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Asbestos Ruling Shuts the Door on Secondary Exposure Cases

Carolyn Miller had no direct relationship or contact with Ford Motor Co. other than through her stepfather, whose employer was contracted to do some work at a Ford plant. In the legal terms, that made Miller a "third party."

But when she died of lung cancer, her estate sued Ford. Miller's lawyers took the position that she contracted the disease after washing her stepfather's clothes from time to time during the 11 years he worked at an asbestos-tainted Ford facility in Michigan.

Ford, the plaintiffs maintained, had a duty to protect Miller from secondary exposure to asbestos. But in a decision critical to asbestos-related jurisprudence, a closely divided Michigan Supreme Court ruled the company had no such duty.

"A decision to the contrary would have created an unworkable burden because it would have cast business in the impossible position of protecting everyone with whom an employee or even an independent contractor had come into contact," says Karen Harned, executive director of the NFIB Legal Foundation, a Washington-based legal resource group for small businesses that intervened in Miller v. Ford.

Ford's Duty
Miller's estate originally filed suit in Texas soon after her death in 2000. The suit claimed she had contracted the deadly lung cancer mesothelioma after washing her stepfather's work clothes between 1954 and 1965. During that period, he had worked at Ford's Rouge Plant in Dearborn, Mich., as the employee of an independent contractor Ford had hired to reline the interiors of blast furnaces with materials that contained asbestos. Miller, who was diagnosed with lung cancer in 1999, had never been in or near the plant.

Asked to decide whether Ford had a duty to use "ordinary care" to protect someone in Miller's position, a Texas jury awarded $9.5 million to the plaintiffs. Ford moved for judgment notwithstanding the verdict, but the trial judge denied the motion.

Ford appealed to the 14th District Court of Appeals of Texas, where there was no dispute that the substantive law of Michigan governed Miller's claim. At Ford's request and over the plaintiff's objections, the appeals court asked the Michigan Supreme Court to decide whether Ford had a legal duty to protect Miller "from exposure to any asbestos fibers carried home on the clothing of a member of Carolyn Miller's household who was working on that property as the employee of an independent contractor."

The Michigan Supreme Court granted the request, heard oral argument and decided by a 4?? 1/2 3 majority that Ford had no such duty.

"We were extremely pleased to see that the Michigan Supreme Court agreed with our position that the relationship of the parties is an important consideration when applying liability in these kinds of lawsuits," Harned said.

Indeed, as the majority saw it, the relationship of the parties was "the most important factor" in determining whether a duty existed.

Unworkable Burden
"The ultimate inquiry in determining whether a legal duty should be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty," the majority stated.

In addition to the relationship of the parties, other relevant considerations included the foreseeability of the harm, the burden on the defendant and the nature of the risk presented. Liability didn't inure unless both the necessary relationship and the foreseeability of harm existed. If they did, the court would go on to assess the burden on the defendant and the nature of the risk to determine whether to impose a duty.

Here, the relationship between Miller and Ford was "highly tenuous," which strongly suggested no duty should be imposed.

"Defendant hired an independent contractor who hired [her stepfather] who lived in a house with Miller, his stepdaughter, who sometimes washed his clothes," is how the majority summarized the relationship.

Similarly, the court argued that it would impose "an extraordinarily onerous and unworkable burden" on a defendant to protect every person with whom a business' employees and independent contractors came into contact.

And while the "nature of the risk"--the causal relationship between asbestos and lung cancer--was serious and suggested the imposition of a duty, the "foreseeability" test was not satisfied because the hazards of asbestos were unknown when the stepfather worked at Ford.

In these circumstances, the court concluded, imposing a duty would "expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs."

Corporate Victory
Not surprisingly, Ford is pleased with the court's decision.

"The majority got it absolutely right," says Ford spokesperson Kristen Kinley. "The risk was not known or foreseeable to Ford and was not something that Ford could prevent since [the stepfather] worked in many other places."

But the real winners are defendants in general.

"Over the past 30 years, asbestos litigation has spread from asbestos producers to a variety of different industries that may have had only remote relationships to plaintiffs," says Thomas Ludden, a partner with Lipson, Neilson, Cole, Seltzer & Garin. Ludden filed an amicus brief supporting Ford on behalf of the Pacific Legal Foundation, a California-based private property rights advocacy group.

"Finally, we're starting to see some lines drawn that may indicate the beginning of the end for this type of litigation," he says.

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Julius Melnitzer

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