Legal Backgrounder …

Legal Backgrounder                                                                                          WLF
                                                                                                                  Washington Legal Foundation
                                                                                                                   Advocate for freedom and justice®
                                                                                                                  2009 Massachusetts Avenue, NW
                                                                                                                  Washington, DC 20036
                                                                                                                  202.588.0302




 Vol. 23 No. 32                                                                                                              July 25, 2008


                      TEXAS COURTS EMBRACE
                      THE NATIONAL TREND ON
                   HOUSEHOLD ASBESTOS EXPOSURE
                                                                     by

                                       Diana P. Larson and Joy E. Palazzo
         The price tag on asbestos-related household exposure litigation in Texas has been significantly reduced.
 Until recently, Texas courts had not weighed in on the controversy of whether a premises owner owes a duty to
 household members of its employees or contractors. Other states have addressed this issue, and the trend from
 the majority of courts has been to decline creation of a new duty.1

          Since the emergence of asbestos litigation in the 1970s, it has continued to grow and expand to the point
 that the United States Supreme Court characterized it as an "elephantine mass" in 1999. See Amchem Prods., Inc.
 v. Windsor, 527 U.S. 815, 821 (1999). The toll taken on the economy, companies and the judicial system for this
 litigation has been enormous.2 Two recent cases in Texas' Appellate Courts have given Texas the chance to
 weigh in on the controversy and signal an embrace of the national trend to short-cut expansion of asbestos
 litigation to household exposure cases.

            1
              See In the Matter of New York City Asbestos Litigation (Holdampf, et al. v. A.C. & S., Inc., et al., & The Port Authority of New
 York and New Jersey), 5 N.Y.3d 486, 806 N.Y.S.2d 146 (N.Y. 2005) (holding that the employer-landowner did not owe a duty of care to
 the spouse of an employee who alleged she was injured by asbestos brought home on her husband's clothes); CSX Transportation, Inc. v.
 Williams, et al. v. Leverett, 608 S.E.2d 208 (Ga. Sup. Ct. 2005) (declining to extend "the employer's duty [to furnish a reasonably safe
 place to work and to exercise ordinary care and diligence to keep it safe] beyond the workplace to encompass all who might come into
 contact with an employee or an employee's clothing outside the workplace"); In re Certified Question from the 14th Dist. Ct. of App. Of
 Texas, 479 Mich. 498, 740 N.W.2d 206, 222 (Mich. 2007) (no duty based on the lack of a relationship); Martin v. General Electric Co.,
 et al., 2007 WL 2682064, at *8 (E.D. Ky. Sept. 5, 2007) (holding that the harm was unforeseeable, therefore there was no duty); In re
 Asbestos Litigation, 2007 WL 4571196 (Del. Super. Dec. 21, 2007) (unpublished opinion) (that the relationship between the spouse of
 one of its workers and the premises owner was insufficient to impose a duty of care); Rohrbaugh v. Owens Corning Fiberglass Corp.,
 965 F.2d 844 (10th Cir. 1995) (construing Oklahoma law and holding that there is no duty to household members). But see Olivo v.
 Owens-Illinois Inc., et al., 895 A.2d 1143, 1149 (N.J. 2006) (holding that to the extent a premises owner owes a duty to its workers it also
 owes a duty to their spouses handling the workers' clothing); Zimko v. Am. Cyanamid, 905 So.2d 465, 483 (La.App. 4 Cir. 2005), writ
 denied, 925 So.2d 538 (La. 2006) (following the lower court's decision in Holdampf, which was reversed, the court held that a premises
 owner did owe a duty to household members); Satterfield v. Breeeding Insulation Co., Inc., 2007 WL 1159416 (Tenn. Ct. App. April 19,
 2007) (recognizing a duty "limited to the foreseeability of harm to members of employees' households who routinely come into close
 contact with employees' contaminated clothing over an extended period of time").
 .
            2
              It has been estimated that over $70 billion had been spent in asbestos litigation. See Stephen J. Carroll et al., Asbestos
 Litigation xxiv (RAND Inst. For Civil Justice 2005), available at http://www.rand.org/publications/MG/MG162. Further, over 70
 companies have filed for bankruptcy as a result of this litigation. See id.

