Wake Forest Law Review
13Nov

Palmer v. Amazon: A Case Study In Textualism And The Fixed-Meaning Canon

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14 Wake Forest L. Rev. Online 112

Michael Showalter[1]

Introduction

A recent Second Circuit panel failed to heed the fixed-meaning rule of statutory interpretation, and its flawed opinion highlights the rule’s importance to the rule of law. In Palmer v. Amazon, the Second Circuit held that New York’s workers-compensation exclusivity does not reach suits for injunctive relief. As in many states, New York statutory law provides that an employer’s obligation to pay workers’ compensation “shall be exclusive” and “in place of any other liability whatsoever” to an employee for workplace injury. All agree that the provision bars workplace-injury claims for monetary relief, but whether the provision also bars claims for injunctive relief—whether the word liability encompasses injunctions—is contested. The Second Circuit held that the provision does not reach suits for injunctive relief because (in the court’s view) being enjoined does not make an employer liable.

While that conclusion may hold intuitive appeal to modern readers engulfed in modern language usage, it is indefensible as a matter of original meaning. The evidence of original meaning is overwhelming—when the statute was enacted in 1914, liability incontestably encompassed injunctive relief. The Second Circuit reached the contrary conclusion by ignoring the evidence.

Because the relevant statutory language involves an extraordinarily consequential difference between original meaning and modern meaning, Palmer highlights the necessity of the fixed-meaning rule. By fixing statutory meaning at the time of enactment, the rule anchors case outcomes to the law actually enacted. When later generations apply legal provisions by reference to modern language usage, by contrast, they are applying a different law—one that the legislature never adopted. That’s what the Second Circuit did in Palmer: by substituting its own modern understanding of the word liability for that word’s original meaning, the court effectively amended the statute to impose a set of rights and obligations different from what the enacted statute imposes.

I take no position on the policy result, but any policy suboptimality should be resolved through the legislative process rather than by judicial fiat. The New York Court of Appeals should correct the Second Circuit’s error when the opportunity arises, and other courts should take care to avoid replicating the error whether in the workers-compensation context or elsewhere.

I. Background

Section 10 of the New York Workers’ Compensation statute establishes a scheme that uses employer funding to guarantee compensation for injured workers, and in exchange, Section 11 makes that compensation the exclusive remedy for workplace injury.[2] In full, Section 11 begins:

Alternative remedy. 1. The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom . . . .[3]

In Palmer, a group of Amazon employees sued Amazon in the Eastern District of New York over certain “workplace COVID-19 policies, practices, and procedures.”[4] They asserted causes of action for public nuisance and violation of New York’s labor law.[5] They acknowledged that their alleged injuries arose from the workplace, but argued that Section 11 did not apply because they sought injunctive relief rather than damages.[6]

Because workplace-injury plaintiffs generally seek damages, when the suit was filed only a handful of courts had considered whether workers-compensation exclusivity bars claims for injunctive relief. None of those courts considered original meaning, and each court concluded that prospective relief was not barred.[7] Several treatises also had concluded without examining original meaning that state workers-compensation statutes do not bar claims for injunctive relief.[8] The district judge agreed with Amazon, however, that “[a]llowing plaintiffs to avoid [Section 11 exclusivity] by seeking only injunctive relief would thwart the purposes of the statute and the trade-offs embodied in it.”[9]

In October 2022 the Second Circuit reversed, as relevant here, concluding that Section 11 “does not bar claims for injunctive relief.”[10] But the Second Circuit did not seriously engage the issue and its cursory analysis is easily rebutted.

II. Liability Encompassed Injunctive Relief at the Time of Enactment

Because it provides that Section 10 liability is exclusive of all alternative remedies for workplace injury, Section 11 is titled “Alternative remedy.” Paraphrased for simplification, Section 11 reads:

An employer’s workers-compensation liability shall be exclusive and in place of any other liability whatsoever to the employee or his or her family members or anyone entitled to recover damages on his or her behalf.

It is incontestable that when determining whether Section 11 bars claims for injunctive relief, the sole interpretive question concerns the scope of the term liability. If that term means monetary or retrospective relief only, then Section 11 does not reach claims for injunctive relief. But if the meaning of liability encompasses injunctive relief, then Section 11 bars claims for injunctive relief because Section 10 liability is “exclusive and in place of” that liability. The only question, to repeat, is whether being enjoined makes an employer “liab[le]” as that term is used in Section 11.

