Issue of Foreseeable Duty to be Determined by a Jury in Take-Home Exposure Case Against Plant Where Decedent’s Husband Worked Court of Appeal of Louisiana, Fourth Circuit, May 4, 2016
The plaintiffs’ decedent, Elizabeth Sutherland, alleged take-home exposure to asbestos from her first husband’s work clothes. The plaintiff’s first husband, James “Huey” Chustz, worked as an electrician helper for Hershel Leonard Jr. Electric Company from 1964-72. At minimum, he spent 250 days at the sugar mill Alma Plantation, LLC, where he would become covered in dust from coming into contact with pipes. After dismissal of various parties and claims, the only claim remaining against Alma was if it owed a foreseeable duty to the decedent. Alma moved for and was granted summary judgment on this issue and the plaintiffs appealed.
The plaintiffs’ appeal was granted. The court reviewed Mr. Chustz’s testimony regarding the dirty conditions of Alma and his clothing from working there. The court also reviewed numerous articles presented by the plaintiffs on the dangers of asbestos in the workplace, invoices showing asbestos-containing products purchased by Alma, and the affidavits of industrial hygienist Steve Hays and pulmonary expert Dr. John Maddox. Mr. Hayes’ affidavit set forth how Mr. Chustz would have been exposed to asbestos that he would have brought home and Dr. Maddox’s affidavit set forth how decedent’s “cumulative asbestos exposures caused this lethal malignant pleural mesothelioma.”
In its ruling, the court stated: “Plaintiffs presented evidence in opposition to Alma’s Motion for Partial Summary Judgment to demonstrate that Mrs. Sutherland may have been exposed to asbestos dust, that her death was caused by an asbestos-related illness, and that there was industrial knowledge of the dangers of asbestos and take home exposure. As noted by the U.S. District Court from the Middle District of Louisiana regarding the Walsh-Healy Act, “the Louisiana Supreme Court has found that the act evidences ‘a level of knowledge that pervaded the industry’ and shows ‘a growing understanding and awareness of a serious problem regarding asbestos.’” Catania v. Anco Insulations, Inc., 05-1418-JJB, 2009 U.S. Dist. LEXIS 107375, 2009 WL 3855468, at *2 (M.D. La. Nov. 17, 2009) [*13], quoting Rando, 08-1163, pp. 28-29, 16 So. 3d at 1086-87. Genuine issues of material fact remain that would assist in determining whether an alleged duty of Alma to Mrs. Sutherland was foreseeable, given the unique facts and circumstances in this case. As such, we find, like the Louisiana Supreme Court found in Kenney, that a trial on the merits is necessary and would assist in determining whether Alma owed Mrs. Sutherland a duty. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.”