Robert H. Wright is a Partner with Horvitz & Levy LLP in Los Angeles, CA and is the WLF Legal Pulse’s Featured Expert Contributor on Mass Torts—Asbestos.

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Courts in some states have recognized take-home liability claims in asbestos cases.  Will these cases provide a rulebook for COVID-19 take-home claims?  Or are the differences between the types of cases too great to allow such an extension?

Nationwide, many courts have addressed the question whether employers, premises owners, or manufacturers have a duty to protect against take-home exposures to asbestos.  These claims allege that companies that used asbestos in the workplace owe a duty not only to protect their own employees from direct exposures, but also owe a duty to protect anyone who later comes into contact with those employees.

Courts have split on the question.  For example, the Arizona Supreme Court recently held that an “employer owed no duty to the public regarding secondary asbestos exposure.”  Quiroz v. ALCOA Inc., 416 P.3d 824, 827 (Ariz. 2018).  But in the same year, the Virginia and Delaware Supreme Courts recognized such a duty.  Quisenberry v. Huntington Ingalls Inc., 818 S.E.2d 805, 807 (Va. 2018) (holding that employers owe a “duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee” where the “employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home”); Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1262 (Del. 2018) (holding that a “household member who regularly launders an employee’s asbestos-covered clothing . . . may sue her spouse’s employer for its failure to provide warnings and safe laundering instructions”).

Plaintiffs in COVID-19 cases may seek to borrow from the asbestos playbook.  For example, the media have reported the existence of two new COVID-19 cases in Illinois alleging take-home exposure.  See Tom Hals, Take home’ lawsuits over COVID infections could be costly for U.S. employers, Reuters (Sept. 28, 2020, 3:09 AM).  The first case is a wrongful death action on behalf of an individual who died of COVID-19 (Iniguez v. Aurora Packing Co.).  The second is a personal injury action brought by an individual for injuries from COVID-19 (Reynoso v. Byrne & Schaefer Inc.).  In both cases, the individuals allegedly contracted the virus from their spouses, who allegedly contracted the virus while working at, respectively, a meat processing plant and an assembly plant.

These claims may differ in a couple of fundamental ways from take-home asbestos claims.  The first difference is in what is being taken home.  In the asbestos cases, the employer allegedly allows asbestos to travel from the workplace to the home.  But in the COVID-19 cases, the employee is taking home a virus.

That difference could impact how courts evaluate the employer’s duties.  In recognizing a duty in a take-home asbestos case, the California Supreme Court emphasized that it was “not [the spouse’s] contact with [the employee] that allegedly caused her mesothelioma, but rather [the spouse’s] contact with asbestos fibers that [the employer] used on its property.”  Kesner v. Superior Court, 384 P.3d 283, 301 (Cal. 2016).  The court held that a duty was consistent with precedent recognizing “liability for harm caused by substances that escape an owner’s property.”  Id.  But in COVID-19 cases, the injury results not from contact with substances escaping the owner’s property, but instead contact with someone who has allegedly encountered such a substance.

COVID-19 take-home cases may also present challenging questions about the cause of injury.  In those cases, the plaintiff will have the burden to prove not just that the employee contracted the virus from the workplace, but also that the employee then spread that virus to the spouse.  Meeting that proof burden may be difficult during a pandemic in which thousands of individuals in the same region could have the same virus at the same time.

The difficulty of proof can be shown by analogy to the workers’ compensation statutes.  Since the spring, many states have adopted rebuttable presumptions that, if certain employees contract COVID-19 after being at the workplace, the illness is a workplace injury for purposes of the workers’ compensation laws.  The adoption of these rebuttable presumptions hints at the difficulty of proving causation in the absence of a presumption.

California provides an example.  California is among the states adopting a rebuttable presumption for workers’ compensation and COVID-19.  See Cal. Lab. Code §§ 3212.87, 3212.88.  The new law’s legislative history explains that presumptions are appropriate in “unique circumstances where injuries or illnesses appear to logically be work related, but it is difficult for the employee to prove it is work related.”  S. B. 1159 Third Reading Analysis, 2019-2020 Reg. Sess., at 2 (Cal. 2020) (emphasis added).  In short, motivating California’s adoption of the rebuttable presumption is the difficulty of proof in the absence of such a presumption.

Likewise, the Department of Labor has adopted new procedures that effectively create a rebuttable presumption under the Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101-8193, for federal employees considered at high risk for COVID-19.  The Department has explained that such a presumption is appropriate because “it is difficult to determine the precise moment and method of virus transmission.”   Claims under the Federal Employees’ Compensation Act due to the 2019 Novel Coronavirus (COVID-19), U.S. Dep’t of Labor Office of Workers’ Compensation Programs (emphasis added).

Although time will tell, the take-home theory of liability in asbestos cases may not translate to COVID-19 cases.  The differences seem great, both in what is being taken home and the difficulty of proving the cause of a virus during a pandemic.  Because of these differences, the theory of take-home liability in asbestos cases may not provide a rulebook for cases outside that narrow context.