Backgrounder: How Secondary Asbestos Exposure Devastates Families

BACKGROUNDER: HOW SECONDARY ASBESTOS EXPOSURE DEVASTATES FAMILIES

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Introduction

Like many homemakers of her generation, Barbara Boynton took care of household duties while her husband, Larry, worked outside the home. In the 1960s and 1970s, Larry was a laborer and electrician in Utah.[1] His clothes were routinely covered with asbestos dust when he departed from work, leaving asbestos in the Boyntons’ car and then in the house he shared with Barbara. Larry was never warned about the dangers of asbestos or given options that would have allowed him to change clothes before driving home.[2] When Barbara washed Larry’s clothes, she would first shake out the asbestos dust. Then she would sweep it out of the laundry room. In other words, over the years, “Barbara was exposed to asbestos dust in ‘great quantities.’”[3]On February 4, 2016, Barbara was diagnosed with malignant mesothelioma —a painful,suffocating and fatal lung disease caused by asbestos exposure.[4] Just over three weeks later, she was dead.[5]

Corporate lobby groups seem to enjoy ridiculing cases brought on behalf of asbestos victims like Barbara Boyton.[6] But the courts aren’t laughing. When Larry filed suit over Barbara’s death, the Utah Supreme Court found that “by the time Boynton was working at the two companies’ job sites, it was common knowledge that asbestos was dangerous and that the spouses of workers could be exposed.”[7]The court found that the companies could have taken steps to prevent exposure to spouses and family members, such as having a laundry service clean Larry’s and other workers’ clothes before they went home, but didn’t.[8]And as the Delaware Supreme Court has pointed out, employers — not their workers — are best “positioned to prevent dangerous at-home laundering altogether by requiring that employees’ clothes stay on-site and be cleaned under conditions controlled for safety by the employer.”[9]

Barbara Boyton was the victim of secondary asbestos exposure — also described by terms like “para-occupational exposure,” “household asbestos exposure,” “domestic asbestos exposure,” “secondhand asbestos exposure,” “take-home asbestos exposure” and “indirect asbestos exposure.” In the world of asbestos disease, this is a relatively growing problem. Overall, approximately 3,000 new cases of mesothelioma still develop every year in the United States.[10] Of this number, “[t]he proportion of mesothelioma cases due to take-home of asbestos fibers from industrial and construction sites has risen as other sources of exposure have fallen.”[11]

Overview: Secondary Asbestos Exposure

Secondary asbestos exposure occurs when individuals who don’t work directly with asbestos are nevertheless exposed to asbestos fibers carried into their home on the hair, skin and/or clothing of someone who works with or around asbestos. These toxic fibers, which stick to fabrics and surfaces, can permeate the home environment, remaining for years and becoming airborne every time they’re disturbed, resulting in repeated transfer to and inhalation by unaware household members.

Laundering contaminated clothes is “[t]he most common activity attributed to para-occupational exposure.”[12] Shaking out or washing clothes causes asbestos fibers to become airborne and also adulterates other clothes in the machine. Furniture and close physical contact also pose life-threatening dangers, such as when a worker wearing asbestos-contaminated clothing sits on their family room couch, embedding fibers in the upholstery, or hugs a loved one right when they walk through the front door with fibers still attached to their skin. “Although laundering is often the focus of para-occupational exposures, other activities such as cleaning will disturb dust containing asbestos that was transported by the worker to the home. …The worker’s vehicle also serves as a route of para-occupational to household members and others.”[13]

It is well established that for decades, asbestos companies and the insurance industry actively conspired to suppress knowledge about the hazards of asbestos in the workplace.[14] But in addition, “[b]y the 1970s, environmental health experts began noticing unusual cases of heavy metal poisonings and malignant mesotheliomas in the family members of industrial workers that had been exposed to lead dust or asbestos.”[15] In fact, “marriage to an asbestos-exposed worker was shown to be the single greatest risk factor in the development of mesothelioma apart from personal exposure at work. Radiological studies confirmed that family members within these households developed significantly impairmented lung function compared to controls from the same communities.”[16]

