13 Ways Coronavirus Will Change How Families Travel | Out & About with Kids

10 Wake Forest L. Rev. Online 124

Betsy J. Grey*

I. Introduction

Business owners and politicians have raised the specter of a flood of civil lawsuits arising out of the pandemic.[1]  Most of these suits will likely be commercial in nature, and very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States.[2]  Even so, calls have come for immunity shields for industries that could potentially face personal injury lawsuits.[3]  But are those requests for immunity well-founded?  Strong hurdles to bringing personal injury suits already exist to discourage plaintiffs’ lawyers from suing.[4]  The most significant roadblock is causal proof, which demands that plaintiffs prove both that the source of their infection was viral exposure at a defendant’s business and that the exposure was due to the defendant’s negligence.

In Covid-19 exposure cases, meeting the burden of proof on the element of causation will be insurmountable in most cases given the highly contagious nature of the virus, the multiple sources of exposure plaintiffs may experience, and the developing state of the art on effective mitigation measures to prevent viral spread.  This Article explores these issues, examining the difficulty of causal proof in different business environments and comparing causal proof submitted in other tort cases involving clusters of injury, such as toxic exposure and food poisoning cases.  It concludes by examining whether federal legislation enacting an alternative compensation scheme for claims brought by essential workers against businesses, with lower causal proof requirements, is a better way to address the problem of causal proof, at least for those workers.

Part II reviews the state of knowledge on how the virus is transmitted.  Science continues to increase our knowledge on viral spread, but it is clear that significant spread comes from airborne particles, both smaller (aerosols) and larger (droplets).[5]  It can also spread through a variety of surfaces, known as fomites, which may retain the virus for several days.[6]  The virus spreads more easily indoors than outdoors.[7]  Confined spaces seem to pose the highest risk.[8]  Length of exposure is also a significant factor for contracting the virus.[9]  Some spreaders are asymptomatic and expose others unknowingly.

In Covid-19 personal injury suits against businesses, plaintiffs would need to prove that they contracted the illness in a given setting and the contraction was due to the defendant’s negligent failure to implement appropriate mitigation measures.[10]  Part III briefly overviews the primary mitigation measures that businesses currently use to reduce exposure to the virus.  Many of these measures are based on federal and state governments’ guidelines to businesses.[11]  These mitigation measures include ensuring social distancing, mandating mask usage, conducting symptom screening, upgrading ventilation systems, limiting numbers of patrons and employees on premises, undertaking deep cleaning measures, and providing hand-sanitizing dispensers.[12]

Part IV explores different types of business premises in which negligent exposure lawsuits can arise, and the challenges for proving causation in those settings.  The strength of causal proof is a sliding scale, depending on factors such as the nature of the environment and the length of exposure.  Causal proof will be stronger in contained environments with sustained close contact, like cruise ships and nursing homes, and weaker in highly public settings with short-term usage, like grocery stores.  Contained environments also differ because some environments are completely contained, like prisons, while others are contained for periods of time, like meatpacking plants.

Part V examines other challenging exposure cases, like toxic torts and foodborne illnesses, to see how plaintiffs meet their burden on causal proof in those settings. These settings often involve identifying outbreaks and clusters of illness and applying probabilistic proof to show causation for specific individuals.  Although important differences exist between those cases and the Covid-19 cases, they offer a starting point for approaching some of the complicated causal proof for Covid-19 cases.

Finally, Part VI explores the possibility of creating a federal alternative compensation fund for essential, frontline workers.  Like other compensation funds, it would lower the burden on causal proof and create presumptions of exposure.  The strong public policy reasons to support essential workers argue in favor of creating the causal presumptions and making it easier to receive compensation.  One approach could include creating the equivalent of a federal workers’ compensation program for essential workers, applying presumptions that the virus was contracted in the course of employment.  A workers’ compensation-like framework will help ensure that these essential workers are not left without recourse or compensation for their injuries.

II. Covid-19 Transmission

Covid-19 is highly contagious.  It is a type of coronavirus similar to SARS-CoV (“SARS”) and MERS-CoV (“MERS”)[13] and can spread when an infected person coughs, sneezes, talks, or breathes, producing respiratory droplets and aerosols.[14]  Bigger viral particles, called droplets, fall to the ground or nearby surfaces.[15]  Smaller viral particles evaporate in the form of aerosols, and can linger in the air.[16]  Experts estimate droplets and aerosols from a sneeze can travel up to six meters.[17]  Droplets from an exhale or cough can travel between one and three meters respectively.[18]  Aerosols, however, can potentially travel farther depending on the airflow pattern.[19]  Covid-19 only remains viable in aerosols for three hours, but in the form of droplets, it can infect others for up to eighty-four hours.[20]  Thus, while there is controversy among experts regarding the role of aerosols in spreading Covid-19, experts believe that the larger droplets predominantly spread the virus.[21]

Although Covid-19 can potentially spread through a variety of surfaces, experts believe fomites such as door and drawer handles, elevator buttons, and faucets are predominant carriers.[22]  This potential is likely because Covid-19 can remain viable on plastic and stainless steel for up to seventy-two hours.[23]  Other surfaces, such as cardboard, food, and water, however, have significantly lower viability spans, and thus are less likely to carry the virus.[24]

Coronaviruses are more likely to spread indoors.  While there are still limited data on the effects of different environments on Covid-19 viability, studies show that SARS retains its viability best in temperatures ranging from 71 to 77 degrees Fahrenheit, and relative humidity of 40 to 50 percent, which is typical of air-conditioned environments.[25]  However, the virus tends to lose viability at temperatures above 100 degrees Fahrenheit and relative humidity above 95 percent.[26]  Given Covid-19’s similarities to SARS, this is likely the case for Covid-19 as well.[27]  Notably, in a preprint Chinese study of 318 coronavirus outbreaks, all but one occurred indoors.[28]

Experts warn that even outdoor environments will not prevent infection among groups of people in close contact—the largest risk factor for spreading Covid-19.[29]  The worst clusters of coronavirus in the U.S. have been tied to spaces with many people in close proximity  at the same time.[30]  The length of exposure is also a critical factor—sustained interactions carry a larger risk of infection than limited interactions.[31]  Thus, the more people one interacts with, and the longer that interaction, the greater the risk of contracting Covid-19.[32]

Although there is a risk of contracting Covid-19 at nearly any location, confined spaces pose an elevated risk.[33]  Some examples of high-risk confined spaces include flights, car rides, public transportation, homeless shelters, and healthcare centers.[34]  One U.S. study analyzed Covid-19 infection potential in airplanes, cars, and healthcare centers.[35]  In airplanes, the study reported that an infected person without a mask can infect between five to ten people through one cough.[36]  This number decreases to approximately three people if the infected person wears a mask.[37]  In a car, an infected person can potentially infect every person within the car through a cough, whether or not masks are worn.[38]  While opening car windows and travelling at higher speeds slightly reduces the risk of transmission, Covid-19 droplets and aerosols can still infect every person in the car.[39]  In healthcare centers (or any other indoor environment where people gather in clusters), an infected person’s cough can spread Covid-19 droplets up to one meter.[40]  Thus, the infection risk from droplets is limited to those in close contact with the infected person, or who touch an infected fomite.[41]  However, Covid-19 aerosols from the cough may follow the airflow stream of the air conditioning and potentially infect others several meters away.[42]  While improved airflow and masks can decrease the risk of long-range transmission, some risk of infection remains.[43]

Once infected, the average person will show symptoms in five to six days.[44]  However, it is possible to show symptoms up to fourteen days after exposure.[45]  In a study of infected persons in the Hubei province of China, one of the original hotspots of the virus, 97.5 percent of people exhibited symptoms by 11.5 days.[46]  Given that the time it takes a person to develop symptoms varies, it may be difficult to determine which point of exposure caused the infection.  Equally challenging to tracing the source of infection is that some spreaders never develop symptoms at all.[47]

Our developing knowledge on viral spread and infection demonstrates how difficult it will be to prove that an individual contracted the virus at a specific exposure point.

III. Mitigation Measures for Businesses

For causal proof, plaintiffs must prove not only that the exposure to the virus occurred in the defendant’s premises; they must also prove that defendant’s failure to take appropriate mitigation measures—or a breach of its duty of due care—caused the contraction of the virus.  In other words, plaintiff must show that defendant’s negligence caused the plaintiff to contract the virus.  Most of the mitigation measures implemented by businesses originate from guidelines issued by the federal and state governments, but businesses are free to go beyond these measures in the interest of safety and the changing state of the art.  Accordingly, an important dynamic in addressing the standard of care is what mitigation efforts others in the industry have implemented.[48]  Custom in the industry will be a significant factor—if many others in the same industry have taken preventative steps that the defendant has not taken, this may suggest negligence.[49]  The effectiveness of mitigation measures undoubtedly will be disputed by experts,[50] especially given the changing state of science and the lack of peer reviewed studies and literature in the area.

In general, businesses have a duty to promote the health of employees and patrons. The Centers for Disease Control and Prevention (“CDC”) has issued general guidelines for businesses to mitigate the spread of Covid-19 in the workplace.[51]  Under these guidelines, businesses, first and foremost, should encourage those employees who are sick, have tested positive for Covid-19, or have recently come in close contact with a person who tested positive to stay home.[52]  These guidelines direct businesses to conduct symptom checks for all employees, sending home those who do not pass.[53]  If an employee tests positive for Covid-19, business owners should instruct them, as well as any potentially exposed employees, to stay home for fourteen days, telework if possible, and self-monitor for symptoms.[54]  All areas used by the sick person should be closed off and disinfected after twenty-four hours.[55] The guidelines also encourage employers to promote workplace behaviors that reduce the spread of Covid-19.[56]

Businesses should implement practices to minimize close contact.[57]  As noted, the more people with whom one interacts, and the longer that interaction, the higher the risk of Covid-19 spread.[58]  Accordingly, the CDC recommends teleworking and non-contact services when possible.[59]  In addition, businesses should modify the layout and procedures of their stores to ensure social distancing,[60] such as moving tables or barstools in restaurants,[61] spreading out gym equipment,[62] and establishing a clear path of travel for customers.[63]  In spaces where it is hard to physically distance, businesses should install physical barriers and require employees to wear cloth face coverings to prevent the spread of infection.[64]  The CDC recommends closing communal spaces, staggering employee shifts, and limiting the number of people allowed in the establishment.[65]  Businesses should also post signs and messages in highly visible locations to remind employees and customers to socially distance.[66]

The guidelines recommend other strategies to maintain a healthy business environment, including regular cleaning of all surfaces,[67] increasing ventilation rates and controlling the temperature and humidity of their building,[68] and opening windows and doors to improve air circulation.[69]  Because Covid-19 likely thrives best in low humidity, maintaining humidity levels of 40 to 60 percent may help prevent its spread.[70]  Additional guidelines for restaurants include avoiding self-serve food and drink stations, and prioritizing outdoor seating. [71]

Under these guidelines, businesses should implement flexible leave policies that do not punish employees for taking time off when they are sick.[72]  They should also offer high-risk employees, such as older adults and those with underlying medical conditions, alternative opportunities that limit their exposure risk.[73]

Importantly, the guidelines encourage businesses to follow all state and local Covid-19 regulations.[74]  Some examples of common regulations include mask mandates, travel restrictions, mass gathering restrictions, and mandatory business closures.[75]  Requirements may differ by state and industry; however, most regulations model the CDC guidance described above.[76] Currently, forty-one states require masks in public.[77]  Most states have restricted mass gatherings in some capacity and restricted travel from certain hotspots.[78]

IV. A Sliding Scale of Causal Proof Factors

As the number of Covid-19 cases in the United States continues to rise, so does the potential for Covid-19 related personal injury lawsuits against businesses and employers.  Employees, patrons, and patients could bring lawsuits against employers, businesses, and healthcare centers seeking compensation for personal injury damages resulting from their Covid-19 infection.  Some of these lawsuits will be shielded by workers’ compensation and other strong immunities.[79]  Even if they get beyond these shields, plaintiffs must prove that they more likely than not contracted the virus on the defendant’s premises due to the defendant’s negligence.  Because the virus is highly contagious and can be contracted anywhere, proving causation in these cases will be extremely difficult.  The strength of causal proof will reflect a sliding scale of factors like settings, mitigation efforts, and length of exposure.

