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Duff: Can COVID Causation Presumptions Have Preclusive Effect in Tort Cases?

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One of the more interesting fact scenarios playing out in recent months centers on the scope of workers’ compensation exclusivity: An employee becomes exposed to coronavirus but does not herself become disabled by COVID-19.

Michael C. Duff

Michael C. Duff

Instead, she carries the disease home and exposes certain others in her household to the virus, and one or more of those others develops COVID-19. The situation is analogous to the employee who becomes exposed to asbestos at work, does not herself develop the signature disease of mesothelioma, but someone else in the household does.

While I have no empirical data on the frequency of these kinds of COVID-19 cases, I am hearing and reading that they are being litigated.

Larson’s treatise terms these “independent breach” claims (§101.03): A dependent spouse or parent brings an action against the employee’s employer suing not derivatively, in connection with the employer’s breach of a duty to the employee (a negligence breach clearly subsumed by exclusivity), but independently in connection with a wrong committed directly against the spouse or parent.

This is not, for example, a meatpacking plant worker’s wrongful death suit filed by a surviving family member eligible for workers’ compensation benefits. That type of suit is pre-empted by workers’ compensation exclusivity (at least in the absence of intentional/willful/wanton/malicious conduct, where the action may theoretically be available depending on the state in question).

In an independent breach claim, the employee “bringing home” asbestos (or COVID-19) is simply a conduit for transmission of the disease agent. For this reason, it should also not matter if a state bars workers’ compensation for infectious diseases, since the claim does not arise under workers’ compensation.  

I think the argument that employers in these situations owe an independent duty of reasonable care to protect foreseeable household family members from harm is substantial, and the reported decisions I have found that address the question are in accord with my intuition. See Simpkins v. CSX Corp.Anderson v. A.J. Friedman Supply Co. Inc.; Kesner v. Superior Court; and Quisenberry v. Huntington Ingalls Inc.

For a robust general counterargument that exclusivity should apply, see the dissenting opinion in Quisenberry.    

Let’s consider the implications if this kind of broad, independent MacPherson v. Buick Motor Co. duty applies to this claim. Plaintiffs no doubt get an easier road to a jury. But causation challenges remain formidable. In the negligence regime, a plaintiff must establish actual and proximate causation.

Proximate causation — usually evaluated by asking whether a harm was foreseeable or was within the scope of the negligently created risk (the “risk rule”) — will likely be easy to establish. But actual causation is always challenging when there are multiple possible causes of injury (or illness).

The modern tort trend is to not rigidly apply the “but for” causation test when there are multiple causes that have caused a harm. Suppose that both workplace and outside-of-workplace exposures have caused the employee’s family member to contract COVID-19. Strict application of "but for" causation would defeat the family member’s claim because “but for” the workplace exposure, the employee would still have contracted the disease. Under the Restatement Third of Torts, Section 27, however, the workplace exposure could be an actual cause of the COVID-19 if the workplace exposure by itself was sufficient to cause the disease.  

This brings me to the main problem I want to discuss. Suppose an employee is stricken with COVID-19 and found eligible for workers’ compensation through operation of a COVID presumption. Suppose further that a member of the employee’s family is thereafter stricken by COVID-19. Is the family member bound by exclusivity in this type of situation? 

Assuming that the family member is able to pursue a tort claim on an independent breach theory, does a finding of causation in the workers’ compensation claim somehow estop the employer/insurance carrier from contesting causation in the subsequent independent breach tort claim?  

The first question seems much more difficult than the independent breach claims presented in the asbestos cases. In a very real way, the family member’s illness arose out of the employee’s injury or illness, and the agent of disease had its origin in a sick employee who was sickened at work. It strikes me as a kind of “ticking time bomb” case in which the employee’s injury has its causal origin in work but does not manifest in the workplace. (The “time bomb” is placed on the employee in the workplace but “goes off” in her living room).

The twist is that the family member is arguably not in privity with the employer in the manner contemplated by workers’ compensation statutes. If the courts apply exclusivity in these circumstances, they will have to explain the precise causal mechanisms at play, and my instinct is that many of them will not extend exclusivity this far on policy grounds.

The second question requires considering whether the causation issue in sequential workers’ compensation and tort cases are sufficiently similar to prevent “relitigation” of causation by the employer in the second (independent breach) proceeding. The causation standards governing workers’ compensation and negligence obviously differ.

A finding of workers’ compensation causation — say, whether a workplace increased the risk of contracting an injury or disease and whether medical causation has been established — is very different than what I wrote describing causation in a negligence/tort claim. In the words of the Restatement 2nd of Judgments, § 83, comment g:

Since the tribunal's authority is delimited in substantive legal terms, the tribunal ordinarily lacks authority to adjudicate claims arising out of the transaction in question but based upon other substantive legal premises. Thus, a workers’ compensation commission usually lacks authority to consider claims for punitive damages for injuries intentionally inflicted on an employee in the course of employment; an employment discrimination agency may lack authority to consider claims based on breach of contract. These limitations on authority of the tribunal should carry corresponding limitations on the scope of “claim” for purposes of the rule of claim preclusion.

In other words, a workers’ compensation agency cannot make binding findings on tort causation. Estoppel notions seem especially weak in the context of presumptions, which by definition prevent full litigation of (even) workers’ compensation causation issues.

Employers and carriers may have valid reasons to attempt to rebut workers’ compensation COVID-19 causation presumptions, but I do not think fear of defensive causation estoppel in subsequent independent breach tort litigation is realistic.     

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.

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