In a case that has been labeled one of first impression, the wife of a victim of mesothelioma has prevailed after the defendant, Tennessee Valley Authority, moved to dismiss the case. The case was heard in the U.S. District Court for the Northern District of Alabama.
Barbara Bobo brought this lawsuit against nine defendants, eight of whom were dismissed pursuant to stipulation for dismissal leaving only her claim against the Tennessee Valley Authority (TVA). The plaintiffs were the co-personal representatives of the estate of Barbara Bobo who maintained a variety of claims against the TVA based on her contraction of pleural mesothelioma from washing her husband’s work clothes. It was alleged that the work clothes contained asbestos dust originating from his job duties at TVA’s Browns Ferry Nuclear Power General Facility in Limestone County, Ala.
In this case, the principle issue was the causation of her contraction of mesothelioma. Before the court was a motion to exclude specific causation opinions of doctors. The motion to exclude the specific causation opinion was found to be moot and the motion to exclude specific causation opinion of another doctor was denied.
TVA contends that the testimony of Dr. Virginia Wells Wulsin should be excluded because she failed to consider other potential exposure sources, and she “failed to bridge the analytical gap” between her opinions in this case and the scientific evidence upon which she relied. The plaintiffs agreed that Dr. Wulsin “will not testify that Barbara Bobo’s mesothelioma was specifically caused by her exposure to asbestos originating at TVA.” Accordingly, the court found that TVA’s motion to exclude Dr. Wulsin’s specific causation opinion is moot.
The lawsuit itself arises out of the fact that James Bobo, Mrs. Bobo’s husband, worked for the TVA as a laborer at the plant from April 15, 1975 to Sept. 7, 1997. During that time, TVA used thermal pipe coverings, insulation, roofing cement, packing materials and gasket packing materials containing asbestos. It was found that Mr. Bobo did not change his clothing before he left work each day; instead, he came home each day wearing the same clothes he had worked in.
Barbara Bobo alleged that she was subjected to an excessive quantity of asbestos while washing her husband’s clothes. She did this at least twice each week during the years he worked for TVA.
Mrs. Bobo had no personal knowledge that Mr. Bobo’s clothing contained asbestos fibers and she never testified that there was asbestos in her residence. Mrs. Bobo was diagnosed as suffering from “pleural mesothelioma” in November 2011. She died two years later.
Aside from the expert testimony, the court said that the outcome of the case hinged on the negligence elements of duty, causation and proximate cause. The court found that TVA did owe a duty to Barbara Bobo. Two other states, California and Georgia have found that there was no legal duty owed to non-employees in take-home exposure cases.
However, the federal district court relied on a Tennessee Supreme Court case in Satterfield v. Breeding Insulation Co., 266 S.W. 3d 347, 371 (Tenn. 2008), which recognized that there was no danger to the business community in finding that a sophisticated employer that was aware of the risk from exposure to asbestos fibers knew that an employee’s work clothes contained asbestos fibers and understood the danger of transmitting asbestos fibers to others owed a duty to family members in take-home exposure cases.
The court found that there was no other explanation that James Bobo’s exposure to asbestos while working at TVA was the reason that Mrs. Bobo was also exposed to the same asbestos fibers. The court held that the TVA’s breach of duty was the cause of Barbara Bobo’s mesothelioma.
TVA had urged this court to apply the but-for causation standard rather than apply the substantial factor standard for causation. The court reasoned that the but-for standard that the TVA asserted appeared to be the minority position in asbestos cases. The court reasoned that TVA’s position does not “recognize the proof difficulties that the accompanying asbestos claims. The long latency periods for asbestos-related diseases, coupled with the inability to trace precisely which fibers caused the disease and from whose product they emanated, make this process inexact.” Citing Borg-Warner Corp. v. Flores, 232 S.W. 3d 765, 772 (Tex. 2007).
The court found that the plaintiff’s expert who testified that there is no known threshold or safe level of asbestos exposure, and “a documented history of brief or low level exposure is sufficient to consider mesothelioma as asbestos induced.” The plaintiff’s expert also gave testimony that “it is the totality of significant exposures to asbestos that is the cause of the disease.”
Based on these findings, the court reasoned that the plaintiffs presented sufficient evidence to establish that Barbara Bobo’s exposure to asbestos from theTVA plant was a substantial factor in bringing about her mesothelioma and, consequently, the proximate cause of her injury and death. The court accordingly denied TVA’s motion for summary judgment.
Estate of Barbara Bobo v. Tennessee Valley Authority, No. CV 12-S-1930-NE, August 25, 2014.
Kreisman Law Offices has been handling wrongful death cases, mesothelioma cases, asbestos-related cases, work injury cases, construction site accident cases and truck accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Flossmoor, Homewood, Hinsdale, Wheaton, Rosemont, Richton Park, Chicago Heights, Chicago Ridge, Evanston, Skokie, Niles, Des Plaines, Morton Grove, River Grove, Park Ridge, Park Forest, Forest Park and Oak Forest, Ill.
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