Some settings will lend themselves to stronger causal proof than others.  Given our knowledge about exposure, asymptomatic spreaders, and incubation periods, showing a temporal relationship between visiting the premises and the onset of the virus alone will not suffice.  The best-case scenario for proving causation would likely involve an outbreak in a contained environment, like a cruise ship or nursing home.[80]  Studies have shown that the likelihood of contracting Covid-19 in a confined space is higher than the likelihood of contracting it in other environments.[81]  Moreover, a cluster of cases on the same cruise or nursing home will help prove that the outbreak is the most likely cause of the plaintiff contracting the disease.  While an outbreak is not a requirement, it will bolster causal proof.[82]

In a recent district court case, plaintiffs sought damages for personal injury, including one death, from Covid-19, which they allegedly contracted while on a cruise due to the ship’s negligence in handling an outbreak of the virus.[83]  The court dismissed the complaint, holding that although plaintiffs’ allegations of an outbreak on the ship and the defendant’s failure to quarantine or notify any of the passengers of the outbreak were sufficient to allege exposure, they had not sufficiently pled that they had contracted the virus from the exposure.[84]  Significantly, though, the court granted plaintiffs leave to amend the complaint, to give them the opportunity to allege the amount of time between the exposure and the date the plaintiffs started experiencing Covid-19 symptoms or received a positive test.[85]  The court explained that this timing regarding the incubation period is “a key fact necessary to render the causation allegations plausible, not merely possible.”[86]  This suggests that allegations of an outbreak, negligent handling of the outbreak, extended exposure, and a temporal relationship between exposure and contract may be enough to get to a jury on causation.

Alternative causes will always be an area of dispute. While the plaintiff has to rule in the cause by a preponderance of the evidence and does not need to rule out alternative causes in her case in chief, the issue will inevitably arise.[87]  Through investigation and discovery, defendants will attempt to develop potential sources of alternative exposures.  Plaintiffs who have been taking public transportation, failing to wear a facemask, joining large gatherings, or not maintaining social distancing will have a harder time proving that they contracted the virus on the business premises.  Alternative causes are harder to suggest in a nursing home where the plaintiff will likely have no other exposures other than the home itself, since most residents do not leave the building and outside visitors were curtailed very quickly after the pandemic started in March.  A plaintiff who allegedly contracts Covid-19 on a cruise ship will also have fewer alternative scenarios to explain. Although proving the plaintiff contracted the virus on the cruise ship, and not one of the stops along the way, will still be at issue, a cluster of cases onboard, and a contained environment strengthens the causal proof.

Other potentially stronger causal cases include buildings where people gather in clusters for prolonged periods of time, such as homeless shelters, factories, or certain workplaces.  These settings will not provide as strong a causal link as those that involve a nursing home or a cruise ship, since people who frequent those settings will be more mobile.  Plaintiffs will likely need to present additional evidence, such as a Covid-19 outbreak in the facility, to strengthen their causal proof.  Workplaces, like meatpacking plants, which cannot accommodate certain mitigation efforts such as social distancing may also prove to be stronger causal cases.

It will be especially difficult for plaintiffs to prove they contracted Covid-19 in uncontained environments, such as grocery stores, restaurants, gyms, and retail stores.  Given that asymptomatic individuals spread many infections, it may be very difficult to identify precisely when the infection was contracted.  Even if plaintiffs can prove they were socially isolated when they contracted the virus or that an outbreak occurred at that particular location, that proof may be insufficient.  Defendants will challenge the plaintiff on other likely places of exposure, such as their home, car, or from any other person outside of the establishment.[88]  Alternatively, the plaintiff could attempt to prove that the business was the epicenter of an outbreak.  Contact tracing may reveal that a group of people visited a particular location within the same time period and later contracted Covid-19.  But as Covid-19 cases in the United States continue to strain the healthcare system, state health departments struggle (or do not even try) to conduct effective contact tracing.[89]  Thus, this option may not be viable.

Potentially, plaintiffs may also try to trace their Covid-19 case to a particular contact through DNA sequencing.[90]  Scientists have used DNA sequencing to track the geographic spread of Covid-19.[91]  This may allow identification of a particular strain of the virus on the business premises.  This science is still developing, and it is unclear whether it can work with sufficient specificity to track a case to a single contact.

V. Causal Proof in Other Settings

Two other types of tort claims that often involve clusters of illnesses may provide useful precedent in proving causation in the Covid-19 context: food poisoning cases and toxic exposure cases.  Both settings rely on circumstantial evidence and statistical proof to strengthen causal claims.

A.     Food Poisoning

Food poisoning may have numerous potential sources of infection, which makes causal proof challenging.  Because food poisoning spreads through contaminated foods,[92] a plaintiff may be exposed to multiple potential sources in every meal.  Some kinds of food poisoning can take several days or even weeks to present.[93]  In addition to creating uncertainty as to where an infection was contracted, this delay also minimizes a plaintiff’s ability to gather physical evidence because contaminated food may have been thrown away or unsanitary surfaces may have been sanitized.  These challenges may explain the low rates of success food poisoning plaintiffs have had in suits.[94]

The success of a food poisoning claim is highly fact dependent.  The cases where food poisoning plaintiffs have had the greatest success involve a large number of people developing the same symptoms and a quick investigation linking the contaminant in the plaintiff’s food to the contaminant found on the defendant’s premises.[95]  Some bacteria that cause food poisoning have a unique “DNA fingerprint,” which have been used to track outbreaks and identify the source.[96]  Even without scientific evidence directly linking the bacteria to the defendant, plaintiffs have successfully used circumstantial evidence to establish causation.[97]  Food poisoning plaintiffs have relied on outbreaks and clusters to bolster their causal proof.  For example, courts have considered whether others who consumed the food became ill and the time frame of the illness in relation to the consumption.[98]  Although generally plaintiffs have not been required to rule out every conceivable source of causation,[99] courts have required them to do more than demonstrate they developed food poisoning shortly after eating the defendant’s food.[100]

The food poisoning cases indicate some of the challenges Covid-19 plaintiffs will face.  As discussed earlier, Covid-19 plaintiffs likely face even more sources of infection because the virus can be spread through contact with an infected (and potentially asymptomatic) person or from infected surfaces.[101]  Delays in the emergence of symptoms further increase the potential sources of infection.[102]

Although food poisoning and Covid-19 infections have substantial overlap, proving causation in a Covid-19 case may present additional challenges.  While a food poisoning outbreak likely originates from a single (often static) source, the Covid-19 outbreak is so widespread that the potential sources are arguably any of the millions of infected individuals.[103]  Importantly, food poisoning is not contagious, unlike the Covid-19 virus, which accounts for the continued increase in potential sources of the virus.  In a food poisoning case, a plaintiff can use other people, such as family members, to demonstrate that they all became sick after eating at a restaurant.  In a Covid-19 case, even if a family develops the disease after visiting a defendant’s premises together, the defendant may still be able to argue that one person contracted the disease somewhere else and spread it to the rest of the family.  In limited circumstances, however, a Covid-19 plaintiff may actually have fewer potential sources of illness than the alleged food poisoning victim.  For example, a plaintiff who quarantined or remained in a confined location will likely be able to demonstrate few alternative sources of exposure, whereas food poisoning plaintiffs are unlikely to have abstained from eating (i.e., other sources of exposure) during the potential exposure period.  Even so, this may not remove the challenge of proving that it was the defendant’s negligence that caused the plaintiff’s harm.

B.     Toxic Torts and Statistical Proof

In toxic tort, medical device, and drug cases, courts typically divide the causal inquiry into two questions: (1) general causation (whether the chemical, device or drug is capable of causing the injury); and (2) specific causation (whether the agent caused the injury to the individual plaintiff).[104]  Although proof for both of those inquiries may be based on probabilities,[105] courts generally are more likely to allow probabilistic evidence through epidemiological studies to prove general causation but may not accept it to prove specific causation.[106]

With Covid-19 exposure cases, plaintiffs often will only be able to show that the defendant’s failure to take appropriate mitigation measures increased the likelihood that they were exposed to the virus (general causation) but not that the defendant’s negligence specifically caused them to contract the virus (specific causation).  As discussed earlier, outside of a completely contained environment for a prolonged period, like a nursing home or cruise ship, the probability of a particular exposure and contraction will be lower.  Plaintiffs will have difficulty showing that, absent the defendant’s conduct, they would not have contracted the virus when they did, which would fail to meet the traditional “but for” test for actual causation.[107]  As science improves, through greater knowledge of Covid-19 and personalized medicine and advances in genetics, scientists may be able to designate which plaintiffs contracted the virus due to defendant’s activities, and which suffered injury due to other exposures.  Science may one day permit us to distinguish where and when a plaintiff contracted the virus, but it is not yet at that point, and the best available evidence may be using probabilities and statistics to determine exposure in Covid-19 cases.[108]  Much of the causal proof may rely on clusters of cases in a given environment, but in any specific case, an alternative cause may have been responsible for the plaintiff’s injury.

