Rachel Flores, of California, has filed a wrongful death suit on behalf of herself and her two daughters following the death of her husband from mesothelioma in 2008.

Flores’s husband did construction work on a building owned and operated by the Kmart corporation in 2002 and 2003. During the work he was exposed to asbestos, which ultimately led to his death from the incurable, inoperable lung cancer mesothelioma. However, before he contracted symptoms, Kmart’s reorganization and bankruptcy claim discharged all existing and unmade claims. This led to the initial attempt by Flores to file her lawsuit being dismissed by a trial court.

The family was not going to accept this decision, however. They took the case to a California Appeals Court, and argued that this was a violation of the fourteenth amendment rights of the family. In part, the amendment states “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

While it is true that in legal standing for bankruptcy such as Chapter 11 reorganization, debts and claims are discharged, this decision was argued to be in violation of the privileges of the Flores family. In particular, there was no reasonable way that Mr. Flores could have known about the ramifications of Kmart’s Chapter 11 activities, nor was he likely to understand that he was at risk for mesothelioma following work on that particular building. In short, using the Chapter 11 reorganization as a shield violated the family’s right to due process.

The California Appeals Court agreed with the Flores’s argument and vacated the earlier ruling, claiming that the case could proceed legally. It is unknown whether Kmart corporation will decide to reach an independent settlement with the family, or continue to see the case through the courts. At this time, the Flores family is determined to see the case through.