While courts often must interpret legal terms in the face of conflicting evidence, the evidence here is wholly one-sided: the term liability included both monetary and injunctive relief when the New York Workers’ Compensation statute was enacted in 1914. That’s most obvious from enactment-era dictionaries,[11] which explain that liability referred broadly to “[t]he state of being bound or obliged in law or justice [i.e., equity] to do, pay, or make good something; legal responsibility.”[12] To be liable, likewise, was to be bound in law “or equity.”[13]

By specifically naming equitable relief as a form of liability, these dictionary definitions provide dispositive evidence that the term liability included injunctions at the time of enactment. These definitions do not merely encompass injunctions with their scope—they single out equitable relief as a prototypical kind of liability. A court interpreting a statutory reference to “animals,” for example, may need to grapple with whether an oyster is an animal for purposes of the statute because although oysters technically are animals, they are far from the prototype. Here, by contrast, the dictionary definitions leave no doubt that being enjoined is a prototypical form of liability because they specifically name it as such. A trustworthy dictionary definition that includes “e.g., x” ends all disputes about whether x belongs in the category being defined.

Far from contradicting the dictionaries, other evidence from around the time of enactment emphatically supports them. In 1949, a time much closer to enactment than we are today, the Second Circuit observed that liability is “quite differentiated from a mere duty to pay damages.”[14] And in 1995, the New York Court of Appeals cited cases from 1943 and 1960 for the assertion that “courts have rejected the proposition that ‘liability’ means money damages only” and concluded that “‘liability,’ as a legal term, has an appreciably broader meaning than pecuniary obligations.”[15] Liability, the 1949 Second Circuit explained, is simply the “opposite of immunity.”[16] If a person is not liable, therefore, the person is immune from suit.[17]

For that reason, the New York Court of Appeals explained in 1934 that the New York Workers’ Compensation statute “covers the entire field of remedy against an employer for industrial accident.”[18] A judge for the Eastern District of New York likewise stated in 1943 that the workers-compensation scheme is “exclusive of all other remedies.”[19] The “entire field of remedy,” of course, includes injunctions.[20] Section 11 “destroys the right of action of the employee and his personal representatives against his employer,” a New York court explained in 1945, regardless of the remedy sought.[21]

Statutory purpose points in the same direction. The Workers’ Compensation statute was a “quid pro quo”[22] in which “both classes, employer and employé, gained benefits and made concessions.”[23] Specifically, workers gained guaranteed compensation for workplace injury, while employers gained immunity from workplace-injury suits, which included the “avoidance of litigation” and associated “expense.”[24] After paying for guaranteed compensation, the deal went, employers would be off the hook for “any other liability whatsoever.”[25] Putting them back on the hook through litigation and injunctions foils the bargain by upending one side of the quid pro quo.

Finally, statutory context also supports the view that Section 11 reaches claims for injunctive relief. Because Section 10 outlines the workers’ end of the deal (guaranteed compensation), it repeatedly uses the narrow term “compensation.” But Section 11, which establishes the employers’ end of the deal (no other remedy), switches to the broader terms “[r]emedy”—in its title, no less[26]—and “liability.” This variation in word choice suggests that the legislature used the broader terms in Section 11 “intentionally.”[27]

In sum, whatever liability means now, it is crystal clear that at the time of enactment, liability encompassed injunctions.

III. The Second Circuit Failed to Engage Original Meaning

In concluding that Section 11 does not bar claims for injunctive relief, the Second Circuit butchered multiple fundamental principles of statutory interpretation and failed to even mention the vast evidence establishing that the term liability encompassed injunctions at the time of enactment. The Second Circuit based its holding entirely on (1) a textual canon that obviously has no application here; and (2) the non sequitur that a statute intended to bar claims for monetary relief cannot also be intended to bar claims for injunctive relief. Remarkably, on an interpretive question turning entirely on the scope of the term liability, the Second Circuit offered no argument whatsoever about that term’s original meaning.

First, the Second Circuit invoked the ejusdem generis canon, asserting that the “any other liability whatsoever” phrase “cannot be divorced from the monetary awards listed later in the same sentence: ‘damages, contribution, or indemnity,’”[28] but that canon is undeniably inapplicable. Ejusdem applies when there is a “series of specific items ending with a general term,”[29] and the general term serves as a “catchall”—for example: “dogs, cats, horses, cattle, and other animals.”[30] Here, the Section 11 term “liability” does not belong to a list at all, much less a list starting with specific kinds of liability that could narrow the meaning of the emphatically broad phrase “any other liability whatsoever.”

The “damages, contribution or indemnity” phrase concerns something else entirely. As discussed, the portion of Section 11 that describes the scope of the statute’s exclusivity provides that Section 10 liability “shall be exclusive and in place of any other liability whatsoever.” The next word, importantly, is “to”—after stating the scope of exclusivity, Section 11 lists persons to whom the employer is not liable. Specifically, the employer is not liable “to” the “employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise.” The reference to damages merely provides that people seeking damages on the worker’s behalf are no less barred by workers-compensation exclusivity than the worker herself. This portion of Section 11 says nothing about the scope of the claims those persons cannot bring.