Since specific causation is inherently individual, defendants in Covid-19 cases will likely be successful in defeating claims of causation on a one-on-one basis.   Courts and scholars have struggled with how to address situations in which some group of plaintiffs very likely have been injured by a defendant’s activity but cannot prove which individuals were harmed because of lack of specific causal proof.  These population exposure cases often occur in mass torts such as toxic tort, medical device, and drug exposure cases.[109]  Professor Levmore calls this problem “recurring misses,” which result in a defendant escaping liability even when it has clearly caused injury to someone.[110]  Scholars have proposed “proportional liability” based on the probability of causation to address this problem.[111]  This solution would adjust damages to the probability of causation, so that plaintiffs who can prove that there is, say, a 40 percent likelihood of injury due to the defendant’s activity should receive 40 percent of their damages from that defendant.[112]  Other scholars reject this approach as allowing courts to impose liability without enough proof of responsibility. [113]

Courts have adopted this proportional liability approach in limited toxic tort cases, such as imposing market share liability.[114]  Moreover, mass tort class actions settlements often appear to apply probabilistic causation in the settlement terms.[115]  As Professor Lahav observes, “[a]s a practical matter, . . . mass torts are routinely resolved collectively through global settlements that provide more or less proportional recovery to plaintiffs.”[116]  In other words, to address large scale injury from tortious behavior, litigants and courts may be adjusting traditional causal proof standards and turning to probabilities to achieve resolution of mass torts.  If we view an extensive viral outbreak that is linked to a large-scale event sponsored without adequate mitigation measures—say a motorcycle rally or a campaign rally—as a mass tort, it may make sense to resolve causal proof problems through proportional recovery methods.

Courts sometimes lower traditional causal proof standards for policy reasons.  Asbestos provides an interesting example.[117]  Following prolonged exposure, asbestos-related diseases can take twenty to fifty years to develop.[118]  Thus, it can be difficult to determine which asbestos exposure, if any, caused the disease, even though the defendant’s activities increased the likelihood of injury from asbestos exposure to a worker.[119]  As a result, some states have lowered the causation standard for asbestos cases.[120]  Without the lower causation standard, it would be nearly impossible for plaintiffs to recover.[121]

In asbestos cases, courts typically adopt one of two alternative causation standards to address the problem of causal uncertainty: the “substantial factor” test or the “frequency, regularity, proximity” test.[122]  Under the substantial factor test, plaintiffs can prove causation by demonstrating that, to a reasonable medical probability, their exposure was a substantial factor in contributing to the aggregate dose of asbestos that led to the plaintiff’s disease.[123]  The “frequency, regularity, proximity” test requires plaintiffs to identify a specific product as the probable cause of their injuries.[124]  The substantial factor test, which courts apply when multiple defendants are responsible for an injury,[125] is less useful in the Covid-19 context since the virus is contracted through a single exposure.  The “frequency, regularity, proximity” test, which requires plaintiffs to identify a specific product as the probable cause of their injuries, may be more useful. [126]  Under the test, the plaintiff must have worked in close proximity to the product “on a regular basis over some extended period of time.”[127]

Under the “frequency, regularity, proximity” test, Covid-19 plaintiffs could attempt to show causation by presenting evidence of the length of time spent at the defendant’s place of employment or business, their proximity to others, and the property’s environment, along with evidence of cluster outbreaks on the same property.  Applying the test would help overcome the almost insurmountable hurdle presented by the “but for” test in this context by allowing consideration of the probability of exposure to show specific causation.

In recent literature, scholars continue to argue that causal proof, in certain circumstances, should be attributed probabilistically[128] and on a collective basis.[129]  Professor Campos challenges the need to prove individual causation in a mass production case, often a roadblock to class action certification, to ensure a greater impact on unlawful behavior.[130]  As he states, after a finding of total liability, “one could relax specific causation requirements completely and simply choose a simple, rational way to distribute funds.”[131]

 Professor Lahav argues that in an important subset of cases, where a binary determination of cause is virtually impossible but certain behavior has a tendency to cause harm, the causal question should be untied from a strictly scientific question of fact (the “but-for” inquiry), and introduce a normative element.[132]  In these limited circumstances, she would apply a more value-laden test: “Should there be liability for this conduct?”[133]  According to her, where courts must rely on probabilistic evidence for both general and specific causation, and repeated behavior has an increased likelihood of causing injury in the future, the causal inquiry should be influenced by the policy outcome the decision maker finds would be more beneficial to society and not just physical law.[134]

Applying Lahav’s and Campos’s approaches to the causal difficulty imposed by Covid-19 personal injury cases may make sense.  Businesses face tremendous financial pressure to cut corners in safety measures in maintaining their workplaces and businesses during the pandemic, and those businesses may not be appropriately weighing the public health costs of their actions.  This risk is compounded by the likelihood that businesses can defeat tort claims based on the failure of causal proof.  Assuming that negligent behaviors by businesses and employers increase the likelihood of contraction of the virus, but that it is virtually impossible to prove with regard to individual cases, it is arguable that courts should be influenced by normative choices in determining liability.  If hotspots, superspreader events, and clusters arise on certain premises, policy reasons may argue in favor of using statistical proof for both general and specific causation.  This view of causation will have a greater impact on a potential defendant’s conduct and will create incentives to take appropriate safety measures to protect workers and consumers from contracting the virus.

 Introducing normative considerations into the element of causation may also argue in favor of legislatively creating a special compensation fund with lowered causal proof requirements.  Such a scheme may be particularly warranted for selected victims, like essential workers, as discussed below.

VI. Creating an Alternative Compensation Fund for Essential Workers

The difficulty of proving specific causation may be the undoing of most Covid-19 personal injury lawsuits against businesses.  Driven by policy reasons in specific settings, legislatures have created alternative compensation systems that lower causal proof.  Examples include compensating victims of vaccine injury to encourage use of vaccines while protecting vaccine manufacturers from personal injury lawsuits,[135] compensating veterans who may have been exposed to Agent Orange during the Vietnam War,[136] or compensating  innocent victims, including clean-up workers, of the 9/11 attacks while protecting the airline industry from lawsuits.[137]  Some state workers’ compensation systems have lowered the causal proof standard for showing that the disease or injury to the worker from Covid-19 resulted from an activity within the scope of employment.[138]  These alternatives may serve as models for creating a federal compensation system and lowering causal proof for the essential, frontline workers who likely experienced increased exposure to the virus at their workplace. [139] 

A.     Federal Compensation Systems

Congress has formed at least three compensation systems that create a presumption of causation.[140]  All of the settings involved challenging causation issues.  In these schemes, causation is presumed when people develop specific injuries or illnesses after receiving certain vaccines, being exposed to Agent Orange, or being injured or killed in the 9/11 attacks or its aftermath.[141]

The Vaccine Injury Compensation Program[142] creates a no-fault compensation system for people injured by certain vaccines, especially childhood vaccines.[143] The program was created to encourage vaccinations and limit lawsuits that could hinder vaccine manufacturers or the supply of vaccines.[144]  Individuals filing a claim must demonstrate they were injured by the vaccine.[145]  Proving injury from a childhood vaccine can be quite difficult, but the Vaccine Injury Table[146] creates a presumption of causation for certain injuries.[147]  To receive the presumption, an injured party only needs to demonstrate that he or she received a covered vaccine and experienced an illness, disability, injury, or condition listed in the table within a specific time period.[148]  If an injury is not listed in the table, the injured party does not receive the presumption and must prove causation-in-fact.[149]

Federal legislation permits creation of a similar scheme for injuries from vaccines and other countermeasures used in a public health emergency.  The Public Readiness and Emergency Preparedness Act (“PREP Act”) creates a compensation fund for individuals injured by countermeasures,[150] and the Secretary of Health and Human Services is authorized to create a list of injuries that will be presumed to be caused by a countermeasure.[151]  In the Covid-19 context, countermeasures includes vaccines.[152]  The policy behind creation of this fund is obvious: to encourage widespread use of vaccines and other countermeasures during a health emergency while protecting those who administer or create the countermeasures from liability.[153]

Veterans potentially exposed to Agent Orange during the Vietnam War also received a presumption of causation to receive compensation for certain diseases.  Proving a causal link between exposure to the defoliant used during the war and subsequent delayed illness was extremely difficult, and the veterans of the controversial war were a sympathetic group of plaintiffs.[154]  The Agent Orange Act of 1991[155] created a list of “presumptive diseases.”[156] In order to receive the presumption, a veteran must have developed a presumptive disease and have served in specific regions during certain time periods.[157]

Victims of the 9/11 terror attacks received compensation under the September 11th Victim Compensation Fund, which provides compensation to people substantially injured or to the families of people killed as a result of the terrorist attacks.[158]  Although the Fund initially only covered those who were injured or killed in the immediate aftermath of the attacks, it was extended to cover clean-up workers whose manifestations of injuries may have been delayed.[159]  To receive compensation, a claimant must demonstrate both a physical health condition and some exposure to the 9/11 crash site or clean-up efforts.[160]  There is a list of approved “WTC-related health conditions;”[161] however, the exposure must be determined to be “substantially likely to be a significant factor” in the health condition by a medical professional.[162]  This determination may be based on the length of exposure as well as the specifics of the exposure, such as actual involvement in clean-up efforts rather than only proximity.[163]  A claimant must have been present at a crash site, within a Victim Compensation Fund (“VCF”) NYC Exposure Zone, or near debris removal routes.[164]  Although it does not explicitly lower the burden of causation, the Fund’s list of qualifying health conditions and specific methods for determining exposure has a similar effect.

B.     State Compensation Systems

States have lowered causal proof requirements in compensation systems.  State workers’ compensation schemes generally require a worker to show that a disease or injury resulted from an activity within the course or scope of employment.[165]  This showing could be very difficult for Covid-19 victims because of the many alternative sources of exposure, as discussed above.   Some states, such as Alaska, Minnesota, and Wisconsin, have enacted legislation creating a presumption of causation that first responders contracted Covid-19 in the course of their employment.[166]  In California, even non-essential workers receive the presumption. [167]

C.     A Compensation Scheme for Essential Workers

The strong public policy interest in protecting essential workers from injury during the pandemic, and the difficulty of proving specific causation, argue in favor of creating a federal compensation fund for essential workers with a lower causal standard.  Otherwise, given the barriers to proving causation (including under most state workers’ compensation schemes), few front line employees would be able to recover for their injuries from negligent defendants.  These victims are serving in critical positions for society but face prolonged periods of exposure in risky environments.  Similar to the 9/11 first responders, the symbolic nature of ensuring compensation for these victims is significant.  The risks borne by these workers should be perceived of as commonly shared risks, which would justify the use of a federal compensation system.  Modeled on state workers’ compensation programs, Congress could create a national program that creates a presumption of causation for essential workers who contract Covid-19, which would make them eligible for personal injury damages resulting from the virus. [168]

Compensation funds can ensure efficient dispensation of victim compensation.  Any time a legislature goes outside the tort system and creates an alternative compensation system, however, it comes at a cost.  In particular, it removes incentives provided by the tort system to engage in reasonably safe behavior.[169]  One concern is that providing compensation to essential workers would create a disincentive to individuals from refraining from risky behaviors outside of work, like attending large public events or failing to socially distance.  Although such behaviors will inevitably occur, on balance the arguments in favor of creating a compensation scheme for this limited group of workers who provide enormous benefit to society outweigh the risk of the workers engaging in risky behaviors outside of work.  The anecdotal evidence of essential workers taking extreme measures to protect their families suggest that the risks of this behavior are minimal.[170] 

Similarly, a federal compensation scheme may remove an incentive for businesses to take reasonable safety measures to protect their workers.[171]  Like state workers’ compensation systems, the Fund would protect essential businesses from liability for claims brought by their employees, a form of tort immunity.  Removing the specter of tort liability could create disincentives from prioritizing the implementation of sufficient safety measures, especially given the enormous financial pressures businesses face in the pandemic.  Theoretically, regulators like the Occupational Safety and Health Administration (“OSHA”) fill in the gap left by no-fault workers’ compensation schemes.[172]  Regulation of Covid-19 safety measures may need to be increased in this area to countermand the risk of unsafe business practices.[173]  Even without increased regulation, the strong societal pressures to take appropriate mitigation measures, as well as the obvious need to create a healthy atmosphere for workers, should counteract the potential for reduced safety measures.  Furthermore, the scheme would be limited in scope and only apply to workplaces of essential workers.  Although a few states have already created presumptions to achieve the same result through state workers compensation funds,[174] most have not.

