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Click here for the full text of this decision FACTS:Louise Altimore’s husband, Mike, worked as a machinist for Exxon Mobil Corp.’s Baytown Refinery from 1942 to 1977. In 1972, his work transferred him into an air-conditioned tool room. Altimore was diagnosed with mesothelioma in April 2003. As mesothelioma’s only known cause is exposure to asbestos, Altimore sued Exxon, saying that she was exposed to asbestos dust from her husband’s work clothes. At trial, Dr. Richard Lemen testified for as Altimore’s epidemiologist expert witness. Dr. Gary Raabe testified as Exxon’s expert. Between the two of them, they gave a lengthy history of how scientists came to learn about the link between asbestos and asbestosis and mesothelioma. Lemen noted that some connection was known about by 1942 and that Exxon knew about early findings of cause and effect by 1937. The 1937 report Exxon relied on, however, dealt only with workers exposed to asbestos, not to “housewife bystander exposure.” Lemen also noted that in the 1960s, the first epidemiological studies in the United States connecting disease in workers who used asbestos end-products, as opposed to manufacturing asbestos products appeared. He also stated that the belief that asbestos exposure caused lung cancer was not universal until 1965. Lemen testified that 1972 was a crucial year in asbestos research, because it was then that, since exposure could lead to cancer, the focus became what constituted safe levels of exposure for workers. At the time, the Occupational Safety and Health Administration for the first time said that employers should be prohibited from allowing workers to take their work clothes home to be laundered. The idea that the asbestos exposure could affect those outside the workplace first gained traction in 1974, and it was around 1980 that there was evidence that refinery workers’ risk had double the risk of contracting asbestos-related diseases. A jury ruled in Altimore’s favor, and after settlement credits were factored in, Altimore was awarded $992,901 in exemplary damages. HOLDING:Reversed and rendered. The court says the whole case turns on whether Altimore’s injury was foreseeable to Exxon during the time period her husband worked at Exxon. The court adds that the relevant period is from 1942 to 1972, not 1977, because in 1972, Altimore’s husband moved into an air conditioned room where he was no longer exposed to asbestos. “Based on the evidence introduced during the trial, Exxon did not become aware of the take-home risk of asbestos exposure until 1972 when OSHA prohibited employers from allowing workers who had been exposed to asbestos to wear their work clothes home. Exxon was put on notice in 1972 that asbestos posed a risk to persons, such as employee families, who were never on the employer’s premises. It follows that in 1972 the risk to [Altimore] of contracting a serious illness had become foreseeable, triggering, for the first time a duty to protect [her] and those persons similarly situated. However, by that time, Mr. Altimore was working in the air-conditioned tool room and was no longer working in an environment where he was being exposed to asbestos dust. Accordingly, we conclude as a matter of law, Exxon did not owe a duty to [Altimore] and we sustain Exxon’s first issue on appeal.” OPINION:Anderson, J.; Anderson, Edelman and Seymore, J.J.

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