MEMORANDUM. Preface. Brief Answer

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1 MEMORANDUM From: Mitchell S. Cohen, Esquire Re: Decisions Governing the Issue of Secondary Exposure Asbestos Cases in the Commonwealth of Pennsylvania and States of New Jersey and New York Date: 11 November 2012 Preface It must be understood that the law controlling this area of the law is not that of federal or national jurisdiction. It constitutes what is called the substantive law of the individual state in which the court sits. Accordingly, the law set forth here DOES NOT apply to any states other than those specifically discussed herein. Since we have 50 states in the United States, it is conceivable that there could be 50 different opinions of the courts sitting in each of the states regarding this particular issue. In reality, this would either be broken down into three separate categories: (1) states that have never issued a ruling on this specific point of law; (2) states which have found there is a liability on the part of an employer or (3) those states in which the courts have found there is no liability on the part of the employer. In order to obtain an accurate view of this legal issue, on a national basis, independent research would have to be conducted regarding everyone of the individual states in which the injured plaintiff resides or passed away. For purposes of this presentation, I have chosen to limit my comments to those states most immediately near where my primary offices are located. Issue Presented for Consideration Pursuant to decisions of the courts in the states of New Jersey, New York, and Pennsylvania, does an employer have a common law duty to protect a nonemployee spouse or other relative, who reside in the same home as the worker, from asbestos exposure outside the workplace? Conversely, can the employer be held liable for breaching that duty as to someone who is not an employee? Brief Answer Generally, the courts considering this issue have initially looked to the relationship between the plaintiff in such cases (usually the wife of the employee)

2 and the defendant. Of critical importance is how foreseeable the risk of asbestos exposure to the plaintiff-wife was under the totality of circumstances. The courts below have then also looked to public policy arguments in determining whether upholding the recognition of a duty of care, in take home secondary exposure cases, under all of the facts and circumstances of each case, upholds general notions of fairness and justice. Findings Summarized In summary, the New Jersey Supreme Court (the highest court of appeals in the State of New Jersey) has ruled an employer can be found liable to a nonemployee spouse for second-hand exposure to asbestos. However, the Court of Appeals in New York, (highest court of appeals in that state), declined to find liability on the part of an employer for a non-employee spouse's secondary exposure to asbestos in its most recent case dispositive on the issue, the issue appears highly factual in nature. At first review, it appears like the two states have ruled the opposite way on the same legal issue. From my reading of the case and consideration of the language used by the Court of Appeals in New York, I believe a completely different result might well be reached where, unlike the case then under consideration before the New York court, an employer did not not put measures in place to prevent secondary exposure. (In the case before the New York court, the husband's employer did provide laundry facilities to wash clothes outside the home. The employee chose not to use them and took the clothes home to have his wife wash them). However, had the employer not done so, I believe the court may have ruled the same way as the court in the State of New Jersey. Thus far, the Pennsylvania Supreme Court has not ruled on the issue of employer liability for secondary exposure. However, lower trial courts in Pennsylvania have extended liability to an employer if the employer knew or should have known of the danger of secondary exposure to non-employee spouses or relatives. The New Jersey Decision The New Jersey Supreme Court has ruled on this issue and found that an employer can be liable for an individual's second-hand exposure to asbestos. Olivia v. Owens-Illinois, Inc. 186 N.J. 394 (2006). In this case, plaintiff Anthony Olivio filed a wrongful-death suit against his employer, Exxon Mobil, for the death of his wife, Eleanor, who had regularly washed Anthony's work clothing and subsequently died from malignant mesothelioma.