If ordinary principles of language usage were not enough, there are additional reasons the reference to representatives seeking damages cannot modify the meaning of liability. Most fundamentally, the phrase “damages, contribution or indemnity” did not exist in the statute when the term liability was first included.[31] The Second Circuit’s position requires the implausible view that the New York legislature radically altered the meaning of liability implicitly by elsewhere adding a phrase designed to ensure that Section 11 barred persons seeking damages on a decedent’s behalf. And it was natural for the legislature to use “damages, contribution or indemnity” without referring to injunctive relief because it would be quite anomalous for a representative of an injured or killed employee to bring a claim for injunctive relief on the employee’s behalf. The reference to representatives seeking damages has no bearing on the scope of the liability term.

Second, the Second Circuit emphasized cases explaining that Section 11 bars claims for monetary relief,[32] but those cases do not say Section 11 bars only claims for monetary relief. As the New York state courts explained in the years following enactment, the statute “covers the entire field of remedy against an employer for industrial accident.”[33] In fact, the Second Circuit apparently missed that in one of its own quotations the quoted court explained that Section 10 liability is “exclusive of all other rights and remedies.”[34] The Second Circuit quoted cases stating that employers are protected from “large damage verdicts which the statute was intended to foreclose,”[35] but that fact does not mean employers are not also protected from injunctions. Because no one sought an injunction in those cases, these courts simply had no reason to address whether Section 11 reaches injunctions.

Leaning on its perception of what “the legislature was concerned primarily with,”[36] the Second Circuit overlooked that it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[37] That injunction suits have not always been at the forefront of legislative and judicial minds when considering Section 11 simply reflects that injured employees almost always seek damages rather than injunctive relief. Indeed, the Palmer plaintiffs did not point to a single prior case in which a plaintiff argued that it could circumvent Section 11 by seeking injunctive relief.

The Second Circuit asserted that the New York legislature “could have” “extend[ed] the . . . exclusivity provision to injunctive relief” with “a statement,”[38] but that question-begging assertion ignores that the legislature did extend the provision to injunctive relief by using a term that clearly encompasses “the entire field of remedy”[39] whether in “law or equity.”[40] As the 1949 Second Circuit suggested, it is actually the opposite inference that is warranted—“[h]ad a restricted meaning been intended, it would surely have been simple, indeed, to limit the statutory provision to . . . damages” rather than using the broader term liability.[41]

IV. Original Meaning Controls

Whatever the term liability “might call to mind” when heard by “ears today” makes no difference because “modern intuition” is irrelevant.[42] That is because, as the U.S. Supreme Court has explained, “every statute’s meaning is fixed at the time of enactment.”[43] This principle is known as the fixed-meaning rule.[44]

In academic commentary, the rule is elaborated as encapsulating the fixation thesis and the constraint principle, terms coined by Professor Lawrence Solum. The fixation thesis is that “[t]he meaning of the [legal] text is fixed when each provision is framed and ratified.”[45] The constraint principle is that this “original meaning of the [legal] text should constrain [judges].”[46] Scholars often discuss these principles in the context of constitutional interpretation, but as the Supreme Court’s articulation demonstrates, they apply materially identically in the statutory context.[47]

As Professor Solum explains, the fixation thesis is “intuitively obvious, even self-evident,” as a matter of language.[48] If a person is “reading a text written quite some time ago,” “a letter written in the thirteenth century, for example,” and wants to know “what the letter means,” the person will need to know “what the words and phrases used in the letter meant at the time the letter was written.”[49] The reader cannot rely on modern dictionaries because “[w]ords and phrases acquire new meanings over time” through a process called “linguistic drift.”[50] The term domestic violence, for example, now refers to spousal or child abuse, but when the U.S. Constitution used that term in the eighteenth century, it meant “violence that is internal to a state.”[51] If we want to know what the Constitution means by domestic violence, we must ask what the term meant in the eighteenth century, not what it means today.[52] A judge interpreting a 1789 statute’s prohibition on domestic violence as prohibiting familial abuse would amend the statute—the statute would now impose a different set of legal rights and obligations than the one enacted by the people’s representatives. And while the constraint principle is more controversial (it is what divides those who believe that text controls from those who do not), the Supreme Court has adopted it too. According to the Court, judges interpreting legal text should adopt the interpretation that reflects original meaning.[53] “When government-adopted texts are given a new meaning, the law is changed,” and “[a]llowing laws to be rewritten by judges is a radical departure from our democratic system.”[54]

The fixed-meaning rule is no recent innovation—it was established at the founding and before. In 1758 the most prominent treatise on the law of nations explained that “[l]anguages incessantly vary, and the signification and force of words change with time,” and when an “ancient [statute] is to be interpreted” it is the text’s meaning “at the time when it was written” that controls.[55] James Madison similarly asserted that “the meaning of a constitution should be fixed and known.”[56] He once remarked: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”[57] According to Madison, the “change which the meaning of words inadvertently undergoes” is a source of “misconstructions of the . . . text,” and it would be “preposterous” to let “the effect of time in changing the meaning of words and phrases” justify “new constructions.”[58] In the Federalist, Publius wrote that laws are “fixed” unless amended.[59] In 1833, a commentator observed that when “the meaning of words or terms” changes over time, “the meaning of the constitution is not therefore changed.”[60] As Joseph Story put it the same year, legal texts are to have “a fixed, uniform permanent construction”—“the same yesterday, today, and forever.”[61] Justice Elena Kagan’s famous comment that “we are all textualists now” reflects a return to our country’s centuries-old understanding of legal interpretation.[62]