         Diana P. Larson is a partner in the Environmental Section of the Houston, Texas office of Gardere Wynne
 Sewell LLP. Joy E. Palazzo is a Litigation Associate at Morgan, Lewis & Bockius LLP in Houston. The opinions
 stated herein are solely those of the authors.
        In Alcoa Inc. v. Behringer,3 the Fifth District Court of Appeals definitively declined to extend the duty of
a premises owner to the household members of its workers. More recently, the Fourteenth Court of Appeals in
Houston, Texas issued a new opinion in Exxon Mobil Corp. v. Altimore,4 sidestepping the issue of duty directly,
but ultimately holding that plaintiffs presented insufficient evidence to support a finding of an extreme degree of
risk of serious injury to a household member of one of Exxon's employees, furthering the trend away from
extending a premises owner's duties. Although the Texas Supreme Court has yet to decide the issue, the
Behringer opinion and the new Altimore decision signal an embrace under Texas jurisprudence of the majority
trend of other states that find no duty to household members. See supra note 1.

         Legal Duty in Texas. To prevail on a cause of action for negligence under Texas law, the plaintiff must
satisfy three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages
proximately caused by the breach. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). The
threshold issue is whether the defendant owed a duty to the plaintiff. Id.; Graff v. Beard, 858 S.W.2d 918, 919
(Tex. 1993). The Texas Supreme Court has stated that in determining whether a legal duty exists at common law,
courts should look at "the risk, foreseeability, and likelihood of injury weighed against the actor's conduct, the
magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the
defendant." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991); El Chico Corp. v.
Poole, 732 S.W.2d 306, 309 (Tex. 1987). Generally, a person does not owe a duty to another in the absence of
some relationship that imposes the duty. See Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1984). For
instance, premises owners generally have a duty to use reasonable care to make their premises safe for the use of
invitees. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997).

        In household exposure cases, plaintiffs have sought to expand this duty to spouses or family members of
an employee or contractor who worked at a defendant's premises, despite the lack of a direct relationship
between the family members and the premises owner. As a result, plaintiffs argue that the injuries to family
members were foreseeable by the premises owner. Thus they argue that the duty of care should be extended to
the household members of workers injured as a result of secondhand exposure to contaminants, such as asbestos,
which were brought home on the clothing of the workers.

        Alcoa Inc. v. Behringer: Background. In Behringer, Barbara Alford married John Alford in the 1950s.
Mr. Alford worked at an Alcoa facility in Rockdale, Texas during and after their marriage. In 1959, Barbara and
John Alford were divorced and ceased living together. In the 1960s, Barbara Alford married Leroy Berhinger.
Barbara Behringer was diagnosed with pleural mesothelioma in 2003. She and Leroy Behringer then filed suit
alleging negligence against Alcoa claiming that she contracted mesothelioma as a result of washing John Alford's
work clothes during their marriage in the 1950s. Plaintiffs claimed that Mr. Alford's clothes that she washed had
asbestos on them from the Alcoa facility where Mr. Alford worked. Alcoa moved for summary judgment on the
basis that Alcoa did not have a duty to the household members of its employees who had never set foot in an
Alcoa facility. After the trial court's denial of the summary judgment, Behringer was tried before a jury in
Dallas, Texas. The jury found Alcoa negligent, and a judgment was entered in November 2005 against Alcoa.5
Alcoa appealed.


         The Behringer Appeal & Opinion. The key issue raised on appeal, and addressed by the Fifth District

         3
            235 S.W.3d 456 (Tex. App. ­ Dallas 2007, pet. filed). Richard O. Faulk, Kevin L. Colbert and Diana P. Larson of Gardere
Wynne Sewell LLP were trial counsel in the Behringer case. The appellees/plaintiffs in the Behringer case have filed a petition for
review with the Texas Supreme Court. At the time of this publication, the Texas Supreme Court has requested appellant, Alcoa, to
respond to the petition for review. No opinion or ruling has been issued by the Texas Supreme Court.
          4
            __ S.W.3d __, 2008 WL 885955 (Tex. App.--Hous. [14th Dist.] Apr. 3, 2008, n.p.h.). The Altimore case has a complex
appellate history. The court has actually issued four opinions in this case. The first opinion was issued on August 1, 2006 (2006 WL
2165725). This opinion was replaced by a new opinion on December 7, 2006 (2006 WL 3511723), which was replaced on April 19,
2007 with a new opinion (2007 WL 117447). On August 9, 2007, the Court withdrew its last opinion and the new opinion was issued
April 3, 2008.
          5
            The jury awarded Mrs. Behringer $12 million in actual damages and $2 million in exemplary damages. Mr. Behringer was
awarded $1.5 million in actual damages and $2 million in exemplary damages. After settlement credits and the punitive damages cap
were applied, the court entered a judgment against Alcoa for $15,593,340.05. See 235 S.W.3d at 459.

