The majority of a sharply divided Virginia Supreme Court, addressing a question of law posed by a federal judge in the state, has ruled that an employer using asbestos products in its workplace has a duty of care to nonemployees exposed to asbestos-tainted clothing.
In a 4-3 ruling, the majority on Thursday said that while there’s little precedent from the courts or guidance from the state legislature on the issue, it was clear that if the employer knows or should have known that employees’ clothing dusted with asbestos could be handled by others, there is a clear duty of care.
“This duty is not abstract: a specific course of conduct gives rise to a specific duty extended to specific persons,” wrote Senior Justice LeRoy Millett Jr. for the majority in Quisenberry v. Huntington Ingalls.
Justices William Mims, Cleo Powell and Stephen McCullough joined in the ruling.
Chief Justice Donald Lemons issued a dissent, which was joined by Justices Elizabeth McClanahan and Denham Kelsey. McClanahan also issued a separate dissent, which Lemons and Kelsey joined.
The court agreed to hear the case at the request of U.S. District Judge Arenda Allen of the Eastern District of Virginia, sitting in Newport News. Allen asked the court to answer whether Virginia law mandates that employers owe a duty of care to nonemployees who become ill after coming into contact with employees’ asbestos-covered clothing.
The lawsuit will now return to Allen.
The lawsuit was filed by Wesley Quisenberry, the son of Wanda Quisenberry, who died as the result of complications from mesothelioma, which is caused by exposure to asbestos.
Wanda Quisenberry was diagnosed with mesothelioma in December 2013, and died three years later, according to the opinion.
Wanda’s father was a man named Bennie Plessinger, who worked for Newport News Shipbuilding and Dry Dock from 1942 to 1977. The shipyard is now owned by Huntington Ingalls and is the largest shipbuilder for the military in the United States.
During the years that Wanda Quisenberry lived with her father, she cleaned his asbestos-covered clothes on a regular basis before eventually being diagnosed with mesothelioma, the suit alleges.
After she died, her son, Wesley Quisenberry, filed a lawsuit against the company, claiming that the company failed to warn employees that they should not wear asbestos-covered clothing home, that there was no education offered about the dangers of asbestos, and that there were no services provided at the work site for employees to clean themselves. The suit alleged negligence, and wanton and willful misconduct.
The company has contended that, under Virginia law, it does not owe a duty of care to anyone with whom it is not directly associated.
The Supreme Court majority disagreed.
The lack of a direct relationship is “not … dispositive to the existence of a duty,” Millett said. The duty of care can extend to “those within reach of defendant’s conduct.”
“The … hazard created by the Shipyard—asbestos dust—was allegedly released through the Shipyard’s course of conduct and moved to place Wanda in danger,” Millett said.
The dissenters said the majority went too far in establishing a duty of care to nonemployees.
“The opinion adopts the concept of duty to mankind generally, and empty duty ‘owed to all the world,’ and is unprecedented in Virginia,” Lemons said.
Added McClanahan: “In short, the take-home duty recognized by the majority is a newly created duty … that is wholly unsupported by our precedent.”
One of the estate’s lead attorneys, Jonathan George, said he was pleased with the ruling.
“It’s consistent with our understanding of the employer’s responsibility to nonemployees, at least in regard to asbestos,” said George, of the Richmond office of Waters Kraus & Paul.
Huntington Ingalls’ lead attorney, Wendy McGraw of the Norfolk office of Hunton Andrews Kurth, did not return a call seeking comment.