V. Future Courts Should Avoid the Second Circuit’s Mistakes

The Supreme Court has “stressed over and over again in recent years” that statutory interpretation must “heed” what the statute “actually says.”[63] The Court has “repeatedly stated” that “the text of a law controls over purported legislative intentions unmoored from any statutory text.”[64] And the interpreter must look not to the text’s meaning to “ears today”[65] but to the text’s meaning “at the time of enactment.”[66]

The Second Circuit failed to heed these instructions. Though it was interpreting the term liability, it never cited any of the enactment-era dictionary definitions of that term. It did not mention that those dictionaries state expressly that liability includes equitable relief. It never mentioned the mid-twentieth-century cases saying that liability does not mean “money damages only.”[67] It never mentioned the enactment-era cases saying that the Workers’ Compensation statute “covers the entire field of remedy” and is “exclusive of all other remedies.”[68] It never mentioned that Section 11 is titled “Alternative remedy.” It never mentioned that the legislature switched from the narrow term “compensation” in Section 10 to the broader term “liability” in Section 11. Rather than grappling with these indicators of meaning, the Second Circuit simply ignored them.

Future courts should avoid these errors. When interpreting an old statutory term, courts should examine sources of meaning from the time of enactment such as enactment-era dictionaries and enactment-era cases. If there is a gap between modern language usage and enactment-era usage, courts should be especially careful to prevent their modern intuition from coloring the analysis. And most importantly, courts should examine enactment-era meaning closely rather than perfunctorily. That will help avoid judicial statutory amendment of the kind imposed by the Second Circuit in Palmer.

