Weitz & Luxenberg attorney David Green is hailing an appellate court decision as a successful example of “fighting for the little guy” against a big…Read More
Weitz & Luxenberg Wins Fight for Families of Asbestos VictimsMay. 21, 2014
Weitz & Luxenberg is committed not only to offering the most aggressive trial representation possible, but also to achieving justice for our clients when trial courts unjustly turn away their cases.
Mesothelioma victim Johnny Kesner Jr.’s California suit is a case in point.
The defendant claimed it bore no responsibility for the mesothelioma Mr. Kesner contracted as a result of asbestos dust his uncle daily brought home on his work clothes.
The trial court bought that proposition and dismissed Mr. Kesner’s mesothelioma lawsuit.
That wasn’t just a pivotal moment for Mr. Kesner. It was a pivotal moment for all mesothelioma sufferers who have become ill from asbestos brought home on a family member’s work clothing.
If the trial court’s reading of the law stood, none would any longer have legal recourse in California for their disease.
We immediately appealed. And the California Appeals Court that heard our arguments was convinced.
It ruled that employers do have a duty to prevent foreseeable “take-home” asbestos exposure to their workers’ family members.
Because Mr. Kesner was entitled to have his day in court, the Appeals Court tossed out the lower court’s dismissal order.
It was a huge win for Mr. Kesner.
It was also a huge win for California mesothelioma victims exposed to “take-home” asbestos.
“This tremendously important decision creates a precedent that the state’s trial courts must follow,” said our Benno Ashrafi, who heads the Weitz & Luxenberg office in Los Angeles.
“This ruling gives mesothelioma victims secondarily exposed to asbestos brought home on the clothing of a family member much surer grounds upon which to sue,” he continued.
The decision was handed down by California’s First District Court of Appeals in San Francisco.
The case pitted 53-year-old Mr. Kesner against Pneumo Abex, LLC, a Virginia-based maker of brake systems and components for automobiles and trains.
As the appeals court noted, Mr. Kesner was 12 when he started visiting on a regular basis the home of his uncle. The young Mr. Kesner often stayed there overnight.
He stopped being a frequent guest around the time he turned 18.
During those years, his uncle was an employee of Abex.
Mr. Kesner testified that he recalled his uncle coming home from work with his clothes covered in brake dust.
His uncle usually didn’t change out of these contaminated clothes before engaging the youngster in play.
His uncle also sometimes fell asleep in his work clothes with Mr. Kesner mere feet away.
At age 49, Mr. Kesner learned the terrible news that peritoneal mesothelioma was growing and spreading within him.
He turned to Weitz & Luxenberg for legal help. Soon after, we brought suit on his behalf against Abex.
Just as the trial got underway in Alameda County Superior Court, Abex motioned for dismissal on grounds that it owed no duty of care to Mr. Kesner.
Abex argued that it only owed a duty of care to its employees — such as Mr. Kesner’s uncle.
Since Mr. Kesner — his uncle’s family member — was not an Abex employee, Abex owed him no duty of care. And since there was no duty, it could not be liable for secondary asbestos exposure.
The trial court judge agreed with that line of reasoning and immediately dismissed the case.
But we weren’t willing to give up the fight.
After conducting exhaustive legal research to uncover every possible argument in support of Mr. Kesner’s case, we ultimately persuaded the appeals court to reinstate the lawsuit.
The Appeals Court held that employers do in fact owe a duty to employee relatives if those family members are likely to be affected by asbestos brought home via contaminated work clothes.
The court found that although young Mr. Kesner was not a member of his uncle’s household in the conventional sense his frequent visits resulted in extensive contact with the uncle.
This made it foreseeable that Mr. Kesner would be at risk of harm from the workplace asbestos brought home by the uncle.
Along with several other factors California courts are expected to weigh in deciding whether a company owes someone a duty of care, the Appeals Court found that Abex owed Mr. Kesner a duty to prevent his take-home exposure to asbestos.
We’re optimistic that the next stop for Mr. Kesner’s case will be back to Alameda County Superior Court for trial—though this may not happen immediately.
Abex has threatened to appeal to an even higher tribunal — the California Supreme Court.
We welcome that fight. Our trial court and appellate team — led by Mr. Ashrafi and bolstered by high-powered Weitz & Luxenberg attorneys Cindy Saxey, and Josiah Parker, plus Ted Pellitier of Kazan, McClain, Satterley & Greenwood — are ready for the challenge. We’ll never give up the fight for justice for our clients.