Virginia: Special Cases – a Lawyer’s Asbestos

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On October 11, 2018, the Virginia Supreme Court affirmed that an employer owes “a duty of care to an employee’s family member who alleges exposure to asbestos from work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home” in Quisenberry v. Huntington Ingalls, Inc., No. 171944, at 1-2. The case presented an important question of first impression under Virginia law, certified by the United States District Court for the Eastern District of Virginia and accepted by the Virginia Supreme Court; with courts across the nation having split on the question under other states’ law. Mr. Waterman’s law firm authored an amicus curiae brief in Quisenberry on behalf the prevailing Plaintiff.

In Quisenberry, the daughter of a Newport News Shipyard worker died from mesothelioma caused by being exposed to employment-related asbestos brought into her home on her father’s dusty work clothes for 27 years, which she regularly shook out and laundered for 15 of those years. Id. at 2. During 17 of those asbestos-exposure years, including all 15 of her laundering years, “the Shipyard knew or had reason to know of the dangers that asbestos posed to workers’ family members and members of the public, including [the daughter],” id.; and allegedly “the Shipyard was negligent in choosing not to exercise reasonable care to, among other things, sufficiently warn workers not to wear work clothes home; educate workers about safeguards such as overalls; provide a locker room, showers, or a laundry service; and adhere to various statutes, regulations, and guidelines.” Id. at 3. But the Shipyard asserted that it owed no legal duty upon which to predicate such “take home” exposure liability, despite most but not all Virginia Circuit Court having recognized such a duty. Id.

Analyzing the necessity of a predicate legal duty between “strangers under the law,” Quisenberry lionized its opinion in RGR, LLC v. Settle in 2012 as “one of this Court’s benchmarks in the area of general negligence,” id. at 5 n.3; plus relied upon Friend’s Personal Injury Law in Virginia, Reinstatement of Torts, Prosser & Keeton on Torts, and even Blackstone’s Commentaries and 1928 Palsgraf v. Long Island R.R. Co. from New York. Id. at 5-14. Quisenberry noted that “courts nationwide are split on the issue,” but followed Alabama, California, Indiana, Louisiana, New Jersey, Tennessee, and Washington state law finding a legal duty. Id. at 11-12 n.7. “The innocent cohabitator represents the quintessential class of persons ‘rightfully proceeding on their way’ yet placed in a ‘given area of danger’ . . . we find a duty does indeed lie to such persons in the recognizable and foreseeable area of risk”. Id. at 14 (underlining added).

The 14-page 4-3 majority opinion in Quisenberry was written by Senior Justice Millette, sitting in place of Justice Goodwyn who had recused himself, and was joined by Justices Mims, Powell, and McCullough. An 18-page dissent was authored by Chief Justice Lemons, joined by Justices McClanahan and Kelsey. In short, the dissent concluded: “the take-home duty recognized today by the majority is a newly created duty imposed as the basis of a newly created cause of action that is wholly unsupported by our precedent”. Id. at 32.