  1. . J.D. 2016, Yale Law School. ↑
  2. . N.Y. Workers’ Comp. Law § 10 (McKinney 2024) (requiring that an employer “secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment”); id. § 11. ↑
  3. . Id. § 11. ↑
  4. . Palmer v. Amazon.com, Inc., 51 F.4th 491, 498 (2d Cir. 2022). ↑
  5. . Id. ↑
  6. . Id. at 499. ↑
  7. . See Conway v. Circus Circus Casinos, Inc., 8 P.3d 837, 841 (Nev. 2000) (stating without additional discussion that “[w]e conclude that the exclusive remedy provision of the [Nevada Industrial Insurance Act] does not bar injunctive relief”); Nelson v. U.S. Postal Serv., 189 F. Supp. 2d 450, 460 (W.D. Va. 2002) (equally bare ipse dixit without even quoting the statute); Hicks v. Allegheny E. Conf. Ass’n of Seventh-Day Adventists, 712 A.2d 1021, 1022 (D.C. 1998) (making the Second Circuit’s error discussed infra). Other courts have interpreted workers-compensation exclusivity provisions with meaningfully different statutory language. E.g., Shimp v. N.J. Bell Tel. Co., 368 A.2d 408, 412 (N.J. Sup. Ct. Ch. Div. 1976) (New Jersey exclusivity provision barred only claims for “[c]ompensation”); Amalgamated Transit Union Loc. 1277 v. L.A. Cnty. Metro. Transp. Auth., 132 Cal. Rptr. 2d 207, 213–14 (Cal. Ct. App. 2003) (California statute provided that the fact of dual capacity did not permit the employee to bring “an action at law for damages against the employer”). ↑
  8. . 1 Modern Worker’s Compensation § 102:1 (West Group 2001) (asserting that claims for injunctive relief may not be barred under state workers-compensation statutes); Mark A. Rothstein, Occupational Safety And Health Law § 483 (4th ed. 1998) (asserting that “the ‘exclusive remedy’ provisions of state workers’ compensation laws . . . generally apply only to actions for damages and do not apply to actions for injunctive and declaratory relief”); Alfred W. Blumrosen et al., Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions, 64 Calif. L. Rev. 702, 712−13 (1976) (asserting that “employer liability acts and workmen’s compensation laws modified the common law only with respect to damages”). ↑
  9. . Palmer v. Amazon.com, Inc., 498 F. Supp. 3d 359, 375 (E.D.N.Y. 2020). ↑
  10. . Palmer v. Amazon.com, Inc., 51 F.4th 491, 514 (2d Cir. 2022). ↑
  11. . See Reves v. Ernst & Young, 494 U.S. 56, 77 (1990) (interpreting statutory term by reference to “[c]ontemporaneous editions of legal dictionaries”); PHH Corp. v. CFPB, 881 F.3d 75, 130 (D.C. Cir. 2018) (Griffith, J., concurring) (collecting cases for the observation that the Supreme Court “generally begins [an interpretive task] with dictionaries”); CFPB v. Cmty. Fin. Servs. Ass’n of Am., 601 U.S. 416, 438 (2024) (Court “consult[ed] dictionaries to ascertain the original public meaning”). ↑
  12. . Liability, Black’s Law Dictionary (2d ed. 1910) (emphasis added); see also Breslaw v. Rightmire, 119 Misc. 833, 835 (N.Y. Co. Ct. 1922) (quoting an essentially identical definition in Bouvier’s Law Dictionary); Liability, Black’s Law Dictionary (4th ed. 1951) (liability is a “broad legal term” that is “of the most comprehensive significance” and “includ[es] almost every character of hazard or responsibility”). ↑
  13. . Liable, Black’s Law Dictionary (2d ed. 1910). ↑
  14. . Krenger v. Penn. R.R. Co., 174 F.2d 556, 559 (2d Cir. 1949). ↑
  15. . Hartnett v. N.Y.C. Transit Auth., 657 N.E.2d 773, 776 (N.Y. 1995). ↑
  16. . Krenger, 174 F.2d at 559. ↑
  17. . See, e.g., Aaacon Auto Transp., Inc. v. State Farm Mut. Auto. Ins., 537 F.2d 648, 653 (2d Cir. 1976) (the defendant’s “exposure to the possibility of having to defend against [the plaintiff’s] claim on the merits . . . is a ‘liability’”); Accident Liability Reform Advocated, N.Y. Times, April 9, 1911 (New York Labor Commissioner remarking that “a principal merit of . . . compensation law[s]” is precisely that “questions of industrial safety . . . cease almost altogether to be subject to judicial determination”). ↑
  18. . In re Babb, 191 N.E. 15, 16 (N.Y. 1934) (emphasis added); see also Shanahan v. Monarch Eng’g Co., 114 N.E. 795, 797 (N.Y. 1916) (Section 11 “clearly provides” that Section 10 compensation “shall be exclusive of all other rights and remedies” (emphasis added)); Cifolo v. Gen. Elec. Co., 112 N.E.2d 197, 200 (N.Y. 1953) (“exclusive of any other remedy or right of action”); id. (“there is no remedy outside the act”). ↑
  19. . Rappa v. Pittston Stevedoring Corp., 48 F. Supp. 911, 912 (E.D.N.Y. 1943). ↑
  20. . See, e.g., Remedy, Black’s Law Dictionary (2d ed. 1910) (defining remedy as “the means by which the violation of a right is prevented, redressed, or compensated” (emphasis added)). ↑
  21. . Emps. Mut. Liab. Ins. Co. of Wis. v. Refined Syrups Sales Corp., 53 N.Y.S.2d 835, 838 (N.Y. Sup. Ct. 1945) (emphasis added); see also, e.g., Burlew v. Am. Mut. Ins., 472 N.E.2d 682, 684 (N.Y. 1984) (“no suit against an employer may be maintained” for workplace injury); Liberty Mut. Ins. v. Hurlbut, No. 08 Civ. 7192, 2009 WL 604430, at *1 (S.D.N.Y. Mar. 9, 2009), aff’d, 585 F.3d 639 (2d Cir. 2009) (“the worker is not permitted to sue the employer”). ↑
  22. . WMATA v. Johnson, 467 U.S. 925, 931 (1984). ↑
  23. . Shanahan, 114 N.E. at 798. ↑
  24. . Noreen v. William Vogel & Bros., 132 N.E. 102, 103 (N.Y. 1921); see also Accident Liability Reform Advocated, N.Y. Times, April 9, 1911 (former Labor Commissioner of State of New York contending in 1911 that a “principal merit of the compensation law” proposed in another state was that “questions of industrial safety would cease [almost] altogether to be subject to judicial determination”). ↑
  25. . N.Y. Workers’ Comp. Law § 11. ↑
  26. . Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 221 (2012) (a title is a “permissible indicator of meaning”). ↑