Morever, examining “the level of the worker and effected family members within a socioeconomic context —accounting for variation in parties on both end of the take-home pathway” helps account for “the distinct nature of who is most frequently affected by take-home exposures apart from other exposures that arise in the workplace—i.e. women and children in working-class or low-income families.”[17]

Gender and Age Risks of Secondary Asbestos Exposure

Historically speaking, men have been more likely to work in professions where they are directly exposed to high levels of asbestos.[18] These include jobs like shipbuilding and building renovation and demolition, as well as “automotive, factory and railway workers, insulation manufacturers and installers, firefighters, plumbers and miners.”[19] Even as of 2021, women accounted for only 15.9 percent of ship and boat building workers.[20] As of August 2022, only “14% of all construction workers were women.”[21] And as far as mining, “recent estimates suggest that only 10%-17% (roughly 30,000 – 51,000) of miners are women.”[22] So when women die of asbestos disease, it is far more likely to be the result of secondhand exposure.

During 1999–2020, 12,227 malignant mesothelioma deaths occurred among women age 25 or older in the United States. Moreover, the annual number of malignant mesothelioma deaths occurring among women increased by 25 percent from 1999 through 2020.[23] Malignant mesothelioma “can take 20 to 60 years or more”[24] to develop, and victims “typically die within 1 year from diagnosis.”[25]Secondary asbestos exposure for women “results in similarly severe diseases as those that impact men, although studies have shown latency periods have typically been longer in female patients.”[26] Over 90 percent of the mesothelioma deaths occurring among women during 1999-2020 involved women age 55 or older.[27] In one study, “lung tissue asbestos burden among para-occupationally exposed women with mesothelioma was in a similar range to the fiber burden among mesothelioma cases among men with moderate occupational exposure such as construction.”[28]

The problem of secondary asbestos deaths is reflected in different types of statistical data, including the “geographic distribution of the highest mesothelioma death rates among women in states with a shipyard industry (e.g., Louisiana, Maine, Minnesota, Oregon, Washington, and Wisconsin) or past asbestos exposure associated with mining and processing vermiculite contaminated with asbestos (e.g., Montana).”[29] And in a recent CDC study that examined occupational data for women who have died from mesothelioma, homemakers represented the highest number of malignant mesothelioma deaths among women in 2020 (22.8 percent).[30]

Civil court filings also reflect the fact that injuries from secondary exposure are much more common among women than men. According to a 2023 KCIC Consulting report, “Allegations of secondary exposures are less prevalent for male plaintiffs. While 20% of female plaintiffs filing lawsuits in 2022 alleged only secondary exposure, less than 1% of male plaintiffs alleged only secondary exposure to asbestos.”[31] This difference is consistent with previous years.[32]

Seeking Justice on Behalf of Women and Children Exposed in the Home

With proper workplace hygiene and policies, secondary asbestos exposure is easily preventable, but too few employers have taken basic steps to protect workers and their families.[33] In addition to Larry Boyton’s case, described earlier, recent lawsuits illustrate how badly many employers and industries have failed families.

Warren v. Algoma Hardwoods, Inc.

Craig Warren worked in residential and commercial carpentry in the late 1970s and then became a general contractor in the 1980s. He worked with several asbestos-containing products, including Algoma Hardwoods doors, from 1977 to 1980.[34] Craig was never told about the asbestos.[35] As a result, he would come home from work with asbestos unknowingly on his clothes and exposed his wife, Deanne.

