Featured Expert Contributor: Mass Torts—Asbestos

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

A May 2, 2022 WLF Legal Pulse post, Update: Ninth Circuit Asks California Supreme Court to Decide Viability of ‘Take-Home COVID-19’ Liability, noted the Ninth Circuit’s request that the California Supreme Court decide two questions about employers and COVID-19.  The questions were whether employers owe a duty to nonemployees to protect them from COVID-19 and whether the workers’ compensation laws preempt such claims.

In Kuciemba v. Victory Woodworks, Inc. (July 6, 2023; Case No. S274191), the California Supreme Court answered the Ninth Circuit’s twin questions.  In doing so, it also clarified the scope of a prior decision, Kesner v. Superior Court (2016) 1 Cal.5th 1132, which held that commercial users of asbestos could be liable for injuries to an employee’s family members caused by asbestos fibers on the employee’s clothing.

The first question before the Kuciemba Court was whether, if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act bar the spouse’s negligence claim against the employer?  In a unanimous opinion by Justice Carol Corrigan, the California Supreme Court held the answer is no.  In general, workers’ compensation benefits provide the exclusive remedy for third party claims if the asserted claims are “collateral to or derivative of” the employee’s injury.  This aspect of workers’ compensation law is sometimes called the derivative injury doctrine.  As an example, the doctrine bars a spouse’s loss of consortium claim flowing from an employee’s workplace injury.  Yet without more, a mere causal link between a third party’s personal injury and an employee’s injury cannot bring the third party’s claim within the scope of the derivative injury rule.  Instead, the plaintiff’s claim must be logically or legally dependent on that employee injury.  The Court held that, because the spouse’s negligence claim here did not require that she allege or prove that the employee suffered any injury, the derivative injury rule did not bar the spouse’s claim.

The second question before the court was whether an employer owes a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?  The California Supreme Court held the answer to this question was also no.  Although the Court agreed it is foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 could also cause nonemployees to contract the disease, the court determined the costs of prevention and liability would be too burdensome to impose on employers a duty of care to prevent such “take-home” exposure.  The court distinguished Kesner as involving a small pool of defendants, companies that used asbestos in the workplace.  By contrast, a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant.  Kesner also involved a much smaller pool of potential plaintiffs, household members who were exposed to asbestos from an employee’s clothing and later developed mesothelioma.  Mesothelioma is a very rare cancer.  By contrast, the virus that causes COVID-19 is extremely contagious and common.  With COVID-19, as the court observed, “the pool of potential plaintiffs isn’t a pool at all—it’s an ocean.”