Thursday, May 28, 2020

COVID-19, Public Nuisance, Wrongful Death, and Workers’ Compensation Exclusivity

A news reporter asked me today whether a public nuisance suit is barred by workers’ compensation exclusivity. It strikes me as a difficult question.

Obviously, one cannot sue one’s employer in negligence for physical injury or death because of the workers’ compensation exclusive remedy rule. Similarly, the next of kin of a decedent are barred by workers’ compensation exclusivity from suing the decedent’s employer in wrongful death. These principles are too well established to warrant extended discussion. You may change the law if you like and if you can, but you cannot really argue with what it says.

The tactic in recent public nuisance suits is, at least in part, to try to overcome workers’ compensation exclusivity by 1) suing in nuisance rather than negligence; and 2) seeking injunctive rather than compensatory relief. (Thus far, I have not located lines of prior cases on conflicts between nuisance law and workers’ compensation). Many of us are aware of cases involving various non-workers’ compensation laws in which workers’ compensation exclusivity was found to “trump” causes of action under those laws. (See 9 Larson's Workers' Compensation Law § 100.03). The typical situation involves plaintiffs seeking alternative kinds of damages for physical harm. I have a pretty firm conviction that any suit for damages related to physical harm filed by an employee against his/her employer will be found (somehow) subject to workers’ compensation exclusivity.

The injunction question seems much trickier. It appears to me doubtful that a plaintiff could successfully maintain a negligence or wrongful death action seeking an injunction but not damages. The prima facie elements of a negligence claim are, after all, duty, breach, causation, and harm/damages. The defense’s argument in a COVID-19 negligence action involving physical injury that does not seek recovery for harm/damages might simply be that, where there is no harm/damages, there is no prima facie negligence claim. And where there is no prima facie negligence claim, there is no possibility of obtaining an injunction, which, after all, depends for its issuance on the likelihood of success on the merits of an underlying negligence (or some other) claim. Injunctions in the air will not do.

What about a public nuisance suit? The plaintiff’s prima facie nuisance case might seem almost by definition not to involve monetary damages. Plaintiffs often primarily seek "abatement"—to stop the defendant from doing something that may harm the plaintiff (and others similarly situated). The plaintiff’s syllogism here might be: a) workers’ compensation is the exclusive remedy for tort/negligence damages only; b) public nuisance involves no tort damages, ergo c) workers’ compensation exclusivity does not apply, and the public nuisance suit is viable.

But wait a minute. Consider the Restatement Second of Torts explanation of public nuisance.

Under Section 821B:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

I think that if an employee attempted to obtain damages from her employer on a public nuisance theory (which, contrary to our earlier syllogism, the Restatement informs us is possible), the action would be barred under workers’ compensation exclusivity.

What about a public nuisance injunction

Under Section 821C:

(1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

(2) In order to maintain a proceeding to enjoin [or] to abate a public nuisance, one must

(a) have the right to recover damages, as indicated in Subsection (1), or

(b) have authority as a public official or public agency to represent the state or a political subdivision in  the matter, or

(c) have standing to sue as a representative of the general public, as a citizen in a citizen's action or as a member of a class in a class action.

Under Comment b of the section: “The private individual can recover in tort for a public nuisance only if he has suffered harm of a different kind from that suffered by other persons exercising the same public right. It is not enough that he has suffered the same kind of harm or interference but to a greater extent or degree.”

Under Comment j: “A person who has suffered damages that are different from those suffered by other members of the public and who is thus able to bring an action in tort for his damage is able to seek an injunction against the public nuisance. It has been the traditional rule that if a member of the public has not suffered damages different in kind and cannot maintain a tort action for damages, he also has no standing to maintain an action for an injunction.”

I think this leads me to the (provisional) realization that an employee could probably not obtain an injunction unless the employee could also sue for “harm of a kind different from that suffered by other members of the public . . .” But that different harm would probably be contraction of COVID-19 (or risk thereof), which seems, however the harm is quantified, to lead back to damages and therefore back to exclusivity. Thus, by this circuitous route my suspicion is that a court might conclude an action by an employee for public nuisance injunctive relief is barred by exclusivity: it is ultimately derivative of a right to obtain tort damages, and therefore encompassed by exclusivity. On the other hand, any non-employee seeking relief would obviously not be barred by exclusivity, but would have to deal with the formidable standing requirements built into 821C(1) as fleshed out in Comments b and j: how is the plaintiff’s harm different from that suffered by other members of the public? See Alaska Native Class v. Exxon Corp. (In re Exxon Valdez), 104 F.3d 1196 (9th Cir. Alaska 1997).

Michael C. Duff  

May 28, 2020 | Permalink | Comments (0)

Wednesday, May 27, 2020

Illinois’ New Workers’ Compensation Covid-19 Presumption: I Hate to Burst Your Bubble

The new Illinois workers' compensation Covid-19 presumption is actually three presumptions. The full text of the statutory language is here.

