COVID-19: THE NEW TOXIC TORT?

Take-home exposure – a concept long associated with asbestos claims – is now being asserted by workers and their family members to support their claims against employers and property owners. Take-home exposure, also known as secondary or domestic exposure, involves a plaintiff alleging personal injury as a result of being exposed to clothing belonging to a household member, who had been directly exposed to a toxin at work.

A lawsuit was recently filed in San Francisco County Superior Court wherein a couple alleged they contracted COVID-19 as a result of the husband’s job as a construction worker at a millworking company. (See Corby Kuciemba, et al. v. Victory Woodworks, Inc., et al., Case No. CGC-20-587507.) The plaintiffs allege that the husband (along with all of his co-workers) was transferred from a jobsite in San Francisco to a jobsite in Mountain View, California after another employee contracted COVID-19. However, the plaintiffs allege that the defendant failed to adhere to the stay-at-home order in effect at the time which, among other things, required a daily screening protocol and quarantining to prevent the commingling workers from different job sites. As a result, the husband – and subsequently his wife – developed COVID-19. The wife specifically alleged that the husband’s employer exposed him to COVID-19 while at the Mountain View jobsite and that it was foreseeable that she would also develop COVID-19 through her husband.

Under California law, employers have a duty to take reasonable care to prevent take-home exposure where it is reasonably foreseeable that workers, their clothing, or personal effects will carry home the toxin from the workplace. (See Kesner v. Superior Court (2016) 1 Cal.5th 1132.)

The concept of take-home exposure is allowing workers who would otherwise be limited to the workers compensation arena to seek damages for developing COVID-19. The workers compensation exclusivity rule typically bars an employee from filing a civil lawsuit against his or her employer. However, no such rules bar an employee’s spouse from filing a lawsuit and given that a spouse may assert a loss of consortium claim, the take-home exposure theory allows for a “work-around” the workers compensation exclusivity rule.

The Kuciemba lawsuit is one of the first known lawsuits involving COVID-19 but current data suggests that there may be many more claims/lawsuits forthcoming.

In a letter written by Thomas M. Selden, PhD and Terceira A. Berdahl, PhD and published by the Journal of American Medical Association Internal Medicine in January 2021, between 56.7 and 74.3 million increased-risk U.S. adults lived with or were themselves essential workers who could not work at home. The letter defined “increased-risk” as those with obesity (body mass index of 30 or higher); at least 65 years old; or having any of the following conditions: diabetes, emphysema or other chronic obstructive pulmonary disease, kidney disease, cancer (other than nonmelanoma skin cancers), coronary heart disease, asthma or hypertension. In addition, adults who currently smoke were also included. The wife in Kuciemba alleged that she falls within the “increased-risk” category as she is 65 years old and has underlying health issues.

The claims set forth in the Kuciemba lawsuit will come down to two important elements that are typical of toxic tort cases: (1) product identification and (2) whether the worker’s exposure to the product was a substantial factor in causing the illness. Thus, the Kuciemba plaintiffs will have to show that there was at least one worker present at the Mountain View job site who had COVID-19. If they are able to show that, then they must show that the husband’s exposure to the infected employee was a substantial factor in causing him to develop COVID-19 and that, subsequently, the wife’s exposure to the husband was a substantial factor in causing her to develop COVID-19. Experts will likely include infectious disease experts, industrial hygienists, and toxicologists.

Although the light may be at the end of the tunnel as more and more people become vaccinated and the number of infections decrease, it is important for employers to remain vigilante and continue to reasonably comply with governmental health orders to hopefully vaccinate themselves against future claims.