California Appellate Court Muses that Secondary Exposure Claims May Be Valid
In a recent published opinion the California Court of Appeal, Second Appellate District opined that for a wife to pursue a claim against her husband’s employer for so-called take home exposures, her complaint should specify the chemicals involved and injuries alleged. (Oddone v. The Superior Court of Los Angeles County, Cal. Ct. App., No. B213784, Nov. 24, 2009).
The plaintiff had alleged that she was secondarily exposed to chemicals from her husband and his work clothes. She also asserted claims on behalf of her husband for his personal injuries which remain pending. Her husband had worked for 33 years processing motion picture film for Technicolor Inc. She specified in her complaint her husband’s injuries (glioblastoma multiforme and skin rashes) and specific chemicals that allegedly harmed him (formaldehyde and perchloroethylene), but she made vague allegations regarding her own personal injury claims against Technicolor. She alleged that she was injured from chemical substances that her husband brought home with him either on his body or clothes but failed to identify her specific injures or chemicals that caused her harm.
The defendant moved to dismiss her secondary exposure claim on the basis that it owed no duty to its employee’s wife. The trial court agreed and this appeal ensued.
The appellate court acknowledged that “[t]here appears to be no reported California decision addressing the scope of the defendant’s duty in a case where the plaintiff claims to have been injured as a result of secondary exposure to chemicals.” However, the court continued that “[g]iven appropriately specific allegations, this may be quite possible.”
The court explained that in this case “petitioner’s allegations simply do not establish any connection, much less a close connection, between the defendant’s conduct and her alleged (and unspecified) injuries.”
According to the court, a “close connection” is required because under Rowland v. Christian, 69 Cal.2d 108 (1968), it is one of several significant factors to consider when determining whether a duty exists to an injured party in this circumstance. Although the Rowland factors are to be balanced against one another, the court stated the “close connection” factor is especially important in a secondary exposure suit.
“That connection is only shown by setting forth specifically which chemicals cause which specified injuries,” said the court. “In a secondary exposure case, the allegation that as a result of the exposure the specified chemical entered the plaintiff's body is of particular importance. Central issues in such a case are whether secondary exposure to a specified chemical is even possible and, if it is, whether the exposure will result in the ingestion of the chemical into the plaintiff's body.”
As the plaintiff failed to identify a specific chemical or to specify any one of her alleged injuries she could not “connect any specified chemical or chemicals to a specific injury or injuries” and so, in this case, her take home claim failed.