The first two presumptions apply in the case of death and are applicable specifically to “policemen” and “firemen.” Here is my stripped own rendering:

The death of any [police officer/firefighter] as a result of the exposure to and contraction of COVID-19 [as reliably diagnosed] shall be rebuttably presumed to have been contracted [from work] and the [police officer/firefighter] shall be rebuttably presumed to have been fatally injured while in active service. The presumption applies to exposures sustained between March 9, 2020 and December 31, 2020; but does not apply if the [police officer/firefighter] was not required to work for 14 or more consecutive days prior to contracting COVID-19. The legally operative date of contraction is either the date of diagnosis or the first date of disability from the disease, whichever came first.

The third presumption is an injury/occupational disease presumption applicable to “COVID-19 first responders or front line workers” [defined as all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers; and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10].

The list of essential businesses is expansive, so the presumption should apply to many employees. Also, the lawyer in me recognizes that the larger the list of essential businesses the higher the number of gray areas allowing a business to argue that it is essential, or for an employee to argue that she is employed by an essential business. In any event, the individuals are covered by the presumption if they are “required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees.” An employee’s home or place of residence is not a place of employment, except for home care workers.

How does the injury/occupation disease presumption work? Here is my distillation:

If the employee [is disabled by COVID-19] the [disability] is rebuttably presumed to have arisen out of and in the course of employment and the injury or occupational disease is rebuttably presumed to be causally connected to the hazards or exposures of the employee's “first responder or front-line worker employment.”

The presumption may be rebutted by evidence, including, but not limited to, the following:


(A) the employee was working from his or her home, or on leave from his or her employment . . . for a period of 14 or more consecutive days immediately prior to the employee’s [COVID-19-related disability]; or


(B) the employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance issued by the Centers for Disease Control and Prevention or Illinois Department of Public Health or was using a combination of administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 consecutive days prior to the employee's [COVID-19 related disability].


(C) the employee was exposed to COVID-19 by an alternate source.


The rebuttable presumption applies to cases tried after the effective date of the legislation and in which the disease diagnosis was made between March 9, 2020 and December 31, 2020. The disease must be reliably diagnosed and the presumption created in this subsection does not apply if the employee’s place of employment was solely the employee's home or residence for 14 or more consecutive days immediately prior to the employee’s onset of COVID-19 disability.

The most important thing to realize about the rebuttal criteria above in A/B/C (in their own right a hot mess of ambiguity)—and doubtless a reason why Illinois presumption advocates could “live with” them—is that they are no more than permissible inferences. Once any causation presumption is set up it is to be anticipated that employers/carriers would offer precisely this kind of evidence to rebut it. Here the presumption may be rebutted by A, B, and C. Of course, it may not be—according to the weight afforded the evidence by a fact finder. In other words, operatively these exemplars of rebuttal appear to do very little because they are merely permissive. They do not (as they might have) operate to burst the bubble of the presumption. Under that “Thayer-Wigmore” model, once any of the A/B/C criteria were established the presumption of causation might have “burst,” returning the claimant to the position of having to affirmatively prove causation. (See here at page 7). That is not at all my reading of these "rebuttals." If the proponents of the presumption offered these “A/B/C rebuttal criteria” as a quid pro quo for the extremely broad swath of employees the presumption covers, I have little doubt who prevailed in that negotiation. In the end, this injury/occupational disease presumption is a rebuttable presumption of causation that is not significantly distinguishable from generic rebuttable presumptions of causation. An employer/carrier is permitted to do what it could always have done under a rebuttable presumption.

Michael C. Duff

May 27, 2020 | Permalink | Comments (0)

Friday, May 22, 2020

Free to Be Negligent?

Originally published on Legal Planet, By Daniel Farber. Reprinted with permission.

Proposed Tort Liability Protection for Businesses

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative/business interests have made similar proposals.

So far, the supporters of these proposals have engaged in some dramatic handwaving but haven’t begun to make a reasoned argument in support of a litigation shield.

In this post, I’m going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.

Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant’s business operation, that better precautions would have prevented the exposure, and that they weren’t exposed elsewhere.

Tort lawyers may be reluctant to take on such claims except in the unusual cases where there was no other significant exposure to the virus. In addition, the plaintiff will have to show that the business failed to take reasonable precautions, which won’t be easy in many cases. Even if they prove all that, the damage award will be lowered if the plaintiffs failed to take reasonable precautions to protect themselves. A lawsuit will have to jump all these hurdles. The question is whether businesses need additional protection beyond that already provided by the ordinary rules of negligence law.

Proposed Limits on Litigation

I’ve collected some of the specific proposals. They differ in details but there are some common threads.

Chamber of Commerce
The Chamber of Commerce is the #1 representative of business interests in Washington, D.C. Here’s a description of the Chamber’s views on April 13, 2020. They were calling for the following:

  1. “[I]n the negligence space, providing a safe harbor for companies following CDC or state/local health department guidance could be helpful so long as the companies’ actions do not amount to gross negligence, recklessness, or willful misconduct.”
  2. “Procedural reforms such as channeling certain claims into federal court rather than allowing them to remain in various state courts could be helpful.”