VII. Conclusion

Causation will be a significant barrier to personal injury lawsuits on business premises.  There will likely be no direct evidence attributing contraction of Covid-19 to a specific source available in the near future.  Although plaintiffs may be able to prove general causation by alleging that defendants’ negligent implementation of mitigation measures increased the likelihood of exposure to the virus generally, specific causation will be much more challenging.  Alternative sources of exposure will always be an issue.  The highly contagious nature of the virus and the lengthy incubation period make proof especially difficult.  Plaintiffs’ conduct will play a central role in the causal proof.

This does not mean that the causal element must always be fatal to plaintiffs’ personal injury suits.  Causal proof will be stronger when the premises involve contained environments over a lengthy period.  Evidence of cluster “hot spots” will also strengthen the inference that the plaintiff contracted the virus on the premises.  Plaintiffs may look to other precedent, such as food poisoning and toxic tort cases, where cases of clusters and statistical proof have been used, to bolster causation.

Finally, we should consider alternative methods of compensation for certain victims.  In particular, essential frontline workers, serving in critical positions to promote social interests, but facing prolonged periods of exposure in risky environments, may warrant special protection.  A federal compensation scheme would more equitably absorb the risk of no compensatory recourse due to failure of causal proof for these workers.  Federal and state no-fault compensation schemes, which create presumptions of causation, offer models to create a special compensation fund for essential workers.

* Jack E. Brown Chair in Law, Sandra Day O’Connor College of Law at Arizona State University. I thank Brie Alford and Samantha Orwoll for their excellent research assistance for this Article.

[1].     Jim Tankersley & Charlie Savage, Businesses Seek Sweeping Shield from Pandemic Liability Before They Reopen, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/04/28/business/businesses-coronavirus-liability.html (quoting Senator Mitch McConnell who stated that businesses will be “set up for an avalanche of lawsuits” if Congress doesn’t act).

[2]. See Covid-19 Case Tracking Research, Perkins Coie LLP 1 (September 2020), https://www.perkinscoie.com/images/content/2/3/v24/234690/Perkins-Coie-Client-Advantage-COVID-Case-Tracking-Research.pdf.  The largest number of suits filed this far have been against insurance companies for disputes over business interruption coverage.  Id.; see also COVID-19 Complaint Tracker, Hunton Andrews Kurth, https://www.huntonak.com/en/covid-19-tracker.html (last visited Oct. 30, 2020) (tracking relatively few tort claims).

[3].         See Betsy J. Grey & Samantha Orwoll, Tort Immunity in the Pandemic, 96 Ind. L. J. Supp. 66, 66–67 (2020), http://ilj.law.indiana.edu/articles/Grey_Tort-Immunity-in-the-Pandemic_10.23.pdf.

[4].   See id. at 3–4.

[5].       Renyi Zhang et al., Identifying Airborne Transmission as the Dominant Route for the Spread of COVID-19, 117 Proc. Nat’l Acad. Sci. U.S. 14857, 14857 (2020), https://www.pnas.org/content/pnas/117/26/14857.full.pdf.

[6].   Mahesh Jayaweera et al., Transmission of COVID-19 Virus by Droplets and Aerosols: A Critical Review on the Unresolved Dichotomy, 188 Elsevier Env’t. Res. 1, 1 (2020).

[7].   Deciding to Go Out, Ctrs. for Disease Control & Prevention (Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/deciding-to-go-out.html.

[8].   Jayaweera et al., supra note 6, at 8.

[9].        Public Health Guidance for Community-Related Exposure, Ctrs. for Disease Control & Prevention (July 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html.

[10].   Order Granting Joint Stipulation to File Second Amended Compl. and Granting in part Def’s Mot. to Dismiss at 8, Wortman v. Princess Cruise Lines Ltd., No. 2:20-CV-041690DSF-JC (C.D. Cal. Aug. 21, 2020) (No. 30).

[11].        See, e.g., Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, Ctrs. for Disease Control & Prevention (May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html#:~:text=%2D%20Configure%20partitions%20as%20a,%2C%20pick%2Dup [hereinafter Interim Guidance].

[12].        See id.

[13].  Nicola Petrosillo et al., COVID-19, SARS and MERS: Are They Closely Related?, 26 Clinical Microbiology & Infection 729, 731–32 (2020).

[14].   Zhang et al., supra note 5, at 14,857.

[15]. Jayaweera et al., supra note 6, at 1.

[16]       Id.

[17].        Id. at 6.

[18].        Id.

[19].        Id. at 13–14.

[20].        Id. at 4.

[21].        Id. at 2.

[22].        Id. at 3.

[23].        Id. at 4.

[24].        William F. Marshall, Can COVID-19 (Coronavirus) Spread Through Food, Water, Surfaces and Pets?, Mayo Clinic (June 5, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/expert-answers/can-coronavirus-spread-food-water/faq-20485479.

[25].        K.H. Chan et al., The Effects of Temperature and Relative Humidity on the Viability of the SARS Coronavirus, 2011 Advances Virology 1, 2 (2011).

[26].        Id. at 2–3.

[26].       Petrosillo et al., supra note 13, at 731–32.

[28].        Hua Qian et al., Indoor Transmission of SARS-CoV-2, medRxiv (forthcoming 2020) (preprint at 5) (on file with medRxiv and bioRxiv), https://www.medrxiv.org/content/10.1101/2020.04.04.20053058v1.

[29].       Aylin Woodward, You’re Less Likely to Catch the Coronavirus Outdoors, But the Amount of Time You Spend Near Other People Matters Most, Bus. Insider (May 17, 2020, 9:02 AM), https://www.businessinsider.com/risk-of-coronavirus-transmission-lower-outdoors-evidence-2020-5.

[30].        Id.

[31].        People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (Oct. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Patients with a higher viral load, or dose, of the virus may suffer from more severe symptoms of Covid-19.  Elisabet Pujadas et al., SARS-CoV-2 Viral Load Predicts COVID-19 Mortality, 8 Correspondence e70, e70 (2020), https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30354-4/fulltext

[32].        People with Certain Medical Conditions, supra note 31.

[33].        Jayaweera et al., supra note 6, at 8.

[34].        Id.

[35].        Id.

[36].        Id.

[37].        Id. at 9.

[38].        Id. at 12.

[39].        Id.

[40].        Id. at 13.

[41].        Id. at 13–14.

[42].        Id.

[43].        Id. at 14–15.

[44].        Stephen A. Lauer, et al., The Incubation Period of Coronavirus Disease 2019 (COVID-19) from Publicly Reported Confirmed Cases: Estimation and Application, Annals Internal Med. 1, 1, 3 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7081172/.

[45].        Id. at 4–5.

[46].        Id. at 3.

[47].        Seungjae Lee, et. al, Clinical Course and Molecular Viral Shedding Among Asymptomatic and Symptomatic Patients with SARS-CoV-2 Infection in a Community Treatment Center in the Republic of Korea, JAMA Internal Med. (Aug. 6, 2020), https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2769235.

[48].        Dan B. Dobbs, et al., Hornbook on Torts § 12.6 (2d ed. 2000).

[49].        Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 13 (Am. L. Inst. 2010).

[50].        See Danielle Conway-Jones, Factual Causation in Toxic Tort Litigation, 35 U. Rich. L. Rev. 875, 918 (2002) (“Because the issue of factual causation in toxic tort cases is complex, expert testimony is crucial, especially to those courts that rely heavily on the ontological approach.”).

[51].        Interim Guidance, supra note 11. For example, all businesses should designate a point of contact for Covid-related concerns. Id.

[52].        Id.

[53].        Id.

[54].        Id.

[55].        Id.

[56].        Id. Examples include teaching employees proper etiquette for coughing, sneezing, and handwashing, and providing tissues, no-touch trashcans, soap and water, and hand sanitizer with at least 60 percent alcohol.  Id.  Restaurant and bar owners should monitor employee compliance with hand-washing protocol. Considerations for Restaurants and Bars, Ctrs. for Disease Control & Prevention (June 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/bars-restaurants.html [hereinafter Considerations for Restaurants and Bars].

     [57].   Interim Guidance, supra note 11.

     [58].   Operating Schools During COVID-19: CDC’s Considerations, Ctrs. for Disease Control & Prevention (May 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools.html.

     [59].   Considerations for Restaurants and Bars, supra note 56.

     [60].   Interim Guidance, supra note 11.

     [61].   Considerations for Restaurants and Bars, supra note 56.

     [62].   Personal and Social Activities, Ctrs. for Disease Control & Prevention (Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/personal-social-activities.html#gyms.

     [63].   Interim Guidance, supra note 11.

     [64].   Id.

     [65].   Id.

     [66].   Id.

     [67].   Id. Soap and water is sufficient for most surfaces; however, frequently touched surfaces, such as light switches, doorknobs, and handles, should be disinfected.  Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes, Ctrs. for Disease Control & Prevention (May 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html [hereinafter Reopening Guidance]. Businesses should consult CDC guidelines to ensure they use the correct cleaner or disinfectant for the particular surface.  Id.  To reduce the cleaning burden, businesses may consider removing unnecessary items and replacing hard to clean surfaces, such as carpets and rugs.  Id.

     [68].   Businesses should run their ventilation 24/7 if possible, to increase ventilation rates. Interim Guidance, supra note 11. The American Society of Heating, Refrigeration, and air-Conditioning Engineers (“ASHRAE”) recommends single-space high ventilation to reduce concentrations of infectious aerosols.  See Erica J. Stewart et al., ASHRAE Position on Infectious Aerosols, ASHRAE (Apr. 14, 2020), https://www.ashrae.org/file%20library/about/position%20documents/pd_infectiousaerosols_2020.pdf.

