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Illinois Supreme Court upholds claim of bystander asbestos exposure

In the latest ruling on controversial “bystander” asbestos-exposure cases, the Illinois Supreme Court says that the estate of a woman who died of mesothelioma can sue her husband’s former employer for failing to warn the family about the dangers of asbestos brought home on his work clothes.


Annette Simpkins sued CSX Transportation in 2006. Although she never worked for the company, she claimed she developed mesothelioma from washing the clothes of her husband, Ronald, who worked for CSX (then known as B&O Railroad) from 1958 to 1964.


Annette Simpkins died in 2007, shortly before the trial judge dismissed the case, saying CSX did not owe her a “direct duty of care.” The Fifth District Appellate Court overturned that ruling, citing two cases — one in Tennessee, another in New Jersey — in which those state Supreme Courts ruled that a direct relationship does not need to exist in order for a company to be held liable for injuries to a person resulting from secondhand asbestos exposure.


"To find that an employer whose workers are exposed to asbestos owes no duty to protect others from exposure — assuming the exposure is both foreseeable and preventable without undue burden — merely because the others do not have any particular special relationship with the employer….would defy logic and lead to grossly unfair results," wrote Illinois Justice Melissa A. Chapman for the majority in the 4-2 ruling.


To determine whether CSX owed a duty to Simpkins, the court considered whether the company could foresee harm to Annette Simpkins as well as whether the company’s responsibility to protect her was an undue burden.


Chapman’s decision noted that, given the well-known dangers of asbestos exposure, harm to Simpkins’ family was “reasonably” foreseeable. “It takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well,” she wrote.


Likewise, the majority’s decision said CSX could have warned or better trained Ronald Simpkins or taken other measures to reduce the risk of harm to his family. “The burden of guarding against take-home asbestos exposure is not unduly burdensome when compared to the nature of the risk to be protected against,” Chapman wrote.


The Illinois ruling, which sends the Simpkins case back to the trial court for arguments before a jury, could bolster the chances of future claimants and plaintiffs in other bystander exposure litigation around the country.


According to briefs filed in the Illinois case, 15 other states have taken up the question of whether employers have a duty of care to spouses and children of workers who brought asbestos fibers home on work clothes.


In ten states — Delaware, Georgia, Iowa, Kentucky, Maryland, Michigan, Ohio, Oklahoma, New — courts have sided with the employer. In the Delaware case, the state Supreme Court said spouses who claim injury from second-hand asbestos exposure must make a case for actual wrongdoing by the employer, rather than a mere failure to act.


Illinois now joins five states — California, Louisiana, New Jersey, Tennessee, and Washington — in which employers can be held liable for off-site exposure.


In April 2011, the New Jersey Supreme Court declined to hear an appeal by Exxon Mobile, which sought to overturn a $7 million judgment awarded to a woman who was exposed to asbestos while handling her husband’s contaminated clothing.