  27. . DHS v. MacLean, 574 U.S. 383, 391 (2015) (a legislature “generally acts intentionally when it uses particular language in one section of a statute but omits it in another”); Scalia & Garner, supra note 25, at 170 (when a legal instrument “has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea”). ↑
  28. . Palmer v. Amazon.com, Inc., 51 F.4th 491, 515 (2d Cir. 2022) (quoting N.Y. Workers’ Comp. Law § 11). ↑
  29. . Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 586 (2008). ↑
  30. . Scalia & Garner, supra note 25, at 199. ↑
  31. . See 1914 N.Y. Laws 216. ↑
  32. . See id. at 515–16. ↑
  33. . In re Babb, 191 N.E. 15, 16 (N.Y. 1934) (emphasis added); see also Shanahan v. Monarch Eng’g Co., 114 N.E. 795, 797 (N.Y. 1916); Cifolo v. Gen. Elec. Co., 112 N.E.2d 197, 199 (N.Y. 1953). ↑
  34. . Palmer, 51 F.4th at 515 (quoting Shanahan, 114 N.E. at 799). ↑
  35. . Id. at 516 (quoting Reich v. Manhattan Boiler & Equip. Corp, 698 N.E.2d 939 (N.Y. 1998)); see also Palmer, 51 F.4th at 515. ↑
  36. . Id. at 516. ↑
  37. . Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). ↑
  38. . Palmer, 51 F.4th at 516. ↑
  39. . In re Babb, 191 N.E. 15, 16 (N.Y. 1934). ↑
  40. . Liable, Black’s Law Dictionary (2d ed. 1910). ↑
  41. . Krenger v. Pa. R.R. Co., 174 F.2d 556, 558 (2d Cir. 1949). ↑
  42. . New Prime Inc. v. Oliveira, 586 U.S. 105, 114 (2019). ↑
  43. . Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018) (emphasis omitted). ↑
  44. . See, e.g., Scalia & Garner, supra note 25, at 78 (describing the fixed-meaning rule as the principle that “[w]ords must be given the meaning they had when the text was adopted”). ↑
  45. . Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 1 (2015). ↑
  46. . Id. ↑
  47. . See, e.g., Antonin Scalia, A Matter of Interpretation 38 (1997) (“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text.”); Diarmuid F. O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s L. Rev. 303, 309 (2017) (“[O]riginalism . . . is merely textualism applied to constitutional interpretation.”). This is apparent when considering that an originalist/textualist would interpret the Judiciary Act of 1789 and provisions of the original Constitution with the same principles. Different types of laws may have different audiences, and the audience will account for the identity of the speaker and the context of the speech. But in all cases, under both original-meaning originalism and textualism the question is what the text communicated to the audience when adopted. For more detailed discussion of these points see Lawrence B. Solum, Pragmatics and Textualism (July 10, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4881344 (last visited Oct. 30, 2024). ↑
  48. . Solum, supra note 45, at 2. ↑
  49. . Id. at 1; see also id. (“Ignoring the time and place at which the letter was written would seem like a strategy for deliberate misunderstanding.”). ↑
  50. . Id. at 17. ↑
  51. . Id. at 71. ↑
  52. . Id. at 16–17 (observing that it would “simply be a linguistic mistake to interpret the domestic violence clause of Article IV of the Constitution of 1789 as referring to spouse or child abuse”). ↑
  53. . See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 36 (2022) (“original meaning of the constitutional text” controls); New Prime Inc. v. Oliveira, 586 U.S. 105, 113 (2019) (same in statutory context). ↑
  54. . Scalia & Garner, supra note 25, at 57. ↑
  55. . Emer De Vattel, The Law of Nations 413 (Béla Kapossy & Richard Whatmore eds., Thomas Nugent trans., Liberty Fund 2008) (1758). ↑
  56. . James Madison, The Mind of the Founder: Sources of the Political Thought of James Madison 391 (Marvin Meyers ed., 1981). ↑
  57. . 9 James Madison, The Writings of James Madison 120 (Gaillard Hunt ed. 1910). ↑
  58. . 4 Letters and Other Writings of James Madison 249 (Philadelphia, J.B. Lippincott & Co. ed., 1865); see also Letter from James Madison to Sherman Converse (Mar. 10, 1826), reprinted in Founders Online, Nat’l Archives (2023), https://founders.archives.gov/documents/Madison/04-04-02-0003 (reference to “original and authentic meaning” of legal text protects against “errors . . . produced by . . . innovations in the use of words and phrases”). ↑
  59. . The Federalist No. 62, at 318 (James Madison) (George W. Carey & James McClellan eds., 2001); see also Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 530–39 (2003) (discussing the founding-era understanding of “fixing” meaning). ↑
  60. . Nathaniel Chipman, Principles of Government: A Treatise on Free Institutions Including the Constitution of the United States 254 (1833). ↑
  61. . 1 Joseph Story, Commentaries on the Constitution of the United States § 426, at 315 (Little, Brown & Co., 4th ed. 1873); see also, e.g., Daniel Webster, The Works of Daniel Webster 164 (1851) (“We must take the meaning of the Constitution as it has been solemnly fixed.”); Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 55 (Da Capo Press 1972) (1868) (“The meaning of the constitution is fixed when it is adopted.”); South Carolina v. United States, 199 U.S. 437, 448 (1905) (“That which [the Constitution] meant when adopted it means now.”). ↑
  62. . See Bryan A. Garner, It Means What It Says, 105 A.B.A. J. 28, 29 (2019) (“[Y]ou won’t really find nontextualist ideas expressed until the late 19th century, and not at all frequently until the mid-20th.”). ↑
  63. . Groff v. DeJoy, 600 U.S. 447, 468 (2023). ↑
  64. . Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022). ↑
  65. . New Prime Inc. v. Oliveira, 586 U.S. 105, 114 (2019). ↑
  66. . Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018) (emphasis omitted). ↑
  67. . Hartnett v. N.Y.C. Transit Auth., 657 N.E.2d 773, 776 (N.Y. 1995) (citing 1943 and 1960 cases). ↑
  68. . In re Babb, 191 N.E. 15, 16 (N.Y. 1934) (emphasis added); Rappa v. Pittston Stevedoring Corp., 48 F. Supp. 911, 912 (E.D.N.Y. 1943). ↑

