 The problem for plaintiffs in the take-home exposure cases, however, is that they were not employees of the defendant and were not exposed in the workplace. Courts universally have rejected the employer/employee relationship as a means to imposing a duty on the defendants. A typical example comes from the Supreme Court of Georgia. In CSX Transportation, Inc. v. Williams, the children of a CSX employee brought suit against CSX for asbestos-related injuries they allegedly suffered as a result of exposure to their father s work clothes. 10 The question before the Georgia Supreme Court was [w]hether Georgia negligence law imposes any duty on an employer to a third-party, non-employee, who comes into contact with its employee s asbestos-tainted work clothing at locations away from the workplace, such as the employee s home? 11 The court concluded that no such duty exists. Although the court recognized that an employer owes a duty to his employee to furnish a reasonably safe place to work[,] none of the 7 See supra, note 4. 8 See supra, note 4. 9 See, e.g., CSX Transp., 608 S.E.2d at 208 ( [A]n employer owes a duty to his employee to furnish a reasonably safe place towork... ) 10 See id. 11 Id COPYRIGHT 2011 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PSLR ISSN

3 3 plaintiffs were actual employees and, thus, the duty did not apply. 12 The court held that an employer does not owe a duty of care to a third-party, non-employee, who comes into contact with its employee s asbestos-tainted work clothing at locations away from the workplace.... [T]he employer s duty to provide a safe workplace is not to be extended to persons outside the workplace Courts also have rejected premises liability as a predicate for imposing a duty. On this theory, plaintiffs have argued that landowners are liable for injuries to invitees resulting from a lack of reasonable care, and that landowners have a duty to conduct activity on their property in a reasonable manner. These arguments have been unsuccessful in the take-home context thus far because the plaintiffs rarely allege any meaningful amount of time on the premises. 14 In refusing to recognize secondary exposure and take-home claims against employers and premises owners, jurisdictions applying the relationship test have recognized the difficulty in drawing the line with respect to secondary exposures, and also are concerned with opening up the asbestos litigation crisis to an entirely new (and limitless) pool of remote plaintiffs. 15 These courts have employed a bright-line approach that avoids the mire of the foreseeability analysis. These decisions are helpful to companies facing toxic tort litigation not only do they firmly limit the pool of eligible plaintiffs (thereby limiting the total exposure faced by the company), but they also provide a brightline analysis that can reduce the inherent uncertainty of litigation and better allow companies to plan and allocate resources. 12 Id. at Id. at See, e.g., Nelson v. Aurora Equip. Co., 909 N.E.2d 931 (Ill. App. Ct. 2009) (rejecting argument to extend a duty in a premises liability case to a person who did not have contact with the premises but who was allegedly injured by asbestos fibers and dust that escaped from the premises ); Van Fossen v. MidAmerican Energy Co., 746 N.W.2d 278 (Iowa Ct. App. 2008) (declining to extend premises liability to a spouse who did not enter property); In re New York City Asbestos Litig., 840 N.E.2d 115 (N.Y. 2005) (stating that landowner did not breach its duty to use reasonable care to protect others outside the premises); In re Certified Question from 14th Dist. Ct. App. of Tex., 740 N.W.2d 206 (Mich. 2007) (stating that the property owner did not owe the plaintiff who was never on or near the property a duty to protect her from asbestos); Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448 (Ohio 2010) (holding statute barred tort liability for asbestos exposure not occurring at premises owner s property). Although there has yet to be a case construing the statute, Kansas has also adopted a law barring tort liability for asbestos exposure unless such individual s alleged exposure occurred while the individual was at or near the premises owner s property. Kan. Stat. Ann (a). 15 See In re New York City Asbestos Litig., 840 N.E.2d at 498 (noting difficulties of drawing line between a spouse and non-household members such as a babysitter or a neighborhood laundry worker). B. Duty of Care The Foreseeability Analysis In eight other jurisdictions that have addressed the issue of take-home exposure, the determining factor in the duty inquiry is not the relationship between the parties, but rather whether the risk of harm was foreseeable. If the harm to the plaintiff was reasonably foreseeable (i.e., the risk of harm was known or reasonably knowable), the company had a duty to prevent the injury. When applying the foreseeability test, most of these courts have been willing to infer that companies should have known of the risk of harm to secondarily exposed persons because the company knew that asbestos exposure was dangerous generally. 16 In other words, for these courts, evidence that a company should have known that asbestos exposure created a risk of harm to the employee is also sufficient to find that the company also should have known that employee exposure at work created a risk of harm to nonemployees who might be indirectly exposed at home even in very small quantities. These courts reason that the danger to family members was foreseeable simply because it was foreseeable that an employee eventually would go home to his family. 