Copyright 8 2008 Washington Legal Foundation                     2                                                ISBN 1056 3059
Court of Appeals, was whether Alcoa owed a legal duty to Mrs. Behringer. More specifically, Alcoa argued that
"it did not owe a legal duty to appellees because in the 1950s Alcoa could not foresee the harm of non-
occupational asbestos exposure." See 235 S.W.3d at 459. The Behringer court agreed with Alcoa's argument,
holding that "the dangers of non-occupational exposure to asbestos dust on workers' clothes was neither known
nor reasonably foreseeable to Alcoa in the 1950s."6

       Exxon Mobil Corp. v. Altimore: Background. Altimore was likewise an asbestos personal injury case.
Louise Altimore (also referred to as "Plantiff" or "Appellee" in the opinion) claimed that she contracted
mesothelioma from domestic/household asbestos exposure through her husband, who worked at ExxonMobil
Corporation ("Exxon"). Mrs. Altimore alleged that she was exposed to asbestos while washing her husband's
work clothes which she alleged had asbestos-containing dust on them. Mr. Altimore worked at the Exxon facility
in Baytown, Texas between 1942 and 1977. At trial, Exxon was found negligent by a jury and a judgment for
$992,001 in exemplary damages was entered against Exxon.7 Exxon appealed.

        The Altimore Appeal. The key issue raised on appeal by Exxon and the amicus curiae in support8 was
whether a premises owner or employer has a duty of care to household members of workers for injuries to the
household members from secondhand exposure to contaminants, such as asbestos, which were brought home on
the clothing of the workers. As in Behringer, Mrs. Altimore had no relationship with Exxon and the only
relationship was between Exxon and her husband, an Exxon employee. Such secondhand exposure should not be
sufficient to impose liability, Exxon argued. The Fourteenth District Court of Appeals agreed, at least initially.
The court's original Altimore opinion held that Exxon had not breached a duty to a household member of one of
its workers as the risk of harm to that individual was not foreseeable.9

         The New Altimore Appellate Decision: Sidestepping Duty, the Court Provides Relief. The Altimore
court withdrew its original opinion and ultimately replaced it with a new opinion that sidestepped the issue of
duty, focusing instead on the legal sufficiency of the evidence to support the imposition of exemplary damages.
Despite this sidestep, the Altimore court followed the Behringer court's review of the medical and scientific
literature available to premises owners at that time regarding exposure to asbestos brought home on the clothing
of workers at a premises. See also Colbert & Larson, Ascent to Knowledge: The Foreseeability of `Medical
Curiosities', Vol. 21 No. 17 MEALEY'S LITIGATION REPORT: ASBESTOS, Oct. 4, 2006. The Altimore court noted
that "[d]uring the relevant time period, 1942 to 1972, there was a consensus within the scientific community that
there was a measurably safe level of exposure to asbestos." See 2008 WL 885955, at *6. Further, "[b]y 1972,
experts agreed that a certain degree of exposure to asbestos could cause asbestosis or cancer. After this postulate
was generally accepted, the debate focused on what constituted a safe level of exposure for workers." Id. at *6.

         The Altimore court noted two important issues in reviewing the medical and scientific literature. First,
the court acknowledged that the majority of the scientific community believed a person's risk of harm would vary
depending on the type of exposure to which the individual was subjected. The court acknowledged that exposure
through mining of asbestos is not the same as exposure by working with asbestos-containing products. See id. at
n. 2. Second, the court acknowledged that to successfully bring an exposure case, the plaintiff must support his
claim that he was exposed to a sufficient amount of asbestos to have caused his disease. Id. at *8. Moreover, a
plaintiff must present "comparative epidemiological studies or expert testimony delineating the difference
         6
            235 S.W.3d at 462 (Procedural note without substantive effect: The timing of the release of the Behringer opinion post-dated
the release of the original Altimore opinion and actually cited the Altimore opinion as authority for it's ruling that "the dangers of non-
occupational exposure to asbestos dust on workers' clothes was neither known nor reasonably foreseeable to Alcoa in the 1950s."
Subsequently, when the Fourteenth Court of Appeals in Altimore granted the motion for rehearing and withdrew its original opinion, the
Behringer court then withdrew its original opinion that cited Altimore and reissued its opinion without that citation to Altimore but held
firm to the language that "the dangers of non-occupational exposure to asbestos dust on workers' clothes was neither known nor
reasonably foreseeable to Alcoa in the 1950s.").
          7
            The jury also awarded Plaintiffs $992,001 in actual damages. However, the settlement credit in the case was sufficient to
eliminate this award leaving only the exemplary damages award.
          8
            Diana P. Larson and Richard O. Faulk of Gardere Wynne Sewell LLP wrote an amicus brief in support of ExxonMobil
Corporation on behalf of the American Chemistry Council and the Texas Chemical Council in the Altimore case.
          9
            See 2006 WL 2165725 (Tex.App.--Hous. [14th Dist.] Aug. 1, 2006), withdrawn by 2006 WL 3511723 (Dec. 7, 2006)
withdrawn by 2007 WL 117447 (April 19, 2007), withdrawn by __ S.W.3d __, 2008 WL 885955 (Tex. App.--Hous. [14th Dist.] Apr. 3,
2008, n.p.h.).

