COLORADO — The plaintiff filed suit against several defendants alleging exposure to asbestos caused their development of mesothelioma. As for the plaintiff Mestas, he alleged exposure to asbestos from the work clothes of his father from 1953-1974. He also alleged direct exposure to asbestos while working on personal vehicles from 1968-1992. The plaintiff Muse sought damages for loss of consortium. General Electric removed the case based on diversity. The plaintiffs sought leave to file an amended complaint arguing that they needed to add four additional defendants and sought remand. John Crane Inc. (JCI) also moved to dismiss the complaint for failure to state a claim for relief.
As for the motion to amend, the court noted that the additional parties should be joined if they are “indispensable” under Rule 19 and may be added by discretion under Rule 20. Here, the court quickly concluded that the parties were not necessary under Rule 19 because the parties not currently in the suit have no bearing on the plaintiffs’ case against those in the instant suit. Moreover, the plaintiffs could still pursue those absent parties in future litigation. As for discretionary joinder under Rule 20, the court found that the plaintiffs had not put forth a showing of good faith. Specifically, the court noted that the plaintiffs sought remand when they filed their first amended complaint. The court called this a “plausible inference of forum shopping” and noted that only the the defendants brought up the issue of remand to the court. Accordingly, the court denied the motion for leave.
As for JCI’s motion to dismiss, the magistrate found that although Colorado law had not laid out a theory of take home exposure, it was plausible that the court would find the defendants owed the plaintiffs a duty. Accordingly, the magistrate found that issues of foreseeability of harm were more appropriate for summary judgment and therefore recommended that the motion to dismiss be denied. JCI argued that the magistrate “relied too much” on foreseeability as to whether the claims could be valid under Colorado law. The court disagreed and specifically pointed out that asbestos has been “universally recognized” as a carcinogen. Moreover, several jurisdictions have recognized take home asbestos claims vis a vis a theory of negligence. Accordingly, the defendants objections were overruled.