     [69].   Interim Guidance, supra note 11.

[70].        See Stewart et al., supra note 68.

[71].        Considerations for Restaurants and Bars, supra note 56.

[72].        Id.

[73].        Id.

[74].        Interim Guidance, supra note 11.

[75].        COVID-19 State and Local Policy Dashboard, Multistate, https://www.multistate.us/research/covid/public (last visited Oct. 30, 2020).

[76].        See id.

[77].        Id.

[78].        Id.

[79].        See Pa. Exec. Order No. 2020-05 (2020), https://www.governor.pa.gov/wp-content/uploads/2020/05/20200506-GOV-health-care-professionals-protection-order-COVID-19.pdf. Notably, this legislation only protects individuals and not the healthcare entities. See Grey & Orwoll, supra note 3, at 69–75.

[80].        See Benedict Carey & James Glanz, Aboard the Diamond Princess, a Case Study in Aerosol Transmission, N.Y. Times (July 30, 2020), https://www.nytimes.com/2020/07/30/health/diamond-princess-coronavirus-aerosol.html?referringSource=articleShare (discussing evidence that small, airborne droplets may play a large role in the transmission of Covid-19 and may have “accounted for about 60 percent of new infections over all” on a cruise ship).

[81].       Jayaweera et al., supra note 6, at 8.

[82].        See Foster v. AFC Enters., 896 So. 2d 293, 297 (La. Ct. App. 2005) (finding that evidence of a cluster of food poisoning cases was not necessary to prove causation).  But cf. Hairston v. Burger King Corp., 764 So. 2d 176, 178 (La. Ct. App. 2000) (noting that clusters of food poisoning cases help establish causation).

[83].        Order Granting Joint Stipulation to File Second Amended Compl. and Granting in part Def’s Mot. to Dismiss at 6–8, Wortman v. Princess Cruise Lines Ltd., No. 2:20-CV-041690DSF-JC (C.D. Cal. Aug. 21, 2020) (No. 30) (allegations of Covid-19 outbreak on cruise ship, without quarantining passengers, sufficiently allege plaintiffs were exposed to virus while onboard; complaint dismissed with leave to amend to allege amount of time between alleged exposure and experiencing symptoms or receiving positive test to allege causation). 

[84].        Id.

[85].        Id. at 7–8, 12.

[86].        Id. at 7.

[87].        See Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 28, cmt. b (Am. L. Inst. 2010) (“The civil burden of proof merely requires a preponderance of the evidence, and the existence of other, plausible causal sets that cannot be ruled out does not, by itself, preclude the plaintiff from satisfying the burden of proof on causation.”).

[88].        Plaintiffs may have expressly or impliedly assumed the risk of contracting Covid-19 in a particular location.  Assumption of the risk may act as a complete bar to recovery.  Plaintiffs may have expressly assumed the risk if they signed a waiver releasing a business or organization from liability for contracting Covid-19 in their establishment.  Alternatively, a plaintiff who knowingly and voluntarily patronized a business that was not exercising appropriate precautions may have impliedly accepted the risk of contracting Covid-19.

[89].        Tracking Coronavirus Cases Proves Difficult Amid New Surge, Mod. Healthcare (June 29, 2020, 1:19 PM), https://www.modernhealthcare.com/technology/tracking-coronavirus-cases-proves-difficult-amid-new-surge.

[90].        Claire Jarvis, How Genomic Epidemiology is Tracking the Spread of COVID-19 Locally and Globally, Chem. & Eng’g News (Apr. 23, 2020), https://cen.acs.org/biological-chemistry/genomics/genomic-epidemiology-tracking-spread-COVID/98/i17.

[91].        Id.

[92].        Abigail Shew, Are You Sure It Wasn’t Food Poisoning, U.S. Dep’t Agric. (May 7, 2019), https://www.usda.gov/media/blog/2017/08/28/are-you-sure-it-wasnt-food-poisoning.

[93].        See, e.g., Listeria (Listeriosis), Ctrs. for Disease Control & Prevention (June 17, 2019), https://www.cdc.gov/listeria/symptoms.html; Salmonella and Food, Ctrs. for Disease Control & Prevention (July 9, 2020), https://www.cdc.gov/foodsafety/communication/salmonella-food.html.

[94].        One study found that only one third of plaintiffs receive compensation in foodborne illness cases tried before a jury.  Jean C. Buzby et al., U.S. Food & Drug Admin., Product Liability and Microbial Foodborne Illness, Agricultural Economics Reports No. 799, 25 (2001), https://www.ers.usda.gov/webdocs/publications/41289/19022_aer799f.pdf?v=0.  The USDA has identified additional challenges facing food poisoning plaintiffs. Id. at 24.

[95].        Louis R. Frumer, Products Liability § 48.06 Medico-Legal Aspects of Food Poisoning (2020), LEXIS.

[96].        Pulsed-field Gel Electrophoresis (PFGE), Ctrs. for Disease Control & Prevention (Feb. 16, 2016), https://www.cdc.gov/pulsenet/pathogens/pfge.html.  Whether a similar tool will be developed for Covid-19 remains to be seen, although it would be unlikely to help those already infected.

[97].        See, e.g., Craten v. Foster Poultry Farms Inc., 305 F. Supp. 3d 1051, 1061 (D. Ariz. 2018) (finding “sufficient circumstantial evidence to permit a jury to reasonably infer that [the plaintiff] more likely than not contracted his infection from raw chicken associated with the outbreak”).

[98].        See, e.g., Patterson v. Kevon, LLC., 818 S.E.2d 575, 579 (Ga. 2018) (“[The plaintiff showed that a] large number of persons who ate the food prepared by [the defendant] became ill; that some of those who became ill did not consume leftovers or other food at the rehearsal dinner or wedding; and that most fell ill within the same time frame as the [plaintiffs].”); Lohse v. Coffey, 32 A.2d 258, 260 (D.C. 1943) (affirming a jury verdict when the plaintiff “proved that another person who consumed the same foods at the same time (though with a different beverage) also became ill”).

[99].        See, e.g., Greenup v. Roosevelt, 267 So. 3d 138, 142 (La. Ct. App. 2019) (“[Plaintiff] need not negate every conceivable cause.”); Gardyjan v. Tatone, 528 P.2d 1332, 1334 (Or. 1974) (“The fact that there was another possible cause of the plaintiff’s illness is not fatal to his case.”).

[100].      See, e.g., China Doll Restaurants, Inc. v. MacDonald, 180 A.2d 503, 505 (D.C. 1962) (holding that a plaintiff who became ill shortly after eating at a restaurant, but whose only causal evidence was her own testimony the food did not taste good, did not establish causation); Landry v. Joey’s Inc., 261 So. 3d 112, 118–20 (La. Ct. App. 2018) (finding an “absence of evidence presented demonstrating any positive causal connection” when the plaintiff had demonstrated that she developed food poisoning after allegedly eating one of the defendant’s sandwiches).

[101].      How COVID-19 Spreads, Ctrs. for Disease Control & Prevention Control (Oct. 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.

[102].      Current science indicates that Covid-19 symptoms may manifest between two and fourteen days after exposure.  Symptoms of Coronavirus, Ctrs. for Disease Control & Prevention (May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.

[103].      As of October 13, 2020, the CDC reported over 7.7 million cases of Covid-19. CDC COVID Data Tracker, Ctrs. for Disease Control & Prevention (Oct. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

[104].      Sergio J. Campos, The Commonality of Causation, 46 Ohio N. U. L. Rev. 229, 253 (2020); Alexandra D. Lahav, Chancy Causation in Tort 14 (May 15, 2020) (unpublished manuscript), https://ssrn.com/abstract=3633923.

[105].      Campos, supra note 104, at 253.

[106].      Lahav, supra note 104, at 17.

[107].      Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 26 (Am. L. Inst. 2010) (“Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”).

[108].      Even the causal link between an individual’s contraction of lung cancer and smoking remains probabilistic.  Lahav, supra note 104, at 9.

[109].      Id. at 14.

[110].      Saul Levmore, Probabilistic Recoveries, Restitution, and Recurring Wrongs, 19 J. Legal Stud. 691, 692 (1990).

[111].      David Rosenberg, The Causal Connection in Mass Exposure Cases: A “Public Law Vision” of the Tort System, 97 Harv. L. Rev. 851, 859 (1984).

[112].      Id. See generally Levmore, supra note 110, at 719; Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. Legal Stud. 463 (1980) (discussing the role of probability in apportioning tort liability).

[113].      Michael Moore, Causation and Responsibility: An Essay in Law, Morals and Metaphysics 4–5 (2009); Jane Stapleton, Two Causal Fictions at the Heart of U.S. Asbestos Doctrine, 122 L.Q. Rev. 189, 192 (2006).

[114].      Courts developed market share liability under the cases brought against DES manufacturers.  DES, a drug administered during pregnancy, caused injury to the offspring after a long latency period.  The plaintiffs often were unable to identify which manufacturer’s drug their mother had ingested.  Courts developed the market share liability concept to address the causal proof problem, under which liability was assigned to a defendant based on its share of the DES market. See Sindell v. Abbott Labs., 607 P.2d 924, 937–38 (Cal. 1980); Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1078 (N.Y. 1989). 

[115].      See In re NFL Players Concussion Injury Litig., 821 F.3d 410, 439, 448 (3d Cir. 2016) (approving class certification and settlement); Lahav, supra note 104, at 19–21.

[116].      Lahav, supra note 104, at 20.

[117].     Asbestos is a mineral often used in building materials, vehicle brakes and clutches, and tile.  Asbestos, U.S. Dep’t Labor (July 31, 2020), https://www.osha.gov/SLTC/asbestos/.  Consistent exposure can lead to a myriad of diseases including lung cancer, asbestosis, colon cancer, and mesothelioma.  Id.  Factory workers, construction workers, and automotive mechanics are among those at risk given their constant exposure.  Id.

[118].      Karen Selby, Mesothelioma Statistics, Mesothelioma Ctr. (Aug. 19, 2020), https://www.asbestos.com/mesothelioma/statistics/.

[119].      William L. Anderson & Kieran Tuckley, How Much is Enough? A Judicial Roadmap to Low Dose Causation Testimony in Asbestos and Tort Litigation, 42 Am. J. Trial Advoc. 39, 48–49 (2018) (“There . . . appears to be no way at present to trace any specific fibers in the lung back to an actual source of exposure.”); Myra Paiewonksy Mulcahy, Note, Proving Causation in Toxic Torts Litigation, 11 Hofstra L. Rev. 1299, 1301–02 (1983).