National Federal of Independent Businesses (NFIB)
NFIB’s core proposal is that “Businesses should be protected from liability to customers and other third-parties unless those customers or parties prove the business knowingly failed to develop and implement a reasonable plan for reducing the risk of exposure to COVID-19 and that failure caused the injury.” The paragraph setting forth this proposal makes it clear that this liability protection would apply even if a business was not fully in compliance with federal or state health rules.
NFIB also proposes some subsidiary reforms:

  1. Worker’s compensation would be the exclusive remedy for employees (apparently regardless of whether they’re injured by the employer or by third-parties.)
  2. Liability would only cover people whose illnesses required hospitalizations.
  3. Lawyers who bring frivolous actions should be liable for the attorneys’ fees and other costs of the lawsuit to the business.

Heritage Foundation
The Heritage Foundation has a multi-part proposal:

  1. [D]ismissal of claims based on negligent implementation of pandemic mitigation or response measures.
  2. Businesses could obtain this protection in two ways: (a) by having their safety plans approved by a federal agency, or (b) by demonstrating to a judge as soon as they are sued that they are complying with “regulations, best practices, or guidance issued by federal or state health officials.”
  3. A plaintiff could overcome the shield by showing that the agency committed fraud in obtaining federal approval or willful misconduct in implementing its safety plan.
  4. Lawsuits against businesses could only be brought in federal courts.

Evaluating the Proposals

Underlying assumptions

Before turning to the specifics of the proposals, I should note that there are two key assumptions underlying them. None of the proposals attempts to defend those assumptions.

The first assumption is that frivolous tort claims are going to be a serious problem. I haven’t seen any evidence to support this, either based on past experience or on lawsuits brought to date. Despite all the talk about unscrupulous plaintiffs’ lawyers, we don’t know how much of a problem they are.

The second assumption is that federal intervention is required. Tort law is a matter of state concern. If personal injury lawsuits are going to be an unfair burden on businesses and prevent the economy from reviving, why can’t we trust state legislatures to respond? A related assumption seems to be that state courts can’t be trusted to handle these cases. Again, there’s no evidence to support this assumption.  Whatever happened to states’ rights?

Other gaps.

Beyond the failure to defend these assumptions, there are other serious gaps in the argument for these proposals:

Overlooked benefits of liability. 

The proposals conspicuously ignore any possible justifications for imposing liability. In general, negligence liability has two justifications. First, it provides an incentive to exercise reasonable care. It’s not implausible to assume that businesses will be more likely to take reasonable care if they face the threat of liability for carelessness. Second, negligence liability is based on the moral sense that someone who is at fault should compensate the victims of their carelessness. The reform proposals would undermine both goals to the extent that they protect businesses that actually failed to exercise reasonable care.

Failure to consider alternatives. If in fact unfounded lawsuits are an undue burden on businesses, there are alternative solutions. One would be some kind of federal support for business liability insurance, such as a tax credit for liability premiums. Another alternative would be to cap damages. A different option would be to add special procedural requirements for these lawsuits in order to allow frivolous claims to be weeded out quickly and inexpensively.

Workability issues. Shunting these lawsuits to federal court seems unworkable, given the limited number of federal judges and their already overloaded dockets. The proposal to have the federal government certify safety plans assumes that federal agencies have spare resources to devote to this task. Moreover, because many federal and state safety requirements are vague, it may be difficult for businesses to establish that they were in compliance. (Moreover, at this writing, the White House seems unwilling to allow CDC to issue reopening guidelines.) The requirement that plaintiffs show gross negligence may or may not be a deterrent to “unscrupulous trial lawyers.”

In short, at this point the supporters of these proposals have failed to show that negligence law is in need of a federal cure, that the cure will not be worse than the feared “epidemic” of unfounded litigation, or that the cure will work.

May 22, 2020 | Permalink | Comments (0)

Wednesday, May 20, 2020

Another Public Nuisance Covid Suit: Why is the McDonald’s Case Different?

A recent interesting lawsuit filed against McDonald’s, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings, see here, and here. The named employee-plaintiffs allege “negligence” in what might look at first blush like a drop-dead workers’ compensation case. This time, however, there is a wrinkle: the negligence action is pursued against both franchisor-McDonalds (McDonald’s USA) and certain of McDonald’s franchise restaurants (McDonald’s Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers’ compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant). This is perfectly sensible.

It will be politically difficult for McDonald USA to argue that it is a joint employer with its franchisees (and therefore protected by exclusivity) because it has been making the opposite argument at the National Labor Relations Board for years. It may be that under Illinois law McDonald’s will be able to walk this tightrope. After all, non-employers may be employers under different statutes in the same way that workers (bewilderingly) may be an employee or not depending on the definition embedded in a particular statute. But leaving the merits of the tort allegations to one side, I doubt McDonald USA’s workers’ compensation exclusive remedy argument would be easy.

What I really want to emphasize here are the distinctions between this McDonald’s public nuisance case and the now-dismissed Smithfield Foods case. Here the case has been filed in state court—very deliberately, I suspect—and not in federal court. Here a state court judge may have a good deal more sympathy with, and for, local nuisance laws (in-state defendants may also assist in fending off prompt removal to federal court).  While the doctrine of primary jurisdiction (possessed by a federal agency) can apply to wrest a state court of its otherