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Plaintiffs not required to preserve victims’ lung tissue

Congratulations to my friend and colleague Mona Wallace who obtained a very important decision form the Federal Judge in charge of all asbestos litigation in the federal system nation wide.

This order is exciting and has several findings in it which may help all of us. This case involves the Alcoa plant in Tennessee where John Millsaps worked bringing home asbestos dust on his clothes. Tragically his young daughter-in-law, who spent much time at his home as she was dating his son, was unknowingly exposed to this dust. It was not until long after in her 40s, that she fell ill with mesothelioma. Alcoa moved for summary judgment arguing 1) that plaintiffs have a duty to allow an autopsy and preserve lung tissue, 2) that there is no household exposure duty, 3) that plaintiff must quantify levels of exposure and identify in great detail all asbestos products and 4) that plaintiffs’ experts do not meet Daubert on causation and IH issues.

Alcoa argued Plaintiff had a duty to preserve lung tissue and that Plaintiff “destroyed” evidence by failing to preserve Decedent’s lung tissue by way of autopsy or otherwise. On the duty issue, Alcoa argued that it did not owe a duty because Brenda did not live with John Millsaps, because her exposure started in 1978 after the plant supposedly started cleaning up, and because after 1978, it was not foreseeable that there was a risk of take-home exposure because OSHA was in place and Alcoa said we failed to produce evidence that John Millsaps was exposed to asbestos levels above OSHA standards. Also, Alcoa argued there were no epidemiological studies showing that a machinist like John Millsaps could be exposed to asbestos in harmful amounts.

On the lung tissue issue, Judge Robreno applying Tennessee law found that “Defendant does not present any evidence that Plaintiff deliberately took steps to destroy evidence. More importantly, Defendant does not cite to any authority for its contention that Tennessee law required Plaintiff to preserve Decedent’s lung tissue.” Further, “The Court notes that it is not aware of any jurisdiction in which preservation of lung tissue is required in an asbestos action.” This is an excellent ruling for anyone dealing with autopsy/lung tissue issues.

On Alcoa’s motion to strike the IH expert (Vernon Rose), Judge Robreno found that “Defendant has not cited any authority under Tennessee law that requires Plaintiff to provide expert testimony to establish causation.” Further that “Plaintiff has identified sufficient evidence to survive summary judgment without relying upon the expert testimony of Vernon Rose.”

On the duty issue, the Court found that under the prior Tennessee case of Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008), which was our case as well for another Alcoa household mesothelioma, a duty was owed. “Nothing in Satterfield requires that a person subjected to ‘take home’ asbestos exposure be a resident of the same household as the Defendant’s employee in order for there to be a duty of care owed by the Defendant to that person. Rather, Satterfield specifically holds that the class of ‘foreseeable’ people to whom a Defendant such as Alcoa owes a duty includes ‘persons who regularly and for extended periods of time came into close contact with the asbestos-contaminated work clothes of Alcoa’s employees.'”

On the issue of quantifiable levels and OSHA standards, Judge Robreno said “Nothing in Satterfield requires Plaintiff to present evidence of asbestos levels in relation to OSHA standards, or to provide epidemiological studies showing that certain classes of workers (or their household members) were at risk of being exposed to asbestos.” The Court also said, “the Court notes that Defendant has failed to identify any source requiring Plaintiff to establish the amount of asbestos released from products with which John Millsaps works. It is clear from Satterfield that there is no such requirement and that, in fact, an employee need not have brought home asbestos from a product with which he or she directly worked.” Finally, Judge Robreno found, “Plaintiff has identified sufficient evidence from which a reasonable jury could conclude that Decedent was exposed to respirable asbestos brought home from the Alcoa facility on the clothes of John Millsaps (including from products with which he worked).”

The Case number is 2:10-cv-84924-ER, E.D. PA. On Pacer you can also access the very voluminous briefing that was filed.

Chris Placitella has been handling asbestos cases in New Jersey and Pennsylvania for over 30 years. Call 215-987-2019 for a free consultation.

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