On June 22, 2015, Judge C. Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama, Northeastern Division, certified two questions to the Alabama Supreme Court in a take-home asbestos case. The order is located here. Certification of the two questions followed a bench trial, in which the the Tennessee Valley Authority (TVA) was the sole remaining defendant. The facts were similar to most take home asbestos cases.
Barbara Bobo was diagnosed with, and eventually died from, malignant pleural mesothelioma, which was allegedly caused by exposure to asbestos fibers on her husband’s clothing. Suit was filed by Ms. Bobo prior to her death, and following Ms. Bobo’s death, Ms. Bobo’s daughters, co-personal representatives, were substituted as Plaintiffs. The Plaintiffs alleged that Ms. Bobo’s husband brought home asbestos fibers on his clothing while working at a TVA nuclear facility in Alabama from 1975 until 1997, and that Ms. Bobo was exposed to those fibers while laundering Mr. Bobo’s clothing, among other ways. During the time Mr. Bobo was a TVA employee, he performed a variety of tasks at the TVA facility, some of which included assisting insulators with work that required cleaning up and otherwise manipulating asbestos. Following the bench trial, Judge Smith found that “[t]he preponderance of the evidence presented at trial established that a significant quantify of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue while having received good rates on wholesale insulation at the time” at the TVA facility. The Court also found that Mr. Bobo passed away in 1997 due to “lung cancer induced by asbestosis.” It was undisputed that Ms. Bobo could have been exposed to asbestos from sources other than the TVA.
In order to decide the case, Judge Smith required clarity on the law of duty and causation in a take home asbestos case. Accordingly, Judge Smith certified two questions to the Alabama Supreme Court:
- Whether a premises owner has a duty to protect the family members of persons who work on the property owner’s premises from secondary exposure to a toxic agent, such as asbestos, used during the course of the property owner’s business? and
- What causation standard applies when multiple exposures to a toxic agent, such as asbestos, combined to produce the Plaintiff’s injury?
The parties’ arguments pertaining to the duty issue centered around major take home cases in other states, including California’s Campbell, which we discussed here. On the causation issue, the Plaintiff argued that the “substantial contributing factor” test should apply, while TVA argued for a more stringent standard, such as the standard set forth in Lohrman, which we discussed here and here.
For obvious reasons, the result of this case will have an enormous impact on take home exposure cases in Alabama.