Recently, the U.S. District Court for the District of Colorado recognized a defendant’s potential liability based on take-home exposure. In Mestas v. Air & Liquid Systems Corporation et. al., No. 18-cv-01006, Plaintiff alleged direct exposure and take-home exposure. Plaintiff alleged that his father was exposed to asbestos-containing products while working as a plumber and pipefitter, and that his father then carried asbestos home on his clothing which in turn, exposed Plaintiff to asbestos. Defendants filed a motion to dismiss, arguing that they owed no duty to Plaintiff based on take-home exposure. The question for the Magistrate Judge was “whether these Defendants owe a duty to family members who were directly subjected to take-home exposure.” The District Court, in adopting the Magistrate’s recommendations, held that “Colorado courts would not automatically and without regard to factual development reject Plaintiffs’ take-home exposure claim.”

The District Court based this holding on two reasons. First, the Court disagreed with Defendants’ contention that no legal duty existed because Plaintiff did not have direct contact with the asbestos-containing products. Even though Plaintiff was not a user or consumer of the products at issue, the complaint sufficiently alleged that he was in fact exposed to, and had direct contact with, asbestos fibers carried home from his father’s clothing.

Second, the Court disagreed with Defendant’s contention that no special relationship existed between Plaintiff and Defendants to impose a legal duty. The Court reasoned that strong public policy factors supported a finding of a cognizable claim. The Court discussed the risks associated due to the harmfulness of asbestos on human health, and was “not prepared to conclude that Defendants should not bear the burden of mitigating those risks.” The District Court denied Defendant’s motion, concluding that the proper course was to permit factual development beyond the motion to dismiss stage.

Defendants should be aware of this new development. Although the Colorado Supreme Court has not yet recognized take-home exposure liability, Mestas, can now be used to support future plaintiff’s take home exposure claims.

For more information on this case, please contact Kayla Foley or Jen Dlugosz. This article was published as part of the Toxic Tort Monitor. You can read the full edition here.

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Photo of Kayla Foley Kayla Foley

 

Kayla knew litigation was her pathway into the legal field after interning for a circuit court judge, and she regularly draws on that experience in her current practice. While closely observing multiple trials involving product liability and medical malpractice, she recognized that the courtroom was where she could put her skillsets to the best use. Kayla also brings prior experience working with a criminal defense firm and as a summer associate for Husch Blackwell, where she gained further exposure to civil litigation, product liability claims and intellectual property disputes.