Who can file a lawsuit against the manufacturers and distributors of asbestos- containing products for a disease, like mesothelioma, caused by exposure to asbestos dust? Is it only the workers who handled the products directly? Or can the wife of an exposed worker who breathed in the dust from her husband’s work clothes also bring a lawsuit when she, too, develops mesothelioma? This was the question answered earlier this year by a distinguished retired New York State Supreme Court Justice sitting as a Judicial Hearing Officer supervising the asbestos docket in Western New York.

Our client was married to a career construction worker employed by a plastering contractor which distributed and applied a variety of asbestos- containing products, including products sprayed on ceilings for soundproofing. Our client’s husband was also employed by an asbestos insulation contractor performing work at a large oil refinery where lengths of asbestos pipe covering were cut, manipulated and applied to hot pipes, giving rise to large amounts of visible dust.

Our client routinely laundered the dust-laden work clothes brought home by her husband. Neither our client nor her husband knew of the dangers of exposure to the deadly dust. Eventually, our client’s husband died of asbestosis and cancer. Years later, our client was herself diagnosed with malignant mesothelioma. She hired us to file suit against her husband’s former employers for damages.

The companies that were sued protested that they could not legally be held responsible for our client’s injuries because she never handled the products they sold and distributed to the various work sites where her husband worked. Incredibly, the defendants also argued that, even if they could have foreseen the eventual injury to our client, they still should not be held responsible, and that no New York court had ever squarely decided this issue in favor of a plaintiff in a household exposure case. The defendants were right about one thing: no court in New York had ever reached the conclusion that the distributor of a toxic product was potentially liable to pay legal damages to a family member injured by dust brought home on a worker’s clothing, at least, not until now.

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On April 18, 2008 the Court ruled in favor of the plaintiff. In reaching its decision, the Court considered the affidavit of an industrial hygienist who detailed the history of the dangers of asbestos exposure, what was known and when it was known. In the opinion of the expert, those involved in the marketing of asbestos products should have been aware of the risk of serious disease posed to household members by exposure to contaminated clothing at some point between 1956 and 1960.

In rejecting the defendants’ argument that the plaintiff had no right to relief from her husband’s past employers, the Court eloquently wrote about justice and the rights of innocent bystanders. The Court stated that:

“The ultimate purpose of the strict products liability cause of action is to cast the burden on the manufacturer who put the product in the marketplace and on those who facilitate the distribution and eventual use of a defective or dangerous product. To deny a right to relief to persons injured by a defective or dangerous product solely on the ground that they were not themselves its users would be neither reasonable nor just. To restrict recovery only to those who are users of asbestos products is unrealistic in view of the fact that innocent bystanders such as the plaintiff have less opportunity to learn of the danger where the product carries no warning. As a matter of policy mandated by both justice and common sense, the plaintiff should be entitled to pursue her strict products liability cause of action…”

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