In Waltson v. Boeing Co., a 5-4 majority of the Washington Supreme Court held that Boeing did not have actual knowledge in 1985 that asbestos exposure would cause certain injury and that its former employee was therefore only entitled to worker’s compensation payment for the cost of the mesothelioma that likely resulted from that exposure.  While evidence showed Boeing knew that asbestos caused cellular damage and posed a risk of mesothelioma, the Court held that awareness of risk was not sufficient to defeat an employer’s tort immunity under the worker’s compensation system.  Had Boeing known that asbestos would cause certain injury, the employee’s estate would have been able to put aside worker’s compensation to sue Boeing for torts related to his disease and death.

This ruling appears to limit the Court’s 1995 decision in Birklid v. Boeing.  In that case, the Court found that Boeing did have actual knowledge that an injury was certain to occur when it knowingly exposed workers to a resin that caused various ailments.  The Court determined that this knowledge of actual injury was equivalent to a deliberate intention to harm the employee and was an exception to the worker’s compensation system’s grant of tort immunity to employers for work-related injury. Therefore, the plaintiff could bring personal injury claims against Boeing for more money than was allowed to him as worker’s compensation.

The facts here seemed to follow Birklid.  Boeing was aware that asbestos was harmful in 1985 and dispatched a crew in safety suits to repair insulation pipes wrapped in asbestos.  However, Boeing did not protect the plaintiff and his fellow workers who were instructed to keep working in the hammer shop below the pipes as asbestos dust fell around them.  25 years later, Waltson was diagnosed with mesothelioma and he died three years after that.

The key difference between Birklid and this case is that the resin always caused chemical injury while asbestos always causes cellular injury to lungs but does not always cause mesothelioma.  The Court therefore characterized the disease injury of mesothelioma as a “risk” rather than the “certainty” required to defeat Boeing’s immunity from suit under the worker’s compensation system.

In order to reach this result, the Court had to distinguish asbestos injuries from normal tort liability principles.  In most tort contexts, an increased likelihood of harm is considered a compensable legal injury.  Here, exposure to concentrated asbestos in a workplace is known to cause a physical injury to cells that significantly increases the likelihood of a terrible disease.  Yet, the increased likelihood of mesothelioma will not be recognized as a certain harm itself for worker’s compensation analysis, merely a risk of harm.

The Court therefore adopted a bright line rule that will channel mesothelioma cases away from the uncertainty and cost of litigation in to the efficient and predictable worker’s compensation system.  There are sound economic and judicial resource imperatives that support this decision.  It will be interesting to see whether the Court insists on a one-to-one correlation between action and injury in other tort contexts or whether this is a protective rule limited to asbestos cases.