Robreno denies 'take-home exposure' claim in asbestos suit

By Jim Boyle | Sep 3, 2014

A federal judge at the U.S. District Court for the Eastern District of Pennsylvania has

dismissed a plaintiff's claim that handling and laundering her husband's allegedly asbestos-laden clothing was one of the factors that caused her to contract mesothelioma, saying that her husband's employer did not have a duty to be held responsible for a spouse's exposure to the material.

Marilyn Gillen's claim that her illness was also contracted from her years as a secretary at the Boeing Vertol facility in Ridley Park, Pa., where her husband, Hugh, also worked, still stands.

The ruling, authored by U.S. District Judge Eduardo Robreno, only dealt with Gillen's claim of take-home exposure from her husband, saying that Boeing failed to protect her from asbestos by warning Gillen of potential hazards by handling his clothing and providing on-site facilities for her husband to clean his clothing before returning home.

Since no definitive law or rule exists establishing an employer's duty to an employee's spouse, Robreno had to consider past rulings and precedents to inform his opinion and predict how the State Supreme Court would handle the case.

Using the Supreme Court's ruling in the 2000 case Althaus v. Cohen, Robreno considered five factors for his decision:

  • The relationship between the parties

  • The social utility of the actor's conduct

  • The nature of the risk imposed and foreseeability of the harm incurred

  • The consequences of imposing a duty upon the actor

  • The overall public interest in the proposed solution

Robreno wrote that the narrow focus of Gillen's tort relies on the asbestos she had been exposed to at home; any contact she had with the material as an employee is irrelevant. Under that light, Gillen and Boeing's relationship was basically as legal strangers because all of the take-home exposure occurred off-site.

The social utility consideration also did not play a factor into the ruling, Robreno wrote, because Boeing provided a legal service to its employees and customers and did not engage in any unlawful activities. As awareness of the dangers of asbestos grew in the 1970s, Boeing worked to abate the substance at its facilities.

Pennsylvania does not hold a foreseeability of risk in hindsight standard when deciding a defendant's duty, Robreno wrote. Rather, the risks must be predictable in the first instance.

"Therefore, it is not enough to claim that Boeing knew, at the time, that Plaintiff's husband was exposed to asbestos while working there," Robreno says. "Rather, Plaintiff must allege that Boeing knew, or should have known, that if Mr. Gillen took home his work clothing, Mrs. Gillen would be exposed to friable asbestos while washing his work clothing at home."

Gillen made no such allegation, according to the court opinion. Even if she had, Robreno wrote that would not have been the sole factor in determining Boeing's duty. Doing so would be akin to blaming a physician for not notifying the Pennsylvania Department of Transportation that one of his patient's had vision problems if that patient had caused a car accident. Such a practice would result in endless liability, Robreno held.

The possibility of endless liabilty also weighed against the plaintiff in Robreno's determination. If Gillen had been permitted to continue her claim, other third parties who came into contact with her husband could submit their own complaints, such as babysitters, neighbors, children and dry cleaners.

Finally, in determining the overall public interest for the solution, Robreno analyzed numerous rulings by common pleas courts throughout Pennsylvania and consistently found that the lower courts ruled against plaintiffs claiming spouse's employers owed a duty to household members. He could not find any potential public harm in reversing this trend.

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