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31Oct

CAUSAL PROOF IN THE PANDEMIC

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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. 

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18Nov

Fourth Circuit Affirms Coal Company’s Liability in Employment Benefits Case

Categories: 4th Cir. Blog Civil Cases
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By: Kristina Wilson

On Friday, November 18, 2016, the Fourth Circuit issued a published opinion in the civil case RB&F Coal, Inc. v. Mullins. The Fourth Circuit affirmed the U.S. Department of Labor’s Benefits Review Board’s finding that a coal miner, Turl Mullins, and his wife, Deloris Mullins, were entitled to employment and survivors’ benefits under 30 USC § 901 et seq (Black Lung Benefits Act). While the parties agreed that the Mullinses should be compensated, on appeal, the parties disputed whether RB&F Coal, Inc. should be responsible for paying the benefits.

The Statutory Scheme

The Fourth Circuit’s analysis was governed by the Black Lung Benefits Act (“BLBA”) and Virginia’s Guaranty Act. Under the BLBA, a mine operator that employs a miner who becomes disabled by pneumoconiosis is responsible for compensating the miner. 30 USC §§ 901(a), 922(a), 932(b), 932(c). Where multiple coal companies employ a miner, the most recent company to employ the miner is liable for the payments, as long as the company qualifies as a “potentially liable operator.” 20 C.F.R. § 725.495(a)(1). To be a “potentially liable operator,” the coal company and/or its insurer must be financially capable of assuming liability. Id. § 725.494(e).

Virginia’s legislature established the Virginia Property and Casualty Insurance Guaranty Association (VPCIGA), a state chartered non-profit association that provides payment of “covered claims” resulting from insolvent insurers. Va. Code Ann. § 38.2-1603. Virginia state laws require all insurance companies conducting business in Virginia to join the VPCIGA. Id. §§ 38.2-1604. The VPCIGA is only responsible for the claims of an insolvent insurer that are “covered claims,” as defined in the Guaranty Act. Id. § 38.2-1606(A)(1). “Covered claims” include “. . . any claim filed with the VPCIGA after the final date set by the court for the filing of claims against the liquidator or receiver of an insolvent insurer.” Id. § 38.2-1606(A)(1)(b).

Facts and Procedural History

Between 1985 and 1988, Turl Mullins worked for several different coal companies, including RB&F Coal, Inc. (“RB&F”) and Wilder Coal (“Wilder”). Mullins developed pneumoconiosis in 2009 and filed a Black Lung Benefits Act (“BLBA”) claim in that same year. At the time of filing, Mullins’s most recent employer, Wilder, was out of business and its insurer declared insolvent. Therefore, the Department of Labor district director imposed liability on RB&F for payments to the Mullinses. RB&F challenged the finding and transferred the case to an Administrative Law Judge.

The Administrative Law Judge affirmed the Department of Labor’s finding because RB&F failed to prove that Wilder Coal was capable of financially assuming the liability. RB&F appealed the Administrative Law Judge’s finding with the Department of Labor’s Benefits Review Board, but the Benefits Review Board affirmed. This appeal followed.

Wilder Is Not a “Responsible Operator” under the BLBA

On appeal, RB&F first argued that Wilder qualified as a “responsible operator” because Wilder’s claims are still “otherwise guaranteed,” under Virginia’s Guaranty Act. However, Virginia’s Guaranty Act excluded claims filed after the final date set by a court for claims against an insolvent insurer. Va. Code Ann. § 38.2-1606(A)(1)(b). The final date set by a court for claims against Wilder’s insurer was August 26, 1992. Mullins did not file his claim until 2009. Therefore, Mullins’ claim was not “otherwise guaranteed.”

The BLBA Does Not Preempt the Guaranty Act

RB&F next argued that the BLBA preempted the Guaranty Act’s limitation of liability for black lung claims. In so arguing, RB&F assumed that the VPCIGA was an insurer under the BLBA. The Department of Labor regulations implementing the BLBA provide that an insurer is any fund, including a State fund, that is authorized under a state’s workers’ compensation laws to insure employers’ liability. 20 C.F.R. § 725.101(a)(18). However, Virginia’s workers’ compensation laws prevented the VPCIGA from covering Wilder’s insurer’s claims past a certain date. In fact, the Guaranty Act precluded the VPCIGA from providing full coverage of all the claims of an insolvent insurer. Thus, the VPCIGA is not an insurer under the BLBA, and as such, the BLBA does not preempt the Guaranty Act.

Disposition

Therefore, because RB&F established neither that Wilder was a “responsible operator” nor that the BLBA preempted the Guaranty Act, the Fourth Circuit affirmed the Benefits Review Board’s imposition of liability on RB&F.

