Proximate cause is an element of all tort cases. In asbestos cases, a recent decision by the U.S. Sixth Circuit has favorable implications for the issues of causation and take-home exposure. See Martin v Cincinnati Gas & Elec.Co., No. 07-6485, 2009 U.S. App. LEXIS 1702 (6th Cir. Jan. 27, 2009). In that case, the plaintiff’s father had worked with underground power lines that contained asbestos during a period from 1951 to 1963. The plaintiff, who was born in 1952, claimed exposure to asbestos carried home on work clothes his father wore home, as well as from the plaintiff’s own exposure as a welder and mechanic from 1979 to 1984. The district court, applying Kentucky law, granted summary judgment to GM for lack of substantial factor causation when the plaintiff was a mechanic, and to CG&E and GE, the father’s employer and supplier, for a lack of duty to the plaintiff for the take-home exposure.
As to causation, the court noted that Kentucky law requires that asbestos exposure from a defendant’s product be a substantial factor in causing the injury. The plaintiff argued that, “because mesothelioma is a progressive disease, any exposure is a substantial cause.” The Sixth Circuit rejected this argument, which has worked in many jurisdictions. The court noted, “[y]et one measure of whether an action is a substantial factor is ‘the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 433(a)). Also noting its earlier decision, Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 493 (6th Cir. 2005), the court observed that to hold “any exposure is a substantial cause” would render the substantial factor test “meaningless.” Summary judgment thus was upheld on the issue of causation.
As to take-home liability, whether CG&E and GE owed the plaintiff a duty of care under Kentucky law turned on foreseeability in light of what the defendants knew or should have known at the relevant times. Specifically, the plaintiff had to show that each defendant “knew or should have known the danger of bystander asbestos exposure” when it provided asbestos-containing products to the defendant’s father. In cases like this, plaintiffs’ experts rely upon published scientific papers to show that the hazards of asbestos were knowable years before the exposure in a given case, thereby making the danger foreseeable.
The Sixth Circuit, however, framed the issue under Kentucky law more precisely, finding that Kentucky law imposes upon the defendant a duty to have “knowledge of pertinent matters . . . as a reasonable man would have.” Id. (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 90 (Ky. 2003) (quoting RESTATEMENT (SECOND) OF TORTS § 289(a))). This knowledge includes the “capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 289(a)). 1
The plaintiff had no evidence that CG&E or GE had actual knowledge of the danger of take-home exposure during the relevant time periods – 1937 to 1955 when GE supplied asbestos products, 1951 to 1963 when CG&E employed plaintiff’s father. The plaintiff instead tried to prove constructive knowledge through published reports and studies. A 1911 study and subsequent ones in the 1930s only were concerned with neighbors of asbestos factories. Plaintiff’s expert also opined that there was knowledge of the hazard in the 1950s, but he conceded “that the first studies of bystander exposure were not published until 1965.” The court concluded that “[w]ithout any published studies or any evidence of industry knowledge of bystander exposure, there is nothing that would justify charging CG&E or GE with such knowledge during the time that Mr. Martin’s father was working with asbestos.”
Beyond the general fact that the Sixth Circuit upheld summary judgment on the issues of causation and take-home exposure, the decision is important to all jurisdictions. It suggests defendants would be well advised to use well-established tort concepts in conjunction with a careful reading of the Restatement in order to bring common sense back into the courtroom. That approach here lead to an outright rejection of de minimis asbestos exposure as adequate evidence of causation. It also resulted in premises and supplier defendants being relieved of liability to bystanders when there was a complete lack of evidence that a reasonable person would have recognized that harm to bystanders was foreseeable at the time when the exposure occurred.
The outcome reached in Martin was aided by the amicus brief of Mark Behrens, partner at Shook, Hardy & Bacon, on behalf of the Coalition for Litigation Justice and other interested parties. The brief focused on the take-home exposure side of the case, but Mr. Behrens also has contributed to the body of arguments against de minimis exposure, namely an article he recently coauthored with William Anderson – The "Any Exposure" Theory An Unsound Basis for Asbestos Causation and Expert Testimony, 37 S.U. L. REV. 479 (2008). It finally should be noted that the Martin decision is unpublished but citation is permitted as long as the decision is attached to the brief. See FRAP 32.1; 6 Cir. R. 28(f).