Mesothelioma Victim has a Valid Claim for Loss of Consortium

A very important legal issue related to loss of consortium claims in latent injury cases was recently clarified by the 2nd District Court of Appeal in [Vanhooser v. Hennessy Industries Inc.], 2012 DJDAR 7307 (Cal. App. 2nd Dist. June 1, 2012). A three-judge panel unanimously ruled that Sherrell Vanhooser, the wife of a mesothelioma victim, has a valid claim for loss of consortium with her husband even though their marriage took place after the victim was exposed to the substance that ultimately caused her husband’s disease. Mesothelioma is a debilitating, deadly form of cancer caused by asbestos exposure. This is an important ruling that will have far-reaching impact in asbestos litigation, as trial courts across California have been all over the map on this issue. Husbands and wives are greatly impacted when a spouse develops an asbestos-related disease, so this ruling certainly moves them one step closer to justice.

Frederick Kenney of Fort Jones sued Tennessee-based auto parts manufacturer Hennessy Industries Inc. and other companies for negligence and products liability for exposing him to asbestos that resulted in his diagnosis of mesothelioma in 2011. He was exposed to asbestos during his service in the U.S. Navy in the 1960s and when he later worked as a mechanic. His wife, Sherrell Vanhooser, filed a loss of consortium claim against the same defendants. Vanhooser and Kenney were married on December 31, 1991, almost 20 years before his diagnosis with this fatal disease.

Until recently, state courts inconsistently applied the law on loss of consortium claims in latent injury cases. Mesothelioma is a latent disease, meaning the victim doesn’t develop the cancerous tumor until decades after exposure to asbestos. Vanhooser’s claim for loss of consortium was rejected at the trial court level in a motion for summary judgment because she was not married to Kenney at the time of his exposure to asbestos, though the court indicated it was “troubled” by the result and invited appellate review. This ruling was based entirely on the decision in [Zwicker v. Altamont Emergency Room Physicians Medical Group] (2002) 98 Cal.App.4th 26, which held that a spouse did not have a valid claim for loss of consortium if he or she was not married to the victim at the time of the injury producing event.

[Zwicker] is a classic example of bad facts making bad law. In [Zwicker], a husband and wife sued various health care providers who allegedly caused the loss of the husband’s testicle resulting in his infertility. Mrs. Zwicker married her husband almost one year after his injury and brought suit two weeks after the marriage. Three separate tests conducted before their marriage concluded that the Mr. Zwicker was infertile as a result of the injury. The wife’s sole claim was for loss of consortium. In an effort to save her claim for loss of consortium, Mrs. Zwicker claimed that she knew that her husband was infertile at the time of their marriage but she did not know that infertility was permanent. The [Zwicker] court correctly affirmed the underlying court’s granting of summary judgment disposing of her claim for loss of consortium.

Unfortunately, that court’s holding has since been expanded to the detriment of spouses in latent injury cases. Several courts in California have relied on [Zwicker] in rejecting loss of consortium claims in mesothelioma cases where the spouse was married at the time of injury but not at the time of the asbestos exposure, which was the “injury producing event.” This is despite numerous rulings from the state Supreme Court that consistently and unambiguously held that no cause of action exists until the discovery of symptoms or diagnosis of an asbestos-related disease.

On appeal, the 2nd District ruled that loss of consortium claims exist if the marriage predates symptoms or diagnosis of a latent disease. The court found that latent disease cases, in which exposure and injury took place decades apart, are distinguishable from [Zwicker], in which the tortious act and the injury took place simultaneously. This allows standing for spouses who, like Vanhooser, married a seemingly healthy spouse with no awareness of the asbestos-related injury, let alone an intention to seek legal recourse for the injury. Grouping cases like Vanhooser’s with those of would-be plaintiffs marrying in search of a lawsuit was a gross oversight of the California courts that has been rectified by this ruling.

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