Featured Expert Contributor: Mass Torts—Asbestos

Robert H. Wright is a Partner with Horvitz & Levy LLP in Los Angeles, CA.

A pair of cases pending in California may help decide whether employers can be liable to nonemployees when an employee allegedly contracts COVID-19 at work and transmits the disease to a nonemployee.  The answer will have two parts.  First, will the workers’ compensation laws preempt such claims?  Second, putting aside any such preemption, will employers owe a duty to nonemployees to protect them from COVID-19?

At the end of last year, the California Court of Appeal decided the preemption issue in See’s Candies, Inc. v. Superior Court, 73 Cal.App.5th 66 (2021).  In that case, plaintiffs are the spouse and children of a decedent who died from COVID-19.  Defendants employed the decedent’s spouse.  Plaintiffs allege that the spouse contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures.  The decedent allegedly caught the disease from the spouse while at home.

The Court of Appeal held that the workers’ compensation laws did not bar plaintiffs’ claims.  Defendants have petitioned the California Supreme Court to grant review.  That court has until April 28 to rule on the petition.  See’s Candies v. Superior Court, Case No. S272923.

As in many states, the California workers compensation system allows employees to recover for workplace injuries under a strict liability regime but protect employers from excessive liability by establishing workers’ compensation as the exclusive remedy for all workplace injury claims.  As the Court of Appeal recognized, the workers’ compensation system is also the exclusive remedy for third-party claims that are collateral to or derivative of an employee’s injury.  Examples of claims that are barred under this derivative-injury doctrine include actions by an employee’s spouse for loss of the employee’s services, loss of consortium, or emotional distress from witnessing the employee’s injuries.  Nonetheless, the Court of Appeal held that the derivative-injury doctrine does not apply when an employee contracts a virus at work, subsequently infects a family member, and the family member dies as a result.

Defendants argued that the derivative-injury doctrine applied because plaintiffs could not state a claim against defendants for the decedent’s death without alleging an injury to an employee, namely the workplace infection with COVID-19.  But the Court of Appeal held that the fact an employee’s injury is the biological cause of a nonemployee’s injury does not necessarily make the nonemployee’s claim derivative of the employee’s injury.  The Court of Appeal observed that some people may transmit viruses, including the virus that causes COVID-19, before they themselves have developed symptoms.

The Court of Appeal did not address whether plaintiffs could establish the existence of a duty.  The trial court had reached that issue and analogized the allegations in the complaint to those in Kesner v. Superior Court (2016) 1 Cal.5th 1132, a decision addressing injury from asbestos exposure.  The Kesner Supreme Court held that an employer could be liable for injuries to an employee’s family members caused by asbestos fibers on the employee’s clothing.  The See’s Candies Court of Appeal expressed no opinion on the question whether it should extend Kesner outside the asbestos context “apart from that it would appear worthy of exploration.”

The same issues have surfaced in a matter pending before the Ninth Circuit, Kuciemba v. Victory Woodworks Inc., No. 21-15963 (trial court opinion here).  In that case, a spouse sued claiming that her husband’s employer was responsible for her COVID-19 infection.  The employer argued that California’s workers’ compensation laws barred the spouse’s claims under the derivative-injury doctrine.  The district court ruled for defendant but did so before the See’s Candies decision.

The Ninth Circuit heard oral argument on March 10.  The panel hearing arguments consisted of Judges Clifford Wallace, Sidney Thomas, and Margaret McKeown.  The judges inquired about the significance of both the See’s Candies and Kesner decisions.  The panel has not yet issued a decision.

At oral argument, Judge Wallace described the See’s Candies decision as “somewhat of a game changer.”  He raised the possibility of certifying the workers’ compensation exclusivity issue to the California Supreme Court.

The panel also questioned counsel whether Kesner supported a duty to prevent take-home exposure outside of the asbestos context.  Judge McKeown reiterated defendant’s argument that since Kesner “no court has actually applied that principle outside of the asbestos context.”  In light of that limitation, Judge McKeown asked, “how does that affect how we apply Kesner?”

Plaintiffs’ counsel argued that there “is no logical reason why Kesner should not extend to COVID.”  But he also noted that, to the extent the issue was unclear, the issue should be certified to the California Supreme Court.  Defendant’s counsel argued that the court should decline “an unprecedented creation of an employer’s duty to third parties for the spread of an infectious disease,” particularly for one that is widespread and “not confined to the workplace.”

Judge McKeown acknowledged that, unlike COVID-19, “asbestos can generally be localized.”  On that basis, she suggested that Kesner might be distinguished.  But she asked whether the California Supreme Court should decide that issue rather than the Ninth Circuit.

Defendant’s counsel emphasized the burden to both the community and employers were the court to recognize a duty under Kesner.  As he stated:  “Almost everyone who has been diagnosed with COVID lives with someone who has a job.”

Both cases are worth following as the courts address whether decisions recognizing take-home liability in asbestos cases should extend to COVID-19 exposure.