3 The New Jersey Supreme Court began its analysis by considering whether the employer owed a duty of care to the worker's spouse. To make this determination, the court focused on the foreseeability of the risk to the employee's spouse. The court held that the defendant employer "should have foreseen that whoever performed [the task of washing the employee's clothes] would come into contact with the asbestos that infiltrated his clothing while he performed his contracted tasks." Id. at 405. Thus, Exxon Mobil was found to have owed a duty to plaintiffs spouse because of her handling and washing the unprotected work clothing he brought home each day. The court found the dangers of exposure from handling asbestos borne dust in the home on contaminated clothing were foreseeable. Exxon Mobil breached its duty, as it failed to warn its employees of the risks associated with returning home in contaminated clothing and failed to take the appropriate precautions to prevent such exposure by the wife. The New Jersey Supreme Court also weighed various factors to consider whether imposing such a duty is fair and just. The court rejected the public policy argument that recognizing such a duty of care would create limitless liability for employers. The court stated the duty recognized hinges specifically on the foreseeability of the harm to the worker's wife; highlighting that it is foreseeable for a wife to launder her husband's clothes as an ordinary household chore. The New Jersey Supreme Court also considered this question 1993, in a case distinguishable from Olivia. In Theer v. Philip Carey Co., 133 N.J 610 (1993), an asbestos worker's wife was also exposed indirectly though laundering her husband's clothes. However, unlike plaintiffs decedent in Olivia, supra, the trial jury specifically found that she did not suffer from any asbestos-related disease or condition. In this case, the New Jersey Supreme Court did not have to specifically make a ruling on the issue, because a jury had already ruled the wife did not suffer any asbestos disease and thus there could be no damages awarded. Since she had a high risk of cancer as a heavy smoker and did not directly work with asbestos, she was held not to be entitled to receive damages for medical monitoring related to possible future asbestos diseases she might contract. (This is a special category of damages that are different than those meant to compensate the person for harm already suffered). The New York Decision Although the Court of Appeals in New York, (highest court of state appeals jurisdiction), declined to find employer responsible for a non-employee spouse's secondary exposure to asbestos, the court did not state that an employer would never owe such a duty. It made a very narrow ruling on this legal issue based on the

4 unusual without facts of the case before the court and limited its ruling only to the fact, stating the ruling would apply if the facts had been different. In Holdamp]v. A.c.&s., Inc. (In re New York Abestos Litigation), S N.y'3d 486 (200S), plaintiffs husband had been exposed to asbestos as an employee of defendant Port Authority of New York and New Jersey for thirty years. Although the Port Authority provided laundry services to its employees, plaintiffs husband chose not to use them. Instead, the employee-husband intentionally chose to bring his work clothes home so that his wife could routinely wash them. Unfortunately, the husband's wife was subsequently diagnosed with mesothelioma. The Holdampf, supra, court held that the Port Authority was not liable to plaintiff under the specific facts of the case before it.. The court considered the employer's relationship to the non-employee's wife and reasoned that the employer was not in a position to protect the wife from risk of harm, because the husband-employee chose not take advantage of the risk reduction measures provided by the employer and use the laundry facilities at the jobsite. Her level of risk of developing asbestos disease was entirely dependent upon her husband's willingness to comply with and carry out such risk reduction measures as using the Port Authority's laundry services. This would have avoided his having to bring home asbestos dust on his work clothes or exposing his wife to its dangers. The court stated that the key consideration in determining whether a duty exists is whether "the defendant's relationship with either the... plaintiff places the defendant in the best position to protect against the risk of harm" and that "the specter of limitless liability is not present.... " Id. at 498. In its analysis of a prior case called Hamilton, regarding liability of an employer, the court noted "Hamilton emphasizes reluctance to extend liability to a defendant for failure to control the conduct of others." Id. at 493. Furthermore, in distinguishing its decision from the New Jersey Supreme Court decision in Olivio, supra, the court provided the following reasoning: Moreover, Olivo can be distinguished factually in that the landowner did nothing to prevent workers from bringing asbestos-covered clothing into the family home-van important component of that court's duty analysis=whereas here, the Port Authority provided laundry services to John Holdarnpf which is relevant under New York law as

