Plaintiffs’ Bar Continues to Find Creative Ways to Stretch the Boundaries of Claims in Asbestos Actions

As previously reported by Product Liability Playbook, the plaintiffs’ bar continues to seek to expand the scope of liability in asbestos cases beyond injured individuals who directly worked with asbestos-containing products. The past year has seen an increase in “bystander” and “take home” exposure cases in which the injured party may have worked in the vicinity of others working with asbestos-containing materials or, in take-home cases, come into contact with the work clothes of individuals directly working with asbestos-containing products.

As time goes on, the defense bar can expect, and should be prepared to defend, more claims by the plaintiffs’ bar of injured individuals with greater separation from those working directly with asbestos products. An example of this is a recent case out of the U.S. District Court for the Eastern District of Louisiana, Landry v. Columbia Cas. Co., 2015 U.S. Dist. LEXIS 66591 (E.D. La. May 21, 2015).

In this case, the decedent’s surviving wife and children commenced an action based on the decedent’s alleged exposure to asbestos during his work in the Avondale shipyard. One of plaintiffs’ more creative claims was that they were entitled to bystander damages pursuant to Louisiana Civil Code Article 2315.6 for their mental anguish from watching the progression of the decedent’s mesothelioma disease.

Defendant, Huntington Ingalls Inc. (“HII”) moved for partial summary judgment to dismiss that claim, arguing that plaintiffs failed to meet all four requirements necessary for such a claim, which are “(1) The claimant must either view the accident or injury-causing event or come upon the scene soon after it has occurred and before substantial change in the victim’s condition; (2) The direct victim of the traumatic injury must have suffered such harm that it can reasonably be expected that someone in the claimant’s position would suffer serious mental anguish from the experience; (3) The claimant’s emotional distress must be both reasonably foreseeable and serious; and (4) The claimant must have a sufficiently close relationship to the direct victim.”

It was HII’s argument that the plaintiffs failed to satisfy the first requirement since they did not witness the injury-causing event, decedent’s exposure to asbestos, as it occurred. The court agreed with HII in holding that “Louisiana Civil Code Article 2315.6 contemplates an ‘immediate shock’ and harm that is immediately ‘severe and apparent.’ It is not intended to compensate claimants who observe the progression of a disease many years later. Plaintiffs did not observe Mr. Landry inhale asbestos and the suffering they observed occurred more than sixty years after Mr. Landry’s employment at Avondale.”

The court went on to state that even if plaintiffs had observed decedent’s exposure to asbestos, they would still not be entitled to damages under this code because “exposure to asbestos is not a traumatic event likely to cause severe contemporaneous mental anguish to an observer, even though the ultimate consequence, mesothelioma, is tragic. Although plaintiffs suffered anguish and distress as Mr. Landry’s mesothelioma progressed, their mental anguish is temporally disconnected from the injury-causing event and beyond the intent of Louisiana Civil Code Article 2315.6.”

As the above case illustrates, the plaintiffs’ bar continues to push the envelope in claims for asbestos cases. The defense bar needs to continue to be on guard for such claims and defend them to the fullest, as HII did. If such claims go unchallenged, the door will be opened for many more claims for individuals further removed from the party that had direct exposure to any asbestos-containing product.

 

Tags: , , ,

0 Comments

Be the first to leave a reply!

Leave a Comment