On August 20, 2014, the California Supreme Court granted petitions for review in two published decisions that reached different conclusions on whether a defendant owed a duty for take-home exposures. Both matters (Haver v. BNSF Railway Co. and Kesner v. Superior Court) presented the following issue: If an employer's business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee's household who could be affected by asbestos brought home on the employee's clothing? Faced with petitions for review in these two published decisions that reached different results, California's high court is working to resolve the conflict.

In Haver v. BNSF Railway Co., the Second Appellate District affirmed the dismissal of a take-home exposure claim filed by a wife who laundered her husband's clothes, holding the defendant premises owner did not owe a duty, "consistent with the majority view in the nation on this issue." In Kesner v. Superior Court, the First Appellate District reversed a nonsuit in favor of a defendant who manufactured asbestos brake-linings at its plant, holding a duty was owed to family members of a plant worker for take-home exposures.

Over the past ten years, take-home exposure claims have been filed with more frequency in California and other states. The reason for this is because take-home exposure claims involve the specter of a "limitless pool of plaintiffs" (Campbell v. Ford Motor Co), and "limitless liability" (Holdampf v. AC&S). As Haver noted, the majority of courts throughout the nation - which include the highest courts in Delaware, Georgia, Iowa, Michigan and New York - have sided with defendants to conclude no duty is owed for take-home exposure claims. (See e.g. Riedel v. ICI Americas, CSX Transp. v. Williams, Van Fossen v. Mid-American Energy, Miller v. Ford Motor Co., and others.) However, courts in New Jersey, Tennessee and Louisiana have reached a contrary conclusion to impose a duty for take-home exposure claims. (See e.g. Olivo v. Owens-Illinois, Satterfield v. Breeding Insul. Co. and Chaisson v. Avondale Indus., Inc.)

In California, now that Haver and Kesner are under review by the California Supreme Court, the opinions cannot be cited as precedent pursuant to Rule 8.1105(e) of the California Rules of Court. It will take more than a year before the cases are fully briefed, orally argued and a decision is rendered. In the interim, the leading case in California is Campbell v. Ford Motor Co., which held "a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business." While defendants in California will be able to use Campbell to their advantage in defending against premises liability claims, plaintiffs will no doubt seek to distinguish that case, as the appellate courts did in both Haver and Kesner, to assert take-home exposure claims in other factual contexts and other claims such as for product liability.

Polsinelli's toxic tort team has and will continue to challenge take-home exposure claims in California and other jurisdictions. Several members of Polsinelli's Los Angeles office, David Schultz and J. Alan Warfield, are members of the amicus committee for the Association of Southern California Defense counsel, and intend to file amicus curiae briefs in Haver and Kesner. Mr. Schultz has briefed the issues in another appeal pending in California, Petitpas v. Exxon Mobil Corp., in which a summary judgment was granted against a plaintiff's premises liability take-home exposure claim. That appeal has been fully briefed since July of last year, and is awaiting oral argument. Finally, on August 18th several members of Polsinelli's St. Louis office prevailed on a motion in Illinois for summary judgment to dismiss a product liability take-home exposure.