In 2019, Deanne, who did not work outside the home, was diagnosed with mesothelioma at age 61. Her disease created something like a “vice” around her lungs, and “as the disease advances, the vice [will] tighten” (keeping oxygen from reaching her lungs). She “will ultimately succumb to a protracted and painful asphyxiation.”[36] Her remaining years — reduced from 21.5 to 2.5 years — have been occupied with debilitating chemotherapy, despondency and constant fear of death.[37]

In February 2020, Craig and Deanne sued Algoma Hardwoods. The parties stipulated that Deanne’s economic damages totaled $1.5 million, leaving the jury to determine non-economic damages only.[38] A jury reached a more than $43.7 million verdict in favor of Craig and Deanne.[39] After the trial judge factored in the jury’s liability findings against non-party defendants, set-offs and a reduction in Craig’s loss of consortium award, that amount was ultimately reduced to around $17.2 million in August 2022.[40]As of November 2022, the case was still on appeal.[41]

Weist v. Kraft Heinz Company

Robert Weist worked as an insulator for Metal Masters where he was required to work with asbestos materials at a Kraft Heinz processing plant.[42] Asbestos dust covered his clothes. He carried it home, where it would become airborne again. That’s how his wife, Kathy, was poisoned with asbestos.[43]

Kathy was diagnosed with malignant mesothelioma and died.[44] The following year, Robert filed claims against Metal Masters and Kraft Heinz[45] for the secondary asbestos exposure that caused his wife’s death.[46] Numerous experts, including a pulmonologist and toxicologist, supported his claim,[47] and in September 2021, a jury awarded wrongful death, survival and loss of consortium damages totaling $22 million, including $10 million in punitives against Kraft Heinz.[48] It is unclear if any of this verdict has been paid; reports indicate that the court reduced/remitted the verdict.[49]

Pete v. Ports America Gulfport, Inc.

Between 1946-1968, Preston Pete worked as a longshoreman with asbestos cargo at the Port of New Orleans.[50]His son, Henry, was around the house when his father came home wearing clothing covered in asbestos dust. As a child, he both “carried his father’s work clothes as well as helped his mother launder them.”[51]

In May 2019, Henry was stricken with malignant mesothelioma, altering his life.[52] He underwent chemotherapy, suffering with a “continuing cough, shortness of breath and right shoulder pain.”[53] As he put it, “The once active Pete (he’s an Air Force veteran originally from New Orleans)” and “grandfather to eight … fancied himself as Uber Grandpa, spending his retirement ferrying around his grandchildren. He can’t do that anymore.” And like all methothelioma victims, he faced “a grim road for the remainder of his life because of the diagnosis.”[54]

Henry sued, and in November 2020, the jury rendered its verdict: Ports America and two other companies were responsible for Henry’s mesothelioma from take-home exposure, with damages totaling over $10.3 million.”[55] Ports America challenged the verdict. Henry died while the case was on appeal; his son continued the action.[56] In January 2023, an appeals court fully affirmed the jury’s decision, both in reasoning and amount.[57] However, compensation still has not been paid to this family. In April 2023, the Louisiana Supreme Court agreed to hear the case.[58]

Waguespack v. Avondale Industries, Inc.

Lana Waguespack’s father, brother and husband all worked at Avondale Shipyards, where they used or handled asbestos and asbestos dust was in the air. They came home with asbestos-contaminated work clothes, poisoning their homes and Lana starting in 1944 (the year of her birth) and for many years thereafter.[59] In August 2019, she was diagnosed with mesothelioma.[60] The following month, she sued Avondale Industries and others in state court.[61] Lana died two months after her diagnosis; her children pursued her claims and their own.[62] In September 2022, the case settled for an undisclosed amount.[63]

Crossland v. Huntington Ingalls, Inc.

For several decades, Linda Crossland’s husband worked for Woodward Design & Buildand “carried asbestos fibers into her home from his work on various worksites.”[64] The company never warned him about or protected him from asbestos dangers. Three times a week, Linda laundered his asbestos-covered work clothes. In August 2020, Linda developed mesothelioma.[65] She pursued claims against multiple companies including Woodward.[66] In March 2023, the parties reached a confidential settlement.[67]

Legendre v. Lamorak Insurance Co.

