A recent California appellate decision (Jonnie Lee Pounds v. Crane Co., May 2007) upheld the loss of consortium claim for the wife of a mesothelioma victim poisoned by asbestos. The corporate defendant, Crane Company, argued that since the victim's exposure to their product ended in 1959, and since the victim and his wife didn't get married until 1985, the wife couldn't claim loss of consortium. This specious argument tried to unfairly apply settled law-that loss of consortium claims must be based on a marriage that existed at the time the claim arose-to the unique situation of mesothelioma patients in order to avoid paying legitimate damages.

The reason for the traditional law is that negligent acts and the ensuing injury are almost always closely contemporaneous. If a victim is injured before marriage, his spouse cannot claim that the pre-marital injury deprived her of marital consortium, as both were unmarried and were aware or should have been aware of the injury. The key is that the negligence and the injury happen close together.

The obvious injustice in applying this reasonable law to mesothelioma victims is that the negligent act (being forcibly exposed to asbestos) can be separated from the actual manifestation of injury by as much as 70 years due to the long latency period associated with mesothelioma. Neither husband nor wife will have any inkling that an injury has taken place. In the context of mesothelioma it is extremely difficult to say when the injury occurs. Citing a previous case, the court said that mesothelioma "is a latent, progressively developing disease--decades can often pass between the time a person is first exposed to asbestos and the time he first develops a cancerous mesothelioma tumor. Moreover, although early formation of undetected cellular changes ultimately leads to contraction of the disease, it may be years before the cancerous cells will result in a tumor large enough to be detected, be medically diagnosed, or cause symptoms of the disease.No temporally discrete event exists that encompasses the defendant's breach and the plaintiff's injury." Buttram v. Owens-Corning Fiberglass Corp. (1997) 16 Cal. 4th 520, 529.

The court concluded that because of the time gap between negligent act and actual injury, the victim's wife could claim loss of consortium.

*** POSTED MAY 18, 2007 ***