Boeing Gets Off Despite Asbestos 'Moon Suits'

     (CN) - Despite providing certain workers with "moon suits" and ventilators to handle asbestos, Boeing did not have "actual knowledge" that unprotected workers in the same area would get sick, a Washington appeals court ruled.
     Gary Walston said he manufactured airplane parts for Boeing at a Seattle plant from 1956 to 1992, and that he inhaled asbestos fibers during pipe insulation repairs in 1985.
     He sued Boeing after doctors diagnosed him with asbestos-related mesothelioma in 2010.
     The complaint said Boeing commissioned the 1985 insulation repairs because asbestos was flaking and falling from the overhead pipes in Walston's work area.
     "While performing this work, the maintenance workers used ventilators and were fully enclosed in protective clothing that the hammer shop workers referred to as 'moon suits,'" according to a summary of court records in the Court of Appeals ruling.
     Walston said Boeing never gave him protective clothing or a respirator during the repairs.
     "The 1985 repairs created visible asbestos dust and debris that fell on Walston and the other hammer shop workers," the court explained. "Walston covered his tool box with plastic to stop the dust from accumulating in it. Hammer shop workers, including Walston and John Stewart, asked their supervisor whether they could leave their workstations or wear protective gear during the pipe repair. The supervisor told them to 'go back to work' but recommended that the workers avoid working directly under the overhead repairs."
     Walston said Boeing had "actual knowledge" that he was certain to be injured by asbestos, and "willfully disregarded such knowledge."
     Washington law provides that workers' compensation is the exclusive remedy for injured employees subject to the Industrial Insurance Act, unless an employer deliberately intended to cause the injury.
     A Pierce County judge refused to grant Boeing summary judgment, but the second division of the Washington Court of Appeals reversed Tuesday.
     Walston failed to prove Boeing "knew in 1985 that the pipe repairs in the hammer shop were certain to cause injury to its employees," Judge Marywave Van Deren wrote for a three-member panel.
     Boeing workers like Walston "were not immediately or visibly injured by the exposure to asbestos," the ruling states. "Nor did they complain of injuries caused from their exposure to asbestos. Walston was not diagnosed with an asbestos related disease until 25 years after the 'moon suit incident' in the hammer shop."
     Van Deren said Walston failed to show that Boeing had known since the 1970s "that diseases caused by asbestos exposure have long latency periods and that they materialize at some later date."
     "He points to at least three workers' compensation claims against Boeing alleging asbestos-related injuries between 1978 and 1986, and a 1981 lawsuit by a Boeing employee against a third-party asbestos manufacturer that alleged asbestos-caused cancer," the ruling states.
     "But the record here does not support a holding that Boeing's awareness that some workers developed asbestos-related diseases raised a material issue of fact about whether Boeing knew that exposing employees to asbestos during the pipe repair in 1985 was certain to injure them," Van Deren added.
     While Boeing "knew that exposure to asbestos was dangerous to its employees because it increased the risk that an asbestos-related disease could materialize," Walston cannot make the required showing that Boeing knew "certain injury" would result, according to the ruling.
     "Because Walston has failed to carry his burden to demonstrate that there remains a material question of fact about Boeing's actual knowledge of certain injury as required by RCW 51.24.020, Boeing is immune from Walston's suit for workplace injury under RCW 51.04.10," Van Deren concluded. "Accordingly, Boeing is entitled to summary judgment as a matter of law."