Toxic Torts

Can I Make a Claim for Secondary Exposure to Asbestos?

You've never worked with asbestos, but now you have an asbestos-related disease. Do you have legal recourse?

Because asbestos fibers are airborne, they can be breathed in by anyone, including people who are not handling asbestos products themselves. Any asbestos-related disease can form the basis of an injury claim, regardless of how it was caused. So, let's take a closer look at some key issues when it comes to asbestos claims that are based on secondary exposure.

How Secondary Exposure to Asbestos Happens

Secondary exposure to asbestos -- also called "bystander" or "indirect" exposure -- occurs when a person is exposed to asbestos fibers generated by the activity of someone else. Since even limited exposure to asbestos can cause the development of mesothelioma in some people, secondary exposure may be just as dangerous as working directly with asbestos.

In the decades prior to the widespread use of safety precautions around asbestos, people whose jobs brought them into contact with asbestos did not always wear protective clothing or take showers at the job site. When they came home, their clothing was still contaminated with asbestos fibers. As a result, asbestos fibers were spread around the home (that's why this is sometimes called "take-home" exposure).

Shaking clothes out before laundering them exposed family members to asbestos fibers. Hugging a family member just home from a day doing asbestos-related work generated the release of asbestos particles into the air. Asbestos fibers clung to car seats, even to family pets. In all of these situations, the asbestos fibers were disturbed repeatedly and inhaled by people who did not work with the asbestos-containing products (ACPs) themselves.

Another common way someone who didn't handle ACPs could still be exposed to asbestos was through remodeling or construction work taking place in their home, office, or school. When construction workers installed or disturbed ACPs, the dust that was created circulated throughout the building, exposing office workers. Sometimes it accumulated on workspaces and was disturbed later, even after the construction was done.

Legal Options for Secondary Exposure

A person who suffers from a secondary asbestos-related disease can file a personal injury lawsuit in their state's civil court system, and also against the trust funds of bankrupt manufacturers and suppliers of asbestos. However, there are a few factors which can make these cases more difficult to win.

Proving Exposure

One of the major hurdles in any asbestos case is identifying who manufactured or supplied the ACPs. Identifying brands is difficult for people who used ACPs themselves; they might have used products from a stockroom which were not labeled, or they simply might not remember what products they used.

Identifying the products becomes even more challenging when you did not work with them. If you were exposed through hugging your father every day when he came home from work and he is no longer living, you might have no idea what brands or even kinds of ACPs he worked with. If you were exposed when your house was remodeled forty years ago, you probably don’t have even a guess about the nature of the products used.

Because of this difficulty in pinpointing exposure, any information you can provide is crucial to helping make your case. If possible, talk to relatives, friends, and former coworkers. If you are unable to identify specific products, it will be very important for you to be able to describe how, where, and when you were exposed through someone else’s work. Also, depending on the nature of your exposure, your attorney might be able to identify job sites, coworkers, or even products.

Limitations on Property Owners

As a general rule, property owners have a duty to protect people from injury on their property. If you were exposed to asbestos from construction working happening in your office building, you might have a strong property owner claim.

However, in a take-home exposure situation, the situation is more complicated. Some courts have concluded that a property (“premises”) owner cannot be deemed negligent with regard to workers’ family members.

For example, in Campbell v. Ford (2012), a California court ruled on the case of a woman who was exposed to asbestos through the work of her father and brother. She sued Ford Motor Company as the owner of the site where her father and brother had used ACPs in construction work. The court found that Ford did not owe a duty to family members of people who worked on its property, meaning she was unable to recover from Ford for her damages.

What If I Don’t Know How I Was Exposed?

Occasionally people are diagnosed with an asbestos-related disease and are unable to remember any times they were around asbestos or ACPs, even as children. In this case, your attorney might ask you about products that you weren’t aware contained asbestos.

If you don’t have any evidence of exposure, your medical evidence for any disease other than mesothelioma will need to be very strong to have a case. For example, if you have lung cancer, your X-rays or CT scans will need to show some evidence of lung scarring, which is characteristic of asbestos exposure.

If the medical evidence is strong but you can’t identify any form of exposure, you might still be able to file claims against bankrupt defendants. Because some manufacturers of ACPs sold so many products, some of them might pay a relatively small amount upon proof of an asbestos-related disease. Learn more: What if the Defendant in My Asbestos Case is Bankrupt?

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