Take-home asbestos duty decisions were relatively slow in 2022. In fact, only the United States District Court for the Eastern District of Louisiana ruled on the direct question of whether a defendant owes a duty to a take-home plaintiff. In Cortez v. Lamorak Ins. Co., the court rejected a defendant’s argument that it had no duty to a take-home plaintiff based on exposure from 1951 to 1972. The defendant argued unsuccessfully that because OHSA did not issue its guidance on the risks of take-home exposure until 1972, it had no duty to plaintiff. The court rejected the argument based on non-OHSA evidence relating to the known dangers of take-home risks well before 1972 and prior Louisiana rulings, including Zimko v. Am. Cyanamid. As addressed below, the same court tackled take-home asbestos claims under workers’ compensation law.

Like in 2021, courts continue to confront the similarities between take-home asbestos claims and take-home COVID-19 claims in 2022. Specifically, in Ruiz v. ConAgra Foods Packaged Foods LLC, the United States District Court for the Eastern District of Wisconsin wrestled with Wisconsin public policy and historical take-home asbestos duty cases when ruling that an employer did not owe a duty to an employee’s family member for contraction of the COVID-19 virus that was allegedly caused by the employer’s negligent protocols to combat the spread of the virus.

There were also a notable court ruling and jury verdict in 2022 in take-home asbestos cases unrelated to duty. A Pittsburgh jury rendered a defense verdict for Union Carbide finding that a plaintiff’s alleged exposure to take-home asbestos from Georgia Pacific joint compound did not cause her mesothelioma. And a Louisiana appellate court affirmed a trial court’s granting of summary judgment to two defendants that argued there was no question of fact as to exposure. In Allen v. Eagle Inc., et al., the plaintiff’s only evidence of exposure as to the two defendants was inconsistent deposition testimony from the plaintiff’s husband.

While the focus of this article is on take-home duty decisions, filing data is also relevant. KCIC Consulting reports that take-home filings in 2022 were higher than 2021 — as a percentage of all asbestos case filings — and above pre-pandemic statistics coming in at 3.6 percent, compared with 2.1 percent in 2021, 2.1 percent in 2020, 2.6 percent in 2019, and 3.4 percent in 2018. Also of note, the female plaintiff secondary claims is up 8 percent from 2021 reaching 20 percent and the percentage of combination claims (primary and secondary claims in
a single suit) for all plaintiffs reached a high of 33.5 percent.

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