Copyright 8 2008 Washington Legal Foundation                        3                                                   ISBN 1056 3059
between a general danger versus an extreme risk to [plaintiff]." Id. at *8.

        Ultimately, the Altimore court held that it could "not conclude that a reasonable trier of fact could form a
firm belief or conviction, when viewed objectively from Exxon's standpoint, there was an extreme degree of risk
of serious injury to appellee during the relevant period of time." Id. at *9.

        Impact of Behringer & Altimore on Texas Household Exposure Cases. What does this mean for
asbestos litigation and in particular for premises owners? Although there is not yet a definitive statement by the
Supreme Court of Texas,10 Behringer and Altimore appear to signal an embrace of the trend toward not
expanding the duties of premises owners in asbestos litigation. Behringer addressed the duty issue squarely and
although the Altimore court sidestepped the duty issue,11 these decisions should ultimately provide some relief to
premises owners faced with a myriad of lawsuits from family members of its employees and contractors for
alleged household exposure to chemicals and toxic substances. Behringer and Altimore indicate a further
reigning-in of asbestos litigation in both the number of lawsuits filed and the price-tag of such litigation in
Texas.12

         Although Behringer and Altimore will not cease all household exposure cases from being filed, at least
for now, they represent a denial of the plaintiffs' bar's attempt to expand the scope of duty and open a Pandora's
Box of increased costs of asbestos litigation. Behringer and Altimore follow the growing trend of not expanding
common law duties, and as a result, not expanding asbestos litigation to another class of plaintiffs that have not
previously been involved in this litigation. Such an expansion of a premises owners' duties would have
expanded litigation and potentially subjected premises owners to limitless liability, far beyond the workers and
their spouses. Defendants in Texas now have the ability to cite to both Behringer and Altimore to support
motions for summary judgment in similarly situated cases involving household exposure claims emanating from
alleged exposure to asbestos before 1972. Although this does not stop plaintiffs from filing all household
exposure cases, it should eliminate much of the litigation that certainly would otherwise have been filed by
plaintiffs seeking to extend the current tort law and legal duties to household members of individuals that
allegedly worked with or around asbestos. Because the Behringer appellees have asked the Texas Supreme Court
to review the case, a definitive answer from the Texas High Court may be forthcoming. Until then, plaintiffs
have little support in bringing household exposure cases against premises owners where the alleged exposure
occurred prior to 1972.




          10
               The Behringer opinion is currently before the Texas Supreme Court, which has not yet decided whether to take the case
or not.
          11
             The court's difficulties in this case are evident by the fact that the Court has issued three prior opinions in the case, which it
withdrew, and issued the latest opinion in their place. See 2006 WL 2165725 (Tex.App.--Hous. [14th Dist.] Aug. 1, 2006), withdrawn by
2006 WL 3511723 (Dec. 7, 2006) withdrawn by 2007 WL 117447 (Apr. 19, 2007), withdrawn by __ S.W.3d __, 2008 WL 885955 (Tex.
App.--Hous. [14th Dist.] Apr. 3, 2008, n.p.h.). The court's original Altimore opinions held that Exxon had not breached a duty to a
household member of one of its workers as the risk of harm to that individual was not foreseeable. See id. Ultimately, the court sidesteps
the duty issue by acknowledging that the Texas Supreme Court has not dealt with "whether an employer has a legal duty (owed to the
spouse of an employee) to warn or prevent the employee from transporting toxic dust to premises occupied by the spouse." See 2008 WL
885955, at *1. In reaching its opinion, the court acknowledged that it assumed without deciding that Exxon breached its legal duty to
Mrs. Altimore. Id.
          12
             In recent years the courts and legislature have significantly slowed the pace of asbestos litigation in Texas through the passage
of Rule 13 of the Texas Rules of Judicial Administration (providing for Multidistrict Litigation for asbestos claims), Chapter 90 of the
Texas Civil Practice & Remedies Code (providing for the standards for asbestos and silica related claims in Texas), and the court's
rulings in Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) and Georgia-Pacific v. Stephens, 239 S.W. 3d 304 (Tex.App.--
Hous. [1st Dist.] 2007, writ denied).

Copyright 8 2008 Washington Legal Foundation                          4                                                    ISBN 1056 3059