[120].      See Holcomb v. Georgia Pac., LLC, 289 P.3d 188, 195–96 (Nev. 2012).

[121].      See Brian M. DiMasi, Comment, The Threshold Level of Proof of Asbestos Causation: The “Frequency, Regularity and Proximity Test” and a Modified Summers v. Tice Theory of Burden-Shifting, 24 Cap. U. L. Rev. 735, 738–41 (1995) (“The many types of asbestos products, the many possible places of exposure, the lack of direct evidence of particular product exposure, and the possibility of contributing factors have forced the courts to develop various standards of causation that are either separate from the two traditional tests or are variations of the same.”)

[122].      See Holcomb, 289 P.3d at 193–95.

[123].      Id. at 193–94.

[124].      Id. at 195.

[125].      Id. at 194.

[126].      Id. at 195.

[127].      Id.

[128].      Lahav, supra note 104, at 1, 14. 

[129].     Campos, supra note 104, at 234 (arguing that the relevant inquiry is whether the defendant’s conduct caused the population harm as a whole in unlawful “mass production” cases).

[130].      Id.

[131].      Id. at 264.  He noted that statistical proof supporting general causation was admitted to prove specific causation in the pesticide Roundup MDL. Id. at 259–60.

[132].      Lahav, supra note 104 (arguing that “the but-for test should be jettisoned” in tort cases where causation is based on probabilities).

[133].      Id. at 21.

[134].      Id. at 23.

[135].      U.S.C. §§ 300aa-14–34.

[136].      Agent Orange Act of 1991, 38 U.S.C.§ 101.

[137].      Victim Comp. Fund, September 11th Victim Compensation Fund 4 (2020), https://www.vcf.gov/sites/vcf/files/media/document/2020-03/VCF_Overview.pdf.

[138].      See Grey & Orwoll, supra note 3, at 77–78.

[139].      See, e.g., Ariz. Exec. Order No. 2020-12 (Mar. 23, 2020), https://azgovernor.gov/executive-orders (deeming grocery stores, media, hardware stores, educational institutions, laundry services, restaurants, day care centers, hotels, and other businesses to be essential businesses); Vt. Exec. Order. No 01-20 add. 6 (Mar. 24, 2020), https://governor.vermont.gov/sites/scott/files/documents/ADDENDUM%206%20TO%20EXECUTIVE%20ORDER%2001-20.pdf (deeming businesses engaged in health care operations, law enforcement and public safety, critical infrastructure and manufacturing, retail services for human needs, fuel products, transportation, trash collection, agriculture, mail, banking, and other services as “critical to public health and safety”).

[140].      See infra notes 135–37 and accompanying text. 

[141].      See infra notes 135–37 and accompanying text.

[142].      42 U.S.C. §§ 300aa-14–34.

[143].      National Vaccine Injury Compensation Program, Health Res. & Servs. Admin. (Jan. 2020), https://www.hrsa.gov/vaccine-compensation/index.html.

[144].      See id.

[145].      42 U.S.C. § 300aa-11(c).

[146].      42 U.S.C. § 300aa-14.

[147].      National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 82 Fed. Reg. 6,294, 6,295 (Jan. 19, 2017) (to be codified at 42 C.F.R. 100).

[148].      Id.

[149].      Id.

[150].      42 U.S.C. § 247d-6e.  For claims for injuries that may be caused by coronavirus vaccines, compensation will be distributed under the Countermeasures Injury Compensation Program, which is part of the PREP Act.  Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 et seq. (March 17, 2020), amending 42 C.F.R. § 110.100.

[151].      42 U.S.C. § 247d-6e(b)(5).

[152].      In the context of Covid-19, countermeasures can include antivirals, drugs, biologics, diagnostics, devices, or vaccines.  Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. at 15,202.

[153].      See Kevin J. Hickey, Cong. Rsch. Serv., LSB10443, The PREP Act and COVID-19: Limiting Liability for Medical Countermeasures 1 (2020) (“[The PREP Act serves to] encourage the expeditious development and deployment of medical countermeasures during a public health emergency.”).

[154].      See Ralph Blumenthal, How Judge Helped Shape Agent Orange Pact, N.Y. Times (May 11, 1984), https://www.nytimes.com/1984/05/11/nyregion/how-judge-helped-shape-agent-orange-pact.html (describing the judge’s warnings “that the veterans’ case had big problems” but that “a Brooklyn jury [would] be sympathetic to the veterans”).

[155].      Agent Orange Act of 1991, 38 U.S.C.§ 101.

[156].      38 U.S.C. 1116(a)(2); see also Agent Orange Exposure and VA Disability Compensation, U.S. Dep’t. Veterans Affs. (Sept. 18, 2020), https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/related-diseases/.

[157].      38 U.S.C. 1116(a)(1). The VA states that the presumption applies to veterans who served in Vietnam between January 9, 1962 and May 7, 1975 or in the Korean Demilitarized Zone between September 1, 1967 and August 31, 1971. Agent Orange Exposure and VA Disability Compensation, supra note 156.

[158].      Victim Comp. Fund, supra note 137, at 1, 4.

[159].      James Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, 124 Stat. 3623 (2011); Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act, Pub. L. No. 116-34, 133 Stat. 1040 (2019).

[160].      Victim Comp. Fund, supra note 137, at 7.

[161].      42 U.S.C. § 300mm-22(a).

[162].      Id.

[163].      Scott D. Szymendera, Cong. Rsch. Serv., R45969, The September 11th Victim Compensation Fund (VCF) 3 (2019).

[164].      Victim Comp. Fund, supra note 137, at 7.

[165].      Jim Pocius, Workers Compensation and Course of Employment, Int’l Risk Mgmt. Inst., Inc. (Feb. 2001), https://www.irmi.com/articles/expert-commentary/workers-compensation-and-course-of-employment.

[166].      See S.B. 241, 31st Leg., 2d Reg. Sess. (Alaska 2020); H.F. 4537, 91st Leg., Reg. Sess. (Minn. 2020); Wis. Stat. § 102.03(6) (2020).

[167].      Cal. Exec. Order N-62-20 (May 6, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.  Governor Newsom’s executive order created a rebuttable presumption that an employee who tests positive for Covid-19 within fourteen days of working at the employee’s place of employment caught the disease in the course of employment.  This presumption is “disputable” and does not apply if the employee’s place of employment is his own residence.  Id.

[168].      See Jon L. Gelman, Lessons from Asbestos Litigation Apply to Covid Claims 1, 8 (Aug. 4, 2020) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3659568 (calling for creation of federal fund to indemnify employers and workers’ compensation insurance companies for Covid-19 claims to maintain solvency).

[169].      See Elizabeth Chambee Burch, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation 32 (2019) (The values that accompany civil litigation include “deterrence, compensation, information production, victim empowerment, public participation in democratic trials, and equity before the law.”).

[170].     Emma Grey Ellis, How Health Care Workers Avoid Bringing Covid-19 Home, WIRED (Apr. 4, 2020, 8:00 AM), https://www.wired.com/story/coronavirus-covid-19-health-care-workers-families/ (describing how some healthcare workers “have moved into hotel rooms or sleep in their cars,” work “24-hour shifts to reduce the number of times they move between the hospital and home,” or “sent their children and families to stay with friends or grandparents rather than risk exposing them to the virus”).

[171].      See generally Andrew F. Popper, In Defense of Deterrence, 75 Alb. L. Rev. 181 (2012) (discussing the role of deterrence in tort law and tort reform).

[172].      See Jason R. Bent, An Incentive-Based Approach to Regulating Workplace Chemicals, 73 Ohio St. L.J. 1389, 1394–95 (2012) (“[T]he current workers’ compensation and OSHA systems are inadequate to correct the market[’s] failure[]” to take proper precautions.).

[173].      Why is OSHA AWOL?, N.Y. Times (June 21, 2020), https://www.nytimes.com/2020/06/21/opinion/coronavirus-osha-work-safety.html (“[T]he federal agency meant to protect America’s workers continues to sit on the sidelines.”). 

[174].   See supra note 166. 

By Sophia Pappalardo & Kenya Parrish

In re: Murphy-Brown, LLC

In this civil case, the Petitioner requested mandamus relief from a gag order issued by the United States District Court for the Eastern District of North Carolina. The gag order imposed strict requirements on participants and potential participants of interrelated nuisance suits brought against hog farms in North Carolina. The Fourth Circuit found the district court’s order to be defective and granted the petition. Thus, the Fourth Circuit directed the district court to vacate the gag order and allow the parties to begin their suits again under guidelines set forth by the Fourth Circuit, but only if warranted by exceptional circumstances.

 

By Elliott Beale and Cassidy Webb

Samuel James Ervin III was born on March 2, 1926 in Morganton, North Carolina.[1] Judge Ervin joined the U.S. Army and served as a lieutenant from 1944 to 1946.[2] After Judge Ervin earned his Bachelor of Science from Davidson College in 1948, he received his LL.B. from Harvard Law School in 1951.[3] Following another two year stint in the U.S. Army, Judge Ervin returned to Morganton to work in private practice.[4] Judge Ervin worked at Patton, Ervin, and Starnes, where he became associated in 1957.[5] While working in private practice, Judge Ervin served as a solicitor for the Burke County Board of Commissioners from 1954 to 1956 and North Carolina State Representative from 1965 to 1967.[6] Governor Dan K. Moore named Judge Ervin to fill a vacancy on the North Carolina Superior Court for the 25th Judicial District in July 1967.[7] Judge Ervin served on the North Carolina Superior Court until 1980.[8]

On April 2, 1980, President Jimmy Carter nominated Judge Ervin to a new seat on the U.S. Court of Appeals for the Fourth Circuit.[9] He was confirmed by the Senate on May 21, 1980 and received his commission on May 23, 1980.[10] He served as Chief Judge of the Fourth Circuit from 1989 to 1996.  While serving as Chief Judge, Judge Ervin was also a member of the Judicial Conference of the United States from 1989 to 1995.[11] His service terminated on September 18, 1999 upon his death.[12]

One of the most interesting cases Judge Ervin said he presided over as a North Carolina judge was when the court effectively rewrote James B. Duke’s, founder of Duke Power, will.[13] Judge Ervin had to determine what Duke would have done with the dispositional investment his foundation had in Duke Power Company had Duke known about the Tax Reform Act at the time he made his will.[14] Judge Ervin also presided over one of the first inverse condemnation cases in Charlotte.[15] He had to determine whether airplanes could inversely condemn the property by flying at low altitudes regularly over people’s houses and if this enabled the individuals to recover damages for their property’s loss of value.[16]

Following his death, Judge James Dickson Phillips, Jr. fondly remembered Judge Ervin as the “very model of prudence and temperance, of fortitude and fairness.”[17] Judge Phillips described Judge Ervin as a man who wore no masks and acted with integrity, courtesy, and civility in all circumstances.[18]

Judge Ervin was survived by his wife, two daughters, and two sons.[19] His sons, Samuel “Jimmy” Ervin IV and Robert C. Ervin, both followed in their father’s footsteps and became judges.[20] Judge Ervin IV currently serves as an Associate Justice of North Carolina Supreme Court, and Judge R. Ervin currently serves as a North Carolina Superior Court judge.[21] Judge Ervin IV says one of the biggest lessons his father taught him “was to remember that behind any case that comes before the court there are real people with real problems whose lives will be substantially affected by what the members of the court do.”[22]

 

 

[1]Ervin, Samuel James III, Fed. Jud. Ctr., https://www.fjc.gov/node/1380526 (last visited Oct. 23, 2018).

