Count yourself fortunate if you do not have a family member that has suffered, or suffers, from Mesothelioma. Mesothelioma is a form of cancer that develops along the protective lining of the body’s organs. Typically, a person that develops Mesothelioma has nothing to look forward to but a slow and agonizing death, wrought with intense pain, wheezing, coughing, and fatigue.
One of the main causes of Mesothelioma is exposure to Asbestos.
Asbestos was used at the turn of the century for insulation and shipbuilding. Although asbestos is no longer in use, the effects of the material are still felt today, as evident by the recent case of Macias v. Mine Safety Appliances Co.
In Macias, the plaintiff was a “tool keeper” for a Seattle shipyard between 1978 and 2004. As part of his job, the plaintiff would supply shipyard personnel with tools and equipment, which included respirators that were manufactured by the defendant. The respirators were manufactured to protect against numerous contaminants, such as welding fumes, paint fumes, asbestos particles, and dust.
After a full day’s work, the shipyard workers returned the “filmy” and “dusty” respirators to the tool room. Sometimes, the plaintiff would toss the respirators into a nearby basket, creating “little poufs of dust.” The plaintiff would clean the respirators by using a nylon brush, rinse them in a sink, and then place them in a drying oven.
The respirators apparently did not have any warning concerning the dangers of asbestos exposure. The plaintiff was eventually diagnosed with Mesothelioma.
The plaintiff brought suit against the defendant, the entity that manufactured the respirators. The plaintiff alleged that the defendant negligently failed to warn the plaintiffs of the risks inherent when exposed to asbestos.
The Washington Court of Appeals, Division 2, rejected the plaintiff’s claim. Specifically, the Court reasoned that the defendant did not “manufacture, sell, or supply the asbestos” that harmed the plaintiff. Therefore, the defendant was outside the “chain of distribution of the hazardous product” and owed no duty to warn the plaintiff of the risks associated with exposure to asbestos.
Out of a panel of three, the majority opinion was joined by two judges. The third, Judge Penoyar, filed a concurrence. In his concurrence, Judge Penoyar seemed to invite the Washington Supreme Court to take up the matter.
Here, the respirators’ intended purpose was to capture hazardous substances and thus protect the user. For the respirators to function properly, as intended by the user and the manufacturer, the user or a co-worker needed to clean the respirators’ surface and the filters containing concentrated hazardous products.
Although Judge Penoyar acknowledged that he was bound by prior Supreme Court decisions, he ended his concurrence with “[w]here the Supreme Court may choose in the future to paint with a narrower brush in cases such as this remains to be seen.”
It is unclear whether the Washington Supreme Court will take up this issue.
- Mesothelioma Lawsuits (socyberty.com)
- The asbestos trap (bbc.co.uk)
- Housing Firm Fined after Plumber Exposed to Asbestos (first4lawyers.com)
- Asbestos Exposure Results in Fine for Pub Operator (first4lawyers.com)
- Ex-teacher aide seeks asbestos compo (news.theage.com.au)