5 to whether the Port Authority breached any duty that it may have owed Elizabeth Holdampf. Id. at As the above quoted language demonstrates, the New York court seemed to rely heavily on the fact that the Port Authority had taken necessary precautions to prevent secondary exposure to asbestos and the success of such precautions were solely dependant on the plaintiff employee. Thus, as the court declined to find a duty on the part of the employer beyond the precautions the employer had already taken, it is unclear whether the court may find such a duty to exist on the part of an employer who did not have such precautions in place. The Pennsylvania Decisions The Pennsylvania Supreme Court has not ruled on whether a duty applies in take home asbestos exposure cases. However, two lower trial court decisions have ruled on the issue; one recognizing a duty on the part of the employer and one declining to find such a duty. Furthermore, the Delaware Superior Court has considered whether the Pennsylvania Supreme Court would find such a duty in applying Pennsylvania law to an asbestos take home exposure case. In reviewing the Pennsylvania lower court opinions, it seems that if the defendant employer knew or should have known of the danger to plaintiff, a duty will apply in take home asbestos exposure cases. In Hudson v. Bethlehem Steel Corp., 1995 WL CPa. CP, 1995), plaintiff filed a claim for the wrongful death of his wife, who had been exposed to asbestos dust when she washed the clothes worn by her father when he worked at the defendant steel company. The court held that the defendant did not owe a duty to plaintiffs wife to warn the decedent of the dangers associated with the use of asbestos at the defendant's plant, nor did the defendant have a duty to take precautions to limit exposure of asbestos fibers to the decedent. In making this determination, the court reasoned that there was no evidence that the defendant could have reasonably foreseen that the decedent would be affected by the asbestos-containing products because no evidence showed the defendant knew or should have known ofthe hazards associated with asbestos products extended to recipients such as the worker's daughter. Again, the facts of the case were probably very relevant here. If the plaintiff did not put on any medical or scientific evidence showing the "state of the medical and scientific art" was such that the employer either knew or reasonably should 1The New York decision shows clearly that the court was very well aware of the decision of the highest court of a sister-state and specifically wanted to explain why it was making a ruling that reached a different result. I do believe that if the court had the identical facts in front of it as the New Jersey Supreme Court did, it probably would have ruled the same way as the New Jersey Supreme Court ruled.

6 have known of the dangers of asbestos dustto anyone exposed, the decision was proper. (I am attempting to get this opinion for review). However, despite the fact that lung cancer was established as being associated with asbestos exposure as far back as the 1930's, mesothelioma/endothelioma listed as appearing in association with asbestos exposure as far back as the 1940's-1950's, colo-rectal and other cancers being associated with asbestos exposure in the 1960's, it does not appear this type of evidence was ever presented to the court by the Plaintiffs attorney. However, in Siemon v. A.G. Smith Corp., a Pennsylvania trial court held that such a duty did exist because the employer knew or should have known of the hazards associated with asbestos exposure and that such exposure posed a danger to plaintiff, thereby distinguishing the case from Hudson. Oct. 19,2006 slip op. (C.P. Alleg. Co. No. GD ) (Order). The Delaware Superior Court (Delaware is a state which borders both Pennsylvania and New Jersey) considered whether the Pennsylvania Supreme Court would recognize that employers owe a duty of care in take home asbestos exposure cases. In re Asbestos Litigation, 2012 WL (Sup. Ct. Del. 2012). The Delaware court held that the Pennsylvania Supreme Court would not find such a duty, reasoning that the relationship between the plaintiff and the defendant is not a "legally significant relationship" to which a duty would attach, a foreseeability analysis weighs against the finding of applying such a duty and such public policy reasons as the lack of social utility in finding such a duty and the potential consequence of imposing limitless liability in finding such a duty. This prediction by the Delaware court has no authority and is not controlling on the Pennsylvania, New York or New Jersey courts in anyway. Furthermore, the opinion of the court must be viewed by also recognizing that most major American corporations in the United States, who are all employers and thus potential defendants in civil cases that might be brought for such kinds of exposures, are registered to do business as corporations in the State of Delaware. This provides the State with tremendous revenues they may feel is in need of protection by rendering opinions favoring corporate employers. Lastly, it should also be pointed out that this case has not been published in the legal journals of general circulation in the u.s. and so I believe its value is lessened even more. After I reviewed the major case relied upon by the lower Delaware trial court in reaching its prediction,jesensky v. A-Best Products, Co., c.a. No (W.D.Pa. Oct. 29,2003), affd, 2004 WL , *2 (W.D.Pa.2004), my opinion regarding the Delaware court is made even stronger. This decision is nothing more than the federal district judge inpennsylvania adopting the recommendations of a lower judicial magistrate. However, the decision

7 of the federal judge does nothing to support the belief that Pennsylvania would not find employers liable to the person secondarily exposed to asbestos in a case with the proper facts. In fact, the decision actually supports the theory that Pennsylvania would support the theory. In the case, the judge did dismiss companies that could not be shown to have exposed the worker to asbestos dust. However, the judge actually reversed the opinion of the lower judicial magistrate and required the one company whom the employer could prove exposed to his clothes to asbestos to remain in the case.

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