[2]Id.

[3]Id.

[4]Id.

[5]Jimmy Rhyne, 50 Years Ago, News Herald (Jul. 10, 2017), https://www.morganton.com/townnews/law/years-ago/article_30f8f7a0-6586-11e7-8b89-b33a295af7d6.html.

[6]Fed. Jud. Ctr., supra note 1.

[7]Rhyne, supra note 5.

[8]Fed. Jud. Ctr., supra note 1.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Interview by Hilary L. Arnold with Judge Sam J. Ervin III, Chief Judge of the Fourth Circuit, in Morganton, NC, (Feb. 24, 1993 & Apr. 8, 1993), https://dc.lib.unc.edu/cdm/ref/collection/sohp/id/12622.

[14]Id.

[15]Id.

[16]Id.

[17]James D. Phillips, Jr., Sam J. Ervin III: A Tribute, 78 N.C. L. Rev. 1705, 1706 (2000).

[18]Id.

[19]Samuel James Ervin 3d, 73 Federal Judge, N.Y. Times (Sept. 21, 1999), https://www.nytimes.com/1999/09/21/us/samuel-james-ervin-3d-73-federal-judge.html.

[20]Sharon McBrayer, Taking the Bench: Sam Ervin Sworn in as NC Supreme Court Judge, News Herald (Jan. 8, 2015), https://www.morganton.com/news/taking-the-bench-sam-ervin-sworn-in-as-nc-supreme/article_44c98846-9796-11e4-a117-f7ef4aff205c.html.

[21]Id.

[22]Id.

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By Mackenzie Bluedorn and Jacqueline Canzoneri

Relevant Facts

This case began as an age discrimination claim.  The Equal Employment Opportunity Commission (“EEOC”) initially challenged that Baltimore County’s (“County”) retirement plan violated the Age Discrimination in Employment Act (“ADEA”) because its age-based contributions required older employees to pay higher percentages of their salaries.[1]  When adopting its retirement benefit plan in 1945, the County stated that employees were eligible to retire and receive pension benefits at the age of 65, no matter how long the individual had actually been employed and contributing the plan.[2] Because the payments of an employee who joined the plan at an older age would accrue less interest than payments made by younger employees before the employees actually started to draw from the fund, the County determined that older employees should be charged higher rates.[3] Although the retirement benefit plan was amended several times over the years, the different contribution percentages based on age were never fully eliminated.[4] In response to this policy, the EEOC first brought civil suit in the District Court of Maryland in 2007, requesting injunctive relief to bar the discriminatory contribution percentages and reimburse employees subject to the age discrimination through back pay.[5]

 

Procedural Posture

This opinion was the third issued in a series of appeals for this case.  In 2010, the court of appeals initially reversed and remanded the district court’s holding in favor of Baltimore County, prompting the district court to reconsider whether the retirement benefit rates violated the ADEA.[6]  The issue once again reached the court of appeals for opinion in 2014. The second time, the district court had determined that the rates were impermissible and granted partial summary judgment on liability in favor of the EEOC, but the court of appeals then remanded again for consideration of damages.[7]  Although the parties had entered into a consent order for injunctive relief, the order did not discuss monetary relief and stated that the issue would be considered on a later date.[8]

The case then reached the court of appeals for a third time in 2018 after the EEOC appealed the district court’s determination on damages that it had discretion to deny an award of back pay otherwise afforded under the ADEA.  In reaching its decision, the district court held that it had discretion over whether or not to award that remedy or, in the alternative, that even if back pay were mandatory under enforcement of the ADEA, the court’s equitable powers still granted it the authority to deny back pay because the EEOC delayed so long in originally bringing this case.[9] The underlying issue for the court of appeals to consider on this third appeal was under the ADEA, is the monetary award of retroactive back pay discretionary, after liability has been established.

 

Plaintiff-Appellant Argument: Equal Employment Opportunity Commission (“EEOC”)

While Baltimore County grounded its argument in statutory language of the ADEA, the EEOC highlighted specific Fair Labor Standards Act (“FLSA”) provisions that have been incorporated into the ADEA.[10]  Most notably, the ADEA adopted the FLSA provision that violators “shall be liable” for back pay.[11] The EEOC argued that because back pay is a mandatory legal remedy under the FLSA, and because the ADEA adopted this language, it is not a discretionary issue. The choice of language reflected Congress’ intent that remedies under both of these statutes should be construed in the same manner. Thus, the District Court lacked discretion to determine whether back pay was owed.

 

Defendant-Appellee Argument: Baltimore County (“County”)

Baltimore County argued that back pay was properly denied because the district court is granted wide authority under the ADEA.  Specifically, the County claimed that the court has broad authority under 29 U.S.C. § 626(b) “to grant such legal or equitable relief as may be appropriate,” which could include the denial of back pay.[12]  Under broad authority, the court should be allowed to determine appropriate remedies, similar to the discretionary nature of back pay under Title VII. The County tried to expand precedent, by relying on various United States Supreme Court cases regarding Title VII pension issues.[13]  In those cases, the Court held that retroactive monetary awards are discretionary under Title VII and did not award any retroactive monetary relief.[14]

As the district court itself determined following the second remand of this case, it would be equitable to deny back pay in this instance, even if it were mandatory under the ADEA, because the EEOC had delayed initiating this suit for years.[15]  The County emphasized the long delay in the EEOC’s action, which led to the County incurring substantially more liability in back pay.[16]

 

Holding & Rationale

The Court of Appeals for the Fourth Circuit agreed with the EEOC’s interpretation of the ADEA’s language and concluded that retroactive monetary award of back pay is mandatory, not discretionary, upon the finding of liability.  The initial matter of liability was already decided through issuance of partial summary judgment in favor of the EEOC following the first remand of the case. To assess the statutory language of the ADEA, the court considered the plain language of the statute, congressional intent, United States Supreme Court precedent, and legislative history.

The court addressed the plain language of enforcement under 29 U.S.C. § 626(b).  As a threshold matter, the court stated that the ADEA was a remedial statute and therefore warrants liberal interpretation. Furthermore, because specific FLSA language regarding back pay was incorporated into the ADEA enforcement provision, interpretation of the provision should mirror prior interpretations of the relevant back pay provisions in the FLSA.[17]  As such, under the FLSA, retroactive monetary damages are considered mandatory. Thus, by extension, there was an apparent congressional intent that such damages should also be mandatory under the ADEA.[18]

In regard to relevant precedent, the court’s touchstone of inquiry was a United States Supreme Court case, Lorillard v. Pons,[19] where the Court applied a similar analytical framework while interpreting another portion of the ADEA.[20]  There, the Court stated that since the ADEA adopted specific FLSA language, it should be interpreted as its original counterpart was interpreted.[21] The Fourth Circuit also rejected the County’s reliance on the Title VII pension cases because there, back pay was an equitable remedy, whereas here under the ADEA, back pay would be a legal remedy.[22]

Next, the court considered legislative history.  While drafting the enforcement clause of the ADEA, Congress was faced with various potential enforcement mechanisms.[23]  Ultimately, Congress specifically chose to incorporate FLSA remedial measures into the ADEA.[24] This conscious decision of incorporation, and rejection of other options, is relevant legislative history that assists with judicial interpretation of statutory language.[25]

Finally, the court next addressed the district court’s alternative holding that, even if the statutory language indicated back pay was mandatory, the court still had discretion through its equitable powers.  The court of appeals fully rejected the district court’s comparison of the ADEA to Title VII, under which the Supreme Court had held that retroactive monetary awards were, in fact, discretionary.[26] The court of appeals explained that an award of back pay under Title VII was up to a court’s discretion because it was an equitable remedy; under the ADEA, however, back pay was a legal remedy, and only the amount of back pay was open-ended, to be determined at the discretion of the factfinder.[27]

 

Conclusion

The district court’s opinion was vacated and remanded for the consideration of the amount of back pay owed to the affected employees under the ADEA.

 

 

[1] EEOC. v. Baltimore Cty., 747 F.3d 267, 1–2 (4th Cir. 2014).

[2] Id. at 3.

[3] Id. at 4–5.

[4] Id. at 6.

[5] Id. at 7.

[6] EEOC. v. Baltimore Cty., No. 16-2216, 2018 U.S. App. LEXIS 26644, at *2 (4th Cir. Sept. 19, 2018).

[7] Id.

[8] Id.

[9] Id. at *2–*3.

[10] Id. at *4–*5.

[11] Id. at *5.

[12] Id. at *3.

[13] Id. at *9.

[14] Id.

[15] Id. at *3.

[16] Id. at *11.

[17] Id. at *5–*6.

[18] Id. at *7.

[19] 434 U.S. 575 (1978).

[20] Baltimore Cty., 2018 U.S. App. LEXIS 26644, at *8.

[21] Id.

[22] Id. at *10.

[23] Id. at *8.

[24] Id. at *9.

[25] Id.

[26] Id. at *10.

[27] Id.

 

 

 

 

 

By: Thomas Cain & Noah Hock

Equal Employment Opportunity Commission v. Baltimore County

In this case, the Equal Employment Opportunity Commission (“EEOC”) sought back pay for employees based on Baltimore County’s discriminatory practice involving improper contribution rates to the county’s age-based employee benefit plan. The district court found the county liable under the Age Discrimination in Employment Act (“ADEA”) and granted the EEOC partial summary judgment, but it denied a motion for back pay because the EEOC’s undue delay in investigating substantially increased the county’s back pay liability. The Fourth Circuit vacated the district court decision, ruling that an award of back pay is mandatory under the ADEA after a finding of liability. Thus, the case was remanded for a determination of back pay amounts to which affected employees are entitled.

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

Schilling v. Schmidt Baking Company, Inc.

In this civil case, plaintiffs appealed the district court’s dismissal of their claims for overtime wages under the Federal Labor Standards Act (FLSA), the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law.  Under the FLSA, professional motor carriers, like Schmidt Baking Company, are generally exempt from the overtime wages requirement.  However, Congress recently waived this exemption for employees whose work affects the safety of vehicles weighing 10,000 pounds or less.  In concluding that the plaintiffs were protected by the FLSA waiver, the Fourth Circuit reversed the district court’s dismissal of the FLSA claims but affirmed the court’s dismissal of the claims brought under Maryland law.

