A California court recently held that a mesothelioma-based loss of consortium claim could be brought on the basis of pre-marital asbestos exposure. Loss of consortium claims are frequently brought by the spouses of mesothelioma sufferers against the manufacturers of asbestos products. The underlying theory of a loss of consortium claim is that the development of mesothelioma harms a cancer sufferer's spouse by diminishing the quality of their sick spouse's companionship.
Loss of consortium claims were first recognized by the California Supreme Court in 1974. The court held that loss of consortium claims were independent torts that did not depend on the success of the injured spouse's personal injury claim.
"Each spouse has a cause of action for loss of consortium caused by a negligent or intentional injury to the other spouse by a third party," Justice Richard M. Mosk wrote for the majority, adding that it is reasonable to expect that an adult will be married and that his or her spouse will suffer a personal loss if the partner is severely disabled.
Generally, loss of consortium claims do not arise for injuries that predate a marriage because there was no consortium to be damaged at the time of the injury. An exception arises in mesothelioma cases, however, because mesothelioma is a latent, progressively developing disease. Mesothelioma is unlike other definable injuries such as car accidents because the latency period can span decades. This makes it legally and medically impossible to determine the exact date in which mesothelioma began to develop in a person.
The U.S. Supreme Court has noted that toxic tort cases are entirely different from traditional "snapshot" injuries and that a toxic tort injury "accrues" for the purposes of litigation. The key question in a mesothelioma loss of consortium claim, therefore, is when the mesothelioma sufferer first became aware of his or her cancer. If this occurs after the marriage began, then the victim's spouse would have an actionable loss of consortium case.
An asbestos manufacturer can therefore be held liable for a loss of consortium claim even if a mesothelioma sufferer marries long after initially being exposed to asbestos. This is because companies have a duty to exercise reasonable care and know that their failure to do so makes it reasonably foreseeable that an individual will develop mesothelioma. It is also reasonably foreseeable that a person who is exposed to asbestos will be married when the mesothelioma manifests itself.
Source: Leonard v. Crane, 206 Cal.App.4th 1274, Court of Appeal, First District, Division 5, California.