‘Take-home exposure’ fuels wave of asbestos lawsuits

Julie Gundlach plays with her daughter, Madeline Young, 7, at their home in St. Louis, Mo. Gundlach has mesothelioma — a disease caused by exposure to asbestos, which many believe she contracted by secondary exposure — her father was an electrician in Madison County, Mo.

EDWARDSVILLE, Ill. — Growing up, the laundry room in Julie Gundlach’s home doubled as a playroom.

And that’s where the 39-year-old figures she got the disease that will almost surely kill her.

Gundlach has mesothelioma, a fast-acting cancer that is always fatal, generally taking a life within six to 18 months of diagnosis.

The disease is caused by exposure to asbestos. Gundlach, though, never worked with asbestos, like many mesothelioma patients, who typically were auto mechanics, welders, electricians, plumbers, pipefitters, plasterers, refinery workers, shipbuilders and other industrial employees.

Gundlach worked at restaurants and as an employee recruiter. But her dad was an electrician who worked at job sites across the region.

“He’d come home and put his dirty clothes in the laundry room, which was our playroom,” Gundlach said.

Her case represents what local lawyers and judges say is becoming a common accusation in asbestos lawsuits: take-home exposure.

They’re cases where, say, someone often shook the dust off a spouse’s dirty work clothes before laundering them. Or where a child often hugged dad and spent time sitting on his lap after he returned home from work.

It’s sometimes called secondary, second-hand or off-site exposure.

“There are a lot of those cases,” said Circuit Judge Daniel Stack, who handles Madison County’s well-known docket of asbestos lawsuits. The county, long labeled a venue-shopping destination, handles about one-fourth of the nation’s mesothelioma lawsuits.

Stack thinks take-home exposure is one of the reasons the number of asbestos lawsuits in Madison County is on the increase. In the early 2000s, there were more than 800 cases filed annually. The number dropped significantly in subsequent years, as low as 325 in 2006, but went up again in 2009, to 814. This year, there were 421 suits filed in the first six months, putting the county on pace for more than 840 in 2010.

In the United States, asbestos lawsuits nowadays often are filed against employers that had asbestos in the workplace, rather than just the makers of asbestos and products that contain asbestos. Many of the manufacturers are bankrupt.

In cases against employers, the issue of take-home asbestos exposure presents a whole new realm of potential liability for companies. A company clearly has a duty to keep its employees safe, but does a company also have a duty to protect workers’ family members, away from the workplace?

“I think you have a duty owed to the people at home,” Stack said.

Still, in May 2007, Stack ruled in favor of CSX Transportation in a lawsuit brought by the estate of Annette Simpkins of Granite City. The suit claimed Simpkins developed mesothelioma because she had exposure to asbestos through contact with her husband’s body and clothes. Her husband worked for the railroad.

The railroad argued that Illinois courts never before held that employers had a duty to protect family members from take-home asbestos exposure.

Stack told the parties: “I have to be candid with you. It sounds like a great argument for the Supreme Court.”

In June, the 5th District Appellate Court in Mount Vernon sided with the estate of Simpkins, who died of her mesothelioma in April 2007. The court ruled the railroad knew or should have known that asbestos brought home by its employees was a risk to their family members.

Both Gundlach and the Simpkins estate have been represented by The Simmons Law Firm in East Alton, which specializes in mesothelioma cases. Ted Gianaris, a partner at the firm, said take-home exposure is typically not as concentrated as exposure in the workplace.

“It seems as though the data shows that people who had lower exposures take longer to develop mesothelioma, so we’ve seen a lot of family and children of workers exposed in the home, people exposed as bystanders, and we didn’t see that as much 10 years ago. That’s a lot of the cases we’re filing now,” Gianaris said.

Gianaris sees U.S. asbestos exposure lawsuits as having come in three waves:

• Those who were exposed while mining it or making it into a product.

• Those who were exposed while working around it or with it in various jobs as technicians or laborers.

• Family members of workers.

“The third wave seems to be their family members — their wives, children, even their parents. The primary way is through the laundry,” Gianaris said.

His firm had another case of a woman whose father worked at a factory, milling and shaping asbestos-containing boards.

“He got the asbestos on his clothing and brought it home, unbeknownst that he was poisoning his family. His little girl, knee-high at the time, would come hug him, hang out with him. Lo and behold, 30 years later, she develops mesothelioma,” Gianaris said. “That’s typical second-hand mesothelioma — child or wife.”

He added, “It’s been known for decades that this particular deadly dust doesn’t recognize job classifications or differentiate between workers and family members. If you can breathe the dust, you can get sick.”

Gundlach’s diagnosis came after she suffered some digestive problems. Tests showed a mass in her pelvis, and doctors figured it was ovarian cancer. When they removed the mass in August 2006, they discovered it was mesothelioma in her abdomen.

“The doctors basically said, ‘It’s not very responsive to treatment. We’ll throw some chemo at it and see what happens, but you should probably go home and put your affairs in order,’ ” Gundlach said.

She found a doctor in New York who, using aggressive treatments, is seeing “tremendous success rates, comparatively speaking,” with some patients still alive five years after diagnosis, Gundlach said. She’s been to New York 24 times for surgeries, chemotherapy treatments and other procedures, and hopes she’ll somehow be a one-in-a-million survivor.

“It’s been pretty horrific, but it’s a sharp cry better than putting your affairs in order,” Gundlach said.

Gundlach’s older sister and mother seem to have no asbestos-related health problems. Gundlach’s father died of lung cancer in 2005.

“They didn’t even really look for mesothelioma. There was no biopsy,” she said. “They basically diagnosed him and said he’s terminal, and that was that. He was cremated. In hindsight and in light of my diagnosis, we think it was actually mesothelioma.”