Juniper v. Zook

In this criminal case, Anthony Juniper appealed the district court’s denial of his request for an evidentiary hearing concerning his claim that prosecutors failed to turn over exculpatory and impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).  The Fourth Circuit vacated the district court’s decision as to Juniper’s Brady claim, concluding that the district court abused its discretion by dismissing the claim without an evidentiary hearing.  The case was remanded to the district court for further proceedings.

Hensley v. Price

In this civil case, Deputies Michael Price and Keith Beasley appealed the district court’s denial of their motion for summary judgment, which asserted federal qualified immunity and related North Carolina state law defenses.  The Fourth Circuit affirmed the district court’s judgment, concluding that the deputies were not entitled to qualified immunity because their use of force was objectively unreasonable under the circumstances described through plaintiffs’ evidence.  In addition, the Fourth Circuit concluded that the deputies’ related state law defenses failed under the evidence taken in the light most favorable to the plaintiffs.         

OpenRisk, LLC v. Microstrategy Services Corp.

In this criminal case, OpenRisk appealed the district court’s grant of summary judgment in favor of Microstrategy, in which the court held that Federal copyright laws preempted OpenRisk’s computer fraud claims. The Fourth Circuit affirmed the district court’s judgment, concluding that the plaintiff’s computer fraud claims were preempted by the federal Copyright Act since the plaintiff’s sought liability based upon claims that, at their “core,” are not “qualitatively different” from the federal claims.

Maguire Financial, et al. v. PowerSecure International, Inc., et al.

In this civil case, Maguire Financial appealed the district court’s dismissal of its amended complaint containing claims of securities fraud. The Fourth Circuit affirmed the district court’s dismissal, concluding that Maguire Financial’s complaint failed to adequately allege scienter since a comprehensive analysis of the facts within the amended complaint did not create a “cogent and compelling” inference of scienter.  

United States v. Banker

In this criminal case, Banker appealed his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity. The Fourth Circuit affirmed Banker’s convictions, concluding that the district court’s jury instructions did not misstate the law and that there was sufficient evidence concerning the elements that the defendant knew or recklessly disregarded that the minor was underage.

 

By: Ashley Collette and Evan Reid

On October 12, 2017, the Fourth Circuit issued a published opinion in the civil case Siena Corporation v. Mayor and City Council of Rockville, Maryland. In its colorfully-worded decision, the court affirmed the dismissal of the “garden-variety zoning dispute recast in constitutional terms.”

Facts and Procedural History 

In 2013, Siena Corporation set out to construct an “ezStorage” self-storage facility in Rockville, Maryland. The property on which it chose to build was located down the block from an elementary school. Parents at the school expressed fears that the storage facility would lead to safety concerns for the elementary-aged students, including an increase in traffic and “U-Haul-style trucks” driven by inexperienced drivers, the storage of illegal or hazardous materials, and the potential release of asbestos. In response to these concerns, the City Council proposed the Planning Commission adopt a new zoning amendment that prohibited self-storage facilities within 250 feet of public schools. The Planning Commission recommended that the amendment be denied and held a public hearing on the proposed amendment.

While this was taking place, Siena obtained conditional site plan approval from the Planning Commission for their proposed “ezStorage” facility. However, this was conditional approval awaiting Siena’s full compliance with nineteen additional conditions as well as reviews by numerous local agencies.

The Rockville City Council ultimately adopted the zoning amendment prohibiting self-storage facilities in February of 2015. Siena brought suit against the City Council, the Mayor and two Councilmembers who had supported the amendment, and a Rockville resident who had urged its adoption (collectively “the Council”) seeking judicial review of the adoption of the zoning amendment in State court. Siena alleged in its complaint that the amendment violated its due process and equal protection rights under the Fourteenth Amendment and that the newly adopted zoning amendment targeted them specifically.

The Council removed the case to federal court and then moved to dismiss. The federal district court dismissed Siena’s federal due process claim, concluding that “Siena lacked a protected property interest in the ezStorage facility’s construction because it had not applied for a building permit.” Regarding Siena’s equal protection claim, the court held the zoning amendment had a rational basis and was thus constitutional. Siena appealed the district court’s decision to the Fourth Circuit, which reviewed the court’s decision de novo.

Due Process

To prevail on its claim that it was denied due process, Siena needed to show “(1) that it possessed a ‘cognizable property interest, rooted in state law,’ and (2) that the Council deprived it of property interest in a manner ‘so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.’” The Court found that Siena failed to meet either prong of the test. As to the first prong, Siena had not satisfied the conditions necessary to file for a building permit. But even if it had, the Court explained that zoning issues are local matters that should be decided at the local level. The Fourth Circuit noted that “[e]ven if Siena had a protected property interest here, the enactment of the zoning text amendment would fall short of a substantive due process violation.” Under its analyses of the second prong, the Court held that the action taken by the Council (the passing of an amendment barring self-storage businesses within 250 feet of public schools) was inside the limits of legitimate governmental action. The support for that conclusion was based on evidence that the Council heard testimony about the negative effects of self-storage sites and could have reasonably believed that testimony.

Equal Protection

The Fourth Circuit quickly disposed of Siena’s claim that the amendment violated the equal protection clause by pointing out that the action in question did not involve any rights protected by a higher level of scrutiny than rational basis. The Court stated that “the zoning text amendment is rationally related” to “the state interest in protecting schoolchildren.” Additionally, the Court noted that legislatures have great discretion in drafting statutes that involve economic matters, and this statute did not target Siena but rather applied equally to all self-storage businesses.

Conclusion

This case reaffirms the deference given to local authorities in zoning matters. The Fourth Circuit is hesitant to intervene absent a fundamental right at stake or targeting language.

Weekly Roundup: 10/23-10/27
By: Hanna Monson and Sarah Spangenburg

United States v. Julian Zuk
In this criminal case, the Government appealed the district court’s sentencing of defendant Julian Zuk as being “substantively unreasonable” after he had pled guilty to possessing child pornography as part of a plea agreement. The Fourth Circuit vacated the sentence and remanded for resentencing, reasoning that the 26 month time served sentence was not sufficient “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment.” 18 U.S.C. § 3553(a)(2)(A).

Campbell McCormick, Inc. v. Clifford Oliver
In this civil case, Campbell McCormick, Inc appealed an order of a federal district court that severed and remanded Oliver’s asbestos exposure claims against it. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction and also held that the elements for jurisdiction under the collateral order doctrine were not met.

SAS Institute, Inc. v. World Programming Limited
In this copyright case, SAS alleged that WPL breached a license agreement for SAS software and violated copyrights on that software. The Fourth Circuit agreed with the district court that the contractual terms at issue were ambiguous and that SAS had shown that WPL violated the terms. However, on the copyright claim, the Fourth Circuit vacated the district court’s judgment and remanded with instructions to dismiss as moot.

United States v. Shawntanna Lemarus Thompson
In this criminal case, Thompson pled guilty to a drug offense and being a felon in possession of a firearm. Thompson appealed his sentence after the district court increased his sentence when it found that Thompson’s previous state conviction for assault inflicting serious bodily harm constituted a “crime of violence” under § 4B1.2 of the U.S. Sentencing Guidelines. The Fourth Circuit affirmed the sentence because the residual clause of § 4B1.2 authorized the district court’s increased sentence.

By M. Allie Clayton

Today, in the civil case of Barton v. Constellium Rolled Products-Ravenswood, LLC., a published opinion, the Fourth Circuit affirmed the District Court in granting summary judgment for the company. The court stated that the governing collective bargaining agreement did not provide for vested retiree health benefits, and thus the former employer was within their power to unilaterally alter its retiree health benefits program.

Facts

A class of retirees and their union, The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industry & Service Workers International Union AFL-CIO/CLC (“The Union”), filed this action. The union had represented the retirees since 1988 and had negotiated collective bargain agreements with their previous employer—Constellium Rolled Products-Ravenswood, LLC (“Constellium”).

The Parties’ Agreement

There was a specific provision of their collective bargaining agreement (“CBA”) that governed group health insurance benefits: Article 15. The 2010 provision of Article 15 stated:

  1. The group insurance benefits shall be set forth in booklets entitled Employees’ Group Insurance Program and Retired Employees’ Group Insurance Program, and such booklets are incorporated herein and made a part of the 2005 Labor Agreement by such reference.
  2. It is understood that this agreement with respect to insurance benefits is an agreement on the basis of benefits and that the benefits shall become effective on July 15, 2010, except as otherwise provided in the applicable booklet, and further that such benefits shall remain in effect for the term of this 2010 Labor Agreement.

In addition to Article 15 and the various booklets incorporated by reference therein (which operated as summary plan description (“SPD”)), Constellium (or its predecessors) and retirees agreed to further parameters governing retiree health benefits that were contained in “Cap Letters.” The cap letters throughout the years governed how Constellium (or its predecessors) would allocate health care spending of employees based on pre- and post-January 2003 retirees. The third cap letter, which took effect on January 1, 2011, was unique in that it took effect after the concurrently-negotiated collective bargaining agreement did.

The Unilateral Change Leading to Litigation

While the parties were negotiating a new CBA in July 2012, Constellium proposed a change to Article 15 that would extend the cap on its contributions to retiree health benefits to those who retired before January 1, 2003, and freeze its Medicare Part B premium reimbursement amount for all hourly retirees at $99.90. The Union refused to bargain about this issue because it asserted that the retiree health benefits had already vested. Constellium notified the Union that it planned to make those changes on January 1, 2013, and made those changes on that day.

Procedural History

After discovery, the parties filed cross-motions for summary judgment. The district court granted the company’s motion and dismissed the case.

The Issue

Did Constellium’s unilateral alteration of those benefits breach its obligations under the CBA?

Reasoning

The Supreme Court in M&G Polymers USA, LLC v. Tackett stated that courts must “interpret collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” Therefore, as this court was interpreting the collective bargaining agreement with the parties, it was bound by ordinary contract principles. Those ordinary contract principles included the rule that states that in order to find that the retiree health benefits vested, there must be unambiguous evidence that indicates that the parties intended that outcome.

The Fourth Circuit found that the plain language of the CBA and the SPD indicated that the benefits did not vest. They found that there was explicit durational language in the retiree health benefits SPDs. Bolstering that conclusion was the contrast of the retiree health benefits section with a different section of the SPD that stated unambiguously that the pension plans cannot be reduced and they are paid monthly for the participants. Because the language was unambiguous in another section, it clearly demonstrated that the parties knew how to express their intent that certain benefits should vest.

Disposition

Because there were clear temporal limitations on the employee health benefits, the retirees’ and the Union’s arguments that the benefits had already vested cannot be upheld. Therefore, the grant of summary judgment in favor of Constellium by the district court is affirmed.