 

 

 

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15Jan

Personal Injury Suit Dismissal Affirmed

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By Evelyn Norton

Today, in Demetres v. East Construction, Inc., the Fourth Circuit affirmed a decision by the U.S. District Court for the Eastern District of Virginia dismissing a personal injury suit for lack of subject matter jurisdiction.

The Incident

Ashland Construction Co., a North Carolina corporation, hired East West, a Virginia corporation, as subcontractor to prepare a construction site in Virginia Beach.  James Demetres (“Mr. Demetres”), an employee of Ashland Construction Co., was designated as superintendent of the site.  On March 28, 2011, Mr. Demetres sustain significant injuries at the jobsite when a bulldozer operated by an East West employee backed over him.  Following the incident, Mr. Demetres received workers’ compensation benefits through his employment with Ashland Construction Co.

The District Court Dismissed the Personal Injury Suit

On March 27, 2013, Mr. Demetres filed a complaint against East West in the Eastern District of Virginia.  Mr. Demetres alleged negligence and sought $100,000,000 in damages.  East West filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the exclusivity provision of the Virginia Workers’ Compensation Act (“VWCA”) barred Mr. Demetres personal injury suit.  The Eastern District of Virginia granted the motion.  Mr. Demetres timely filed an appeal.

The Fourth Circuit Found that the District Court Properly Applied Virginia Law Barring Suit.

The Fourth Circuit reviewed the dismissal for lack of subject matter jurisdiction de novo.

On appeal, Mr. Demetres argued that the district court should have applied North Carolina law in determining whether his suit was barred.  Mr. Demetres reasoned that Supreme Court of Virginia precedent allows the law of the state that paid benefits to apply, even if the injury occurred in Virginia.

However, the Fourth Circuit observed that, as a diversity action, the district court was required to apply the law of the jurisdiction in which it sits–Virginia law.  In Virginia, the applicable substantive law is the law of the jurisdiction in which the injury occurred.  Thus, because Mr. Demetres’ injuries occurred in Virginia Beach, Virginia substantive law must govern.

Furthermore, the Supreme Court of Virginia has interpreted the VWCA to bar suits where injured employees of a general contractor try to sue a subcontractor engaging in the general contractor’s business.  Applying this precedent, the Fourth Circuit found that East West was engaged in the same business as Ashland Construction Co.  Therefore Mr. Demetres, as employee of the general contractor Ashland Construction Co., could not sue the subcontractor East West under the VWCA.   Thus, the VWCA barred the suit.

Holding

The Fourth Circuit held that Virginia is not required to relax its more restrictive workers’ compensation bar to hear Mr. Demetres claim.  Thus, the Fourth Circuit affirmed the district court’s decision to dismiss.

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24Oct

Wrongful Termination Lawsuit by Injured Employee Fails

Categories: 4th Cir. Blog Uncategorized
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By: Michael Klotz

In Sledge v. Graphic Packaging International Inc., the Fourth Court affirmed the lower court decision awarding summary judgment to the Defendant, a custom packing products manufacturer, on both claims in a wrongful termination lawsuit. Ms. Sledge, a former employee, alleged that the Defendant violated the North Carolina Retaliatory Discrimination Act (“NCRDA”) and the North Carolina Persons with Disabilities Protection Act (“NCPDPA”).

Facts

On March 31, 2012, Ms. Sledge was working as a Sheeter Operator for the Defendant. On this evening, Ms. Sledge was assisting with a project that required running paper thicker than normal through the sheeter. In order to reduce the curl of the paper, which was fed from rolls, Ms. Sledge fed the paper using a different method than she had used before. Attempting to test the tension of the paper being run through the machine, Ms. Sledge touched the paper and her hand was pulled into the sheeter. Ms. Sledge’s hand was badly bruised and swelling, and she received treatment at a hospital. She indicated to her employer that she intended to file a worker’s compensation claim to recover compensation for her injury.

Ms. Sledge was subsequently terminated for violating company policy. A policy document issued by Defendant states that an employee may be immediately terminated for violating a “Safety Absolute” of the company, which is a serious and unsafe act. In this case, putting one’s hand into the sheeter was determined to be a serious and unsafe act. Ms. Sledge subsequently filed this lawsuit.

Reasoning of the District Court

The district court granted summary judgment to the Defendant on both claims. Summary judgment was granted on the NCRDA claim, because the Defendant presented sufficient evidence that she would have been terminated even if she had not filed a worker’s compensation claim. The company cited the fact that all previous employees who had violated a “Safety Absolute” had been terminated, and employees who had been injured without violating company policy had received worker’s compensation and not been terminated. On Ms. Sledge’s second claim, the court concluded that she was not protected under the NCPDPA. The statute protects those persons with a “physical or mental impairment which substantially limits one or more major life activities.” Ms. Sledge alleged in her complaint that she was protected under the statute because the Defendant regarded her as having a mental impairment. However, she presented no evidence to support this assertion, and the only medical evidence she offered were hospital X-rays. As a result, the court granted summary judgment to the Defendant.

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