Percy Legendre and his sons, Floyd and Percy Jr., worked for Louisiana companies that exposed them all to asbestos fibers on a daily basis from products manufactured, distributed, handled and sold by Entergy Louisiana, Huntington Ingalls and Uniroyal Holding.[68] They carried asbestos home on their clothes, exposing Percy’s other son, Stephen, “to dangerously high levels of asbestos through contact with them as well as through the handling and washing of their clothes and other objects belonging to them as well as being in the area of others washing and handling their clothes and other objects belonging to them.”[69] In September 2019, Stephen was diagnosed with mesothelioma.[70] The following month he filed suit.[71]

Stephen died before the case went to trial; his widow and children continued the action.[72] By the second day of the August 2022 trial, all parties reached a settlement for an undisclosed amount.[73]

Fox-Jones v. National Oilwell Varco, L.P.

“Between 1980 and 1985, while he was between two and seven years old, Brennan Atkeson lived with his mother, Kim Fox-Jones, and his stepfather, Ronnie Pratt, in rural Oklahoma. Ronnie worked for his father’s drilling company – Jim Pratt Drilling – as both a driller and derrick-hand,”[74] where he was exposed to National Oilwell Varco, Union Carbide and Montello products that contained or incorporated asbestos. “In February 2016, at the age of 38, Brennan was diagnosed with stage four mesothelioma.”[75] He sued due to exposure to asbestos via his stepfather’s work clothing.[76] Just six months later, Brennan died from mesothelioma.

Because National Oilwell Varco, Union Carbide and Montello never answered a direct discovery question about nonparties they would seek to blame, the court issued a pretrial order barring them from entering evidence or arguing third-party fault at trial.[77] After a 13-day trial in May 2019, the jury reached its verdict: “$5 million to Brennan’s daughter, $1 million to each of Brennan’s parents, $500,000 for pain and suffering, and $478,026 for financial losses.”[78] An appeals court affirmed the sanction as well as the verdict.[79] The case settled in November 2021 for an undisclosed amount.[80]

Quisenberry v. Huntington Ingalls Incorporated

From 1942 to 1977, Bennie Plessinger worked for Newport News Shipbuilding and Dry Dock (“Shipyard”), where he was routinely exposed to asbestos and asbestos dust adhered to his clothing.[81] Bennie “brought home asbestos fibers and his car was contaminated with these fibers. His daughter, Wanda, lived in his home and was exposed to asbestos beginning in 1942. Beginning in 1954, she regularly helped launder her father’s clothes, shaking off and breathing in asbestos dust in the process. She moved out of the home in 1969.”[82] In December 2013, Wanda was diagnosed with malignant pleural mesothelioma; she died from the disease three years later.[83]

Her son sued the Shipyard. In October 2018, the Virginia Supreme Court ruled that the employer owed a duty of care to family members like Wanda, where a company’s negligence “allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home….”[84]The final outcome of the case is unknown.

Ramsey v. Georgia Southern University Advanced Development Center

From 1967 to 1979, Robert Ramsey regularly handled asbestos products while making pipes and pipe fittings at Haveg Industrial Plant in Marshallton, Delaware.[85] Asbestos dust settled on his work uniform, which he wore home each day. Throughout this period, Robert’s wife, Dorothy, did his laundry, regularly washing his asbestos-covered uniform.[86] When Dorothy was diagnosed with lung cancer, she sued Georgia Southern University Advanced Development Center and Hollingsworth & Vose Co., the manufacturers who supplied the asbestos-containing products to Haveg. Dorothy died in 2015 while the case was pending.

In August 2017, a state court judge cited Delaware Supreme Court precedent and dismissed the case.[87] The following year, the Delaware Supreme Court reversed, ruling that “the spouse of an employee harmed by take-home asbestos exposure [can] sue an asbestos product manufacturer and recover if it failed to provide warnings and safe laundering instructions to her spouse’s employer, so he could protect himself or whoever laundered his clothes….”[88] The final case outcome is unknown.

Notes