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An employer may not be held liable for a non-employee spouse’s secondhand exposure to asbestos, the Court of Appeals held Thursday in reversing an appellate panel. By a 6-0 vote, the court concluded that the Port Authority of New York and New Jersey owed no duty of care to a woman who was allegedly injured through laundering her husband’s asbestos-contaminated clothing for 30 years. The ruling, which reversed the Appellate Division, 1st Department, comes as great relief to business groups that had implored the court to overturn the midlevel panel, and as a great disappointment to advocates seeking to open a new avenue of relief to mesothelioma victims injured through secondhand contact with asbestos. Some state courts, such as one in New Jersey, had expressly adopted the 1st Department’s view while others, like one in Georgia, categorically rejected such reasoning. In Thursday’s opinion by Judge Susan Phillips Read, the court ruled that the Port Authority could not be held liable as either an employer or landowner and that it had no relationship with the woman, Elizabeth Holdampf, that might trigger culpability. The court reiterated its “reluctance to extend liability to a defendant for failure to control the conduct of others” and expressed concern that a contrary ruling would open a Pandora’s box of litigation. The judges said they were obligated to “consider the likely consequences of adopting the expanded duty urged by plaintiffs,” and indicated those potential consequences are more than they are willing to risk. “While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure in this case is rather low, experience counsels that the number of plaintiffs’ claims would not necessarily reflect that reality,” Read wrote. CONTAMINATED CLOTHING CASE The asbestos case involves John Holdampf, who worked as a Port Authority mechanic for three decades, and his wife, who washed his asbestos-contaminated clothing. Holdampf died of mesothelioma, a deadly cancer that most frequently affects people exposed to airborne asbestos fibers, one week after arguments were heard in this case on Sept. 13. Court records show that Holdampf handled asbestos products frequently in the various positions he held at the Port Authority. However, records also show that the agency issued five uniforms to Holdampf and provided laundry service to clean the garments. But about half the time, Holdampf wore his work clothes home, where Mrs. Holdampf washed them. At issue in the litigation was whether the Port Authority owed a duty of care to Mrs. Holdampf. A trial court dismissed her claim, citing Widera v. Ettco Wire and Cable Co., 204 AD2d 306 (1994), for the proposition that there is no statutory or common law principle that would extend a duty of care owed to an employee to someone who was neither an employee nor a laborer at the work site at issue. But the 1st Department reversed, only to be reversed by the Court of Appeals. Judge Read, twice observing that the Court of Appeals has never decided or even considered whether a manufacturer or supplier of a product containing asbestos is liable for third-party or secondhand exposure, declined to “upset our long-settled common-law notions of an employer’s and landowner’s duties.” She said the Port Authority had “no relationship” with Holdampf, “much less that of master and servant (employer and employee), parent and child or common carrier and passenger” that could trigger liability. Read also rejected the plaintiff’s argument that the Port Authority was in the best position to protect Mrs. Holdampf and could have required her husband to wear clean clothes home or could have warned her of the dangers in washing his clothes. “[T]he Port Authority was, in fact, entirely dependent upon John Holdampf’s willingness to comply with and carry out such risk-reduction measures,” Read said. But the plaintiff’s attorney, Erik Jacobs of Weitz & Luxenberg in Manhattan, said there is no indication the agency ever affirmatively advised Mr. Holdampf of the dangers of asbestos contamination, much less his wife. “The key thing, which I just feel the Court of Appeals is missing or that they are not giving enough credit to, is Mr. Holdampf was never told by the Port Authority that asbestos was dangerous,” Jacobs said. “It is a sad day. We the people want there to be a duty on those corporations and those entities.” Christian H. Gannon of Segal McCambridge Singer & Mahoney in Manhattan, counsel for the Port Authority, was not immediately available for comment. Chief Judge Judith S. Kaye did not sit on the case but, as usual, the court offered no explanation for her absence from this matter.

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