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Calif. appeals court doesn't expand liability in take-home asbestos lawsuits

Legal Newsline, July 19, 2017

By: Chandra Lye

LOS ANGELES (Legal Newsline) – A California appeals court has declined to expand asbestos liability in take-home exposure lawsuit.

The July 5 decision upheld a previous decision in the case of Joseph Pepitas v. Ford.

Peptitas and his wife, Marline, sued the car company - along with Exxon Mobil Corp., Rossmoor Corp. and others - claiming that Marline’s mesothelioma was caused by exposure to asbestos.

Joseph Peptitas worked on premises that were owned by the defendant, and Marline Peptitas alleged she was exposed to asbestos when she visited him at work and through fibers that were on his clothing. He has also filed a claim of loss of consortium.

A summary adjudication narrowed down the case just to Exxon and Ford, and a jury decided in favor of Exxon and Ford. It also granted a nonsuit for Rossmoor.

However, in his appeal, the plaintiff argued that the lower court erred by granting an adjudication in Exxon's favor and by granting a nonsuit to Rossmoor. He claimed the jury was not properly explained design defects involving Ford, and he claimed the jury’s decision was not supported by the evidence.

However, the appeals court upheld the decision, something one top lawyer said adhered to California Supreme Court precedent.

“The holding suggests that the 2nd District Court of Appeal is adhering to recent California Supreme Court precedent rather than looking for opportunities to incrementally expand asbestos liability for so-called take-home exposure claims or by chipping away at the 'O’Neil doctrine' in broad terms,” Shook Hardy & Bacon attorney Mark Behrens told Legal Newslinein an email.

One of those precedents was set in Kesner v. Superior Court (2016), according to Behrens.

The ruling “held that an employer may be subject to liability in some circumstances for asbestos claims brought by family members exposed to asbestos in the home through contact with an occupationally exposed worker,” he explained.

“The court of appeal chose not to expand Kesner to accommodate the plaintiff’s claim," Behrens said. Instead, the court of appeal said that her claim “appears to be exactly what the [California] Supreme Court was attempting to avoid with [its] bright-line rule.”