17 The New Jersey Supreme Court s decision in Olivo v. Owens-Illinois, Inc. (2006) is a good example of the usual foreseeability analysis. 18 In Olivo, a contract worker brought a wrongful-death suit against his employer alleging that his wife was injured by inhaling asbestos while laundering his work clothes. The New Jersey Supreme Court concluded the employer knew that asbestos was dangerous to employees as early as 1937, and, based on that, the court concluded that the risk of injury to someone like [the plaintiff s wife] is one that should have been foreseeable 19 C. A New Trend? Recently, some courts have concluded that the defendant company did not owe a duty of care to the takehome plaintiff, notwithstanding application of a foreseeability analysis. These courts have focused on a more precise definition of the risk at issue. Specifically, rather than asking whether the general danger of asbestos exposure was foreseeable, these courts have asked whether the dangers of non-occupational, intermittent exposure were foreseeable. In 2009, the Sixth Circuit (applying Kentucky law) decided Martin v. Cincinnati Gas & Electric Company. 20 Although applying the foreseeability test, the 16 See, e.g., Zimko v. Am. Cyanamid, 905 So. 2d 465, 482 (La. Ct. App. 2005) ( Although we recognize the novelty of the duty we recognize in this case and the lack of Louisiana cases on point, asbestos cases often present novel legal issues. Nonetheless, we find, contrary to [defendant s] contention, the pivotal issue here is not the existence of [defendant s] duty to [plaintiff] but rather the breach of that duty or liability. In so finding, we note that a no duty defense in a negligence case is seldom appropriate. ) (citations omitted). 17 See, e.g., Olivo v. Owens-Illinois, Inc., 895 A.2d 1143, 1149 (N.J. 2006) (holding that because defendant was aware that exposure, of sufficient duration and intensity, to asbestos dust or raw asbestos was associated with asbestosis, the risk of injury to an employee s spouse is one that should have been foreseeable.... ); see also Simpkins, 929 N.E.2d at 1264 ( Like the Olivo court, we believe that it takes little imagination to presume that when an employee who is exposed to asbestos brings home work clothes, members of his family are likely to be exposed as well. ). 18 Olivo, 895 A.2d at Id. at 1149; see also Anderson v. A.J. Friedman Supply Co., 3 A.3d 545, (N.J. Super. Ct. App. Div. 2010) (following Olivo). 20 Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009) (applying Kentucky law). PRODUCT SAFETY & LIABILITY REPORTER ISSN BNA

4 4 Sixth Circuit held that no duty was owed because there was no evidence that such a bystander exposure risk was foreseeable during the time of alleged negligence ( ). 21 There was no evidence that either company had actual knowledge of the specific danger to bystanders or family members, so the court focused on whether the companies should have known of the risk of bystander exposure in other words, was such a risk foreseeable to them based on common knowledge at the time and in the community. 22 Although studies existed regarding exposure of workers and neighbors to asbestos emissions from factories and mines, the first studies on family members of asbestosexposed workers were not published until Accordingly, the Sixth Circuit determined that the risk to Mr. Martin was not foreseeable. 24 A similar result was recently reached in Texas. The Texas appellate court in Alcoa v. Behringer (2007) reversed a $15.6 million jury award in favor of a homemaker who claimed she developed mesothelioma from laundering her spouse s asbestos-laden work clothes. 25 In Behringer, the court determined no duty existed on the part of the employer because the risk of danger of intermittent, non-occupational exposure to asbestos was not reasonably foreseeable at the time of the alleged negligence ( ). 26 As with Martin, the Texas court found it persuasive that the first studies on the risks of bystander exposure were not published until The defendant in Simpkins v. CSX Corporation (2010) attempted to raise the same defense. CSX presented evidence that the risk of take-home exposure was not foreseeable until 1972, when the Occupational Safety and Health Administration introduced regulations to prevent take-home exposure. The Illinois Appellate Court for the Fifth District, however, refused to consider the evidence. Because the case involved the review of a motion to dismiss, the court concluded that it could not consider those fact-specific arguments derived from affidavits or other supportive documentation. 28 As a result, the specific scientific information about when the defendant became aware of the danger to non-employees was disregarded. Notwithstanding the procedural stumbling block in Simpkins, most recently, the Illinois Appellate Court for the Fourth District in Estate of Holmes v. Pneumo Abex (June 2011) did consider specific scientific information about when the danger of household asbestos exposure became known. Applying a hybrid relationship/ foreseeability test, the Fourth District determined that even if a relationship existed between the parties, there was no legal duty at the time of the wife s exposure ( ). 29 Specifically, the Fourth District held that 21 Id. at Id. at 445 (quoting Pathways, Inc. v. Hammons, 113 S.W.3d 85, 90 (Ky. 2003)). 23 Id. 24 Id. at The Sixth Circuit applied the same analysis to both the employer and manufacturer. See id. at Aloca, Inc. v. Behringer, 235 S.W.3d 456 (Tex. Ct. App. 2007), pet. for review denied, 2008 Tex. LEXIS 1084 (Nov. 21, 2008). 26 Id. at Id. at Simpkins, 929 N.E.2d at Pneumo Abex, 2011 WL , at *4 (Ill. App. Ct. 4th Dist. June 22, 2011). plaintiff had to establish that when decedent s husband worked... it was reasonably foreseeable asbestos affixed to a worker s clothes during work would be carried home and released at levels that would cause an asbestos-related disease in a household member. 30 Because the first epidemiological study showing an association between disease and asbestos fibers brought home from the workplace was not presented and published until 1964, the court found that it was not reasonably foreseeable that a danger existed. 31 The Fourth District made clear the plaintiff must show that defendants were aware of concrete evidence of takehome exposure as opposed to the more prevalent literature involving direct exposure. 32 Pneumo Abex, Martin and Behringer signal a willingness by some courts to more closely examine historical knowledge and scientific information as to a product when applying the foreseeability test to take-home claims. 33 These courts preclude take-home liability claims from proceeding to trial in the absence of published, contemporaneous, scientific studies or other proof of industry knowledge during the relevant timeframe that intermittent, non-occupational exposure presented an actual risk to family member bystanders. In short, companies succeeded in these cases despite application of the foreseeability test because they presented extensive scientific evidence regarding a product and chemical knowledge of the time period. Although not as helpful to companies as the relationship test, these cases demonstrate that some courts are willing to look beyond the modern understanding of the harmful effect of certain toxins to focus contextually on what the company knew or should have known at the time of the alleged exposure. Take-Home Exposure Outside of Asbestos Take-home exposure claims have arisen primarily in the asbestos arena, where plaintiffs lawyers are focused on finding new pools of potential plaintiffs and defendants. This theory, however, has also begun to make its way into other toxic tort litigation. The lessons learned in asbestos may prove valuable to companies faced with such claims in other toxic tort cases. The Widera v. Ettco Wire & Cable Corporation 34 case presents an interesting example of how the take-home theory is applied in a non-asbestos case. In Widera, a wife and infant child sued, alleging that the husband s clothing was contaminated at the workplace by lead dust and other chemicals that ended up purportedly causing birth defects in the couple s child. Although not 30 Id. 31 Id. at * Id. at *5. 33 Other courts (including recent decisions), however, have held that employers, manufacturers, and premises owners have such a duty during the same historical timeframe, although each failed to consider the lack of specific scientific studies on family-member exposure. See, e.g., Condon v. Union Oil Co. of Cal., 2004 WL , at *5 (Cal. Ct. App. Aug. 31, 2004); Catania v. Anco Insulations, Inc., 2009 WL , at *2-3 (M.D. La. Nov. 17, 2009) (following Louisiana Supreme Court that held risks of take home exposure foreseeable as early as 1951 with passage of Walsh-Healey Act); Olivo v. Owens-Ill., Inc., 895 A.2d 1143, 1149 (N.J. 2006). 34 Widera v. Ettco Wire & Cable Corp., 204 A.D.2d 306 (N.Y. App. 1994) COPYRIGHT 2011 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PSLR ISSN

5 5 an asbestos case, Widera actually served as a precursor to many of the asbestos claims. The Supreme Court of New York declined to impose a duty, relying on the relationship analysis. According to the Court, an employer s duty has not been extended to encompass individuals, such as the infant plaintiff, who are neither employees nor employed at the worksite. 35 This is the same analysis that the New York courts ultimately would apply to take-home claims in the asbestos context. In a slightly different context, the Maryland Court of Appeals answered a certified question in Doe v. Pharmacia & Upjohn Company from the United States Court of Appeals for the Fourth Circuit regarding the existence of a duty between an employer and an employee s spouse. 36 In that case, the plaintiff s husband was a laboratory technician who regularly worked with two strains of the HIV virus. 37 The employer tested its employees for one strain of the virus but not the other. The plaintiff s husband became infected with the untested strain, which he passed to his wife. 38 The Maryland Court of Appeals refused to impose a duty, stating that foreseeability alone is not sufficient to establish a duty, 39 and later noted that Ms. Doe has no relationship with Pharmacia, 40 before the court expressed concerns about a foreseeability test creating an indeterminate class of potential plaintiffs. 41 Oddone v. Superior Court of Los Angeles County (2009) is a more recent example of the take-home exposure theory being applied outside the asbestos context. The plaintiff s husband worked processing motion picture film and allegedly was exposed to a multitude of chemicals at work, including formaldehyde, perchloroethylene, trichloroethylene, and acetone. As with asbestos, the wife alleged that her husband brought these chemicals home on his clothes. Although the court found that the wife did not make sufficient allegations to state a take-home cause of action, it explicitly held open the possibility that a take-home theory could survive in California if the right allegations were pleaded. 42 There are two possible readings of Oddone. The first is that the court grafted a relationship element onto the foreseeability analysis requiring plaintiffs to show a close connection between the company s conduct and the injury before the court will engage in the foreseeability analysis. The second is that the close connection test is simply a pleading requirement requiring plaintiffs to allege specific enough facts so that the court can engage in the foreseeability analysis. It is unclear at this point how the case will be interpreted by other courts Widera, 204 A.D.2d at Doe v. Pharmacia & Upjohn Co., 879 A.2d 1088 (Md. 2005). 37 Id. at Id. at Id. at Id. at Id. at Oddone v. Superior Court of Los Angeles County, 101 Cal. Rptr. 3d 867, 873 (Cal. App. 2d Dist. 2009). 43 The plaintiff not only failed to specify which chemical injured her, but also failed to identify her injury. Given that there is no indication which specific chemicals cause which specified injuries, one cannot even ask the question whether These non-asbestos take-home exposure claims present both striking similarities and subtle differences that must be taken into account. The primary parallel is that the central issue will continue to be whether a duty existed. And, as such, the cases likely will continue to divide along the lines of relationship versus foreseeability. The relationship analysis should not change regardless of the chemical involved. The central question is whether there is a legally sufficient relationship between the company and the plaintiff to impose a duty of care. Typically, the relationship at issue will be employer/employee, premises owner/invitee, or manufacturer/user. The chemical or substance involved is less relevant. Widera is a good example of this. Nothing in the analysis changed despite the case involving lead dust rather than asbestos. Thus, it is likely that take-home exposure cases in jurisdictions applying the relationship analysis will continue to be decided in favor of the defendant, regardless of the chemical involved. The foreseeability analysis, on the other hand, should change depending on the particular facts of the case, including the chemical or substance involved. As discussed above, recent foreseeability decisions show a possible pull-back from previous legal rulings, now finding that secondary exposure is not foreseeable absent historically available, scientific studies or other evidence of industry knowledge to the contrary. Pneumo Abex, Martin and Behringer all depended on the timing of scientific studies regarding the dangers of secondary exposure to family members. Those cases teach that if a company is in a jurisdiction that utilizes the foreseeability test, it is critical for it to present scientific evidence as to when it should have known about any alleged harm. The existence of specific epidemiological studies on bystander exposure can provide evidence of industry s knowledge. And, like Pneumo Abex, Martin and Behringer, the absence of relevant scientific studies may lead courts to find that the risk of harm was not foreseeable in the particular case. In addition to the duty analysis that is central for asbestos cases, for cases involving other toxins, this scientific evidence is also relevant on the issue of causation. Accordingly, a company defending such claims must make sure to examine the timing of the relevant scientific research vis-à-vis the alleged injury. Conclusion Despite the largely asbestos-centric nature of these claims to date, the theory behind take-home exposure claims is not limited to asbestos, and recent cases bear that out. Companies involved in toxic tort litigation need to be aware of these claims and understand how courts handle them in order to properly evaluate the company s risks. Although much of the analysis may carry over verbatim into other contexts, some of the factual issues that have driven the results in the asbestos cases will not necessarily apply to other toxins. One example of this is the issue of causation. Given the nature of asbestosis and mesothelioma, causation is often not as central an issue in asbestos cases. For toxins other the harm to the plaintiff was foreseeable; for one, we do not know what the harm is or was. Id. PRODUCT SAFETY & LIABILITY REPORTER ISSN BNA

6 6 than asbestos, the causation analysis becomes much more important. This will present both opportunities and hurdles for companies defending these claims. That means, however, that a company facing such a claim must look at the asbestos cases carefully to understand the similarities and differences, paying particular attention to the timing of scientific studies and the causal link at issue. It is crucial for companies to take the time to understand exactly when, and precisely what, scientific information was available on the toxin at issue during the relevant time period. In nonasbestos cases, this information can be critical both for the duty analysis as well as causation. Whether any harm that resulted from a toxin was foreseeable depends heavily on what was known about the toxin at the time of the exposure, and the recent decisions have shown that some courts are open to this argument. To make this argument successfully, however, companies must be able to present evidence of the knowledge and scientific information or lack thereof available at the time of the alleged exposure COPYRIGHT 2011 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PSLR ISSN