In Perkins v. United States, Plaintiff Tristan Perkins sued the United States under the Federal Tort Claims Act (“FTCA”) for her mother Geraldine Perkins’ (“Decedent”) alleged wrongful death due to asbestos exposure. Alleging “take home” asbestos exposure, Plaintiff claimed Decedent was exposed to asbestos through being around her husband and performing his laundry. Mr. Perkins worked as a machinist’s mate for the U.S. Navy at the Puget Sound Naval Shipyard from 1968 – 1974.
Prior to trial, basing the ruling on the FTCA’s discretionary function exception, the Court dismissed “[c]laims based on events arising before March 1970; claims based on the Navy’s [alleged] failure to provide” the injured party with protective equipment like a dust respirator, laundry service, and/or a place to shower and/or change; and claims based on the Navy’s failure to warn of para-occupational and environmental asbestos exposure hazards.” Indeed, Plaintiff conceded the United States’ immunity from all claims arising before March 1970. The case proceeded to a bench trial in June, 2024, and the Court rendered its written decision on December 27, 2024.
State law controls liability under the FTCA, and courts in Washington use the “substantial factor” test to determine causation in asbestos cases. The substantial factor test requires the plaintiff to demonstrate “a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.” See Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 855-56 (9th Cir. 2019). Looking to Lockwood, the Court recognized that “the ‘peculiar nature of asbestos products and the development of disease due to exposure to such products’ creates difficulties in establishing the precise party of exposures that caused the harm.” 744 P.2d 605, 613 (Wash. 1987).
The Court considered expert testimonies, noting that take-home exposure was minimal and environmental exposure was “immeasurably low.” The Court highlighted that asbestos fibers must be airborne to pose a risk and that Decedent’s potential exposure was not significantly above background levels. Regarding the work of Decedent’s husband, the Court found that, as a Machinist’s Mate First Class, he was in a supervisory or managerial role and therefore “he would not have performed insulation rip-out or been working with or near asbestos-containing products when he was present at the Shipyard after March 1970.” Regarding Decedent’s alleged environmental exposure, Decedent lived 1.5 miles from the dry dock at Puget Sound Naval Shipyard. As such, “any asbestos concentration that may have been released from that point would be “immeasurably low” at her home.”
Plaintiff’s expert Richard Kradin’s opinion on specific causation was found by the Court to be unreliable given the lack of factual support and methodology. Specifically, “Dr. Kradin assumed that Geraldine was exposed to asbestos above the threshold level because her husband worked as a Machinist’s Mate and she resided near the Shipyard.” Dr. Kradin did not however attempt to “characterize or estimate Geraldine’s actual exposures between 1970 and 1974, let alone her exposures from actionable conduct.” Further, the Court noted that Dr. Kradin “did not consider the extent to which” Decedent’s prior radiation therapy (2010) contributed to her mesothelioma diagnosis (2020). Finally, the Court found unreliable Dr. Kradin’s “specific causation opinion that every exposure above the background level was a substantial contributing factor to [Decedent’s] “cumulative dose” of asbestos…because it lacks sufficient factual support and is not grounded in data or reliable methodology.
Perkins emphasizes the burden on plaintiffs to establish causation, specifically where para-occupational and/or take-home exposures are assumed without further evidence. The decision also serves as a reminder that federal courts may be unwilling to accept bare assumptions of exposure as well as the “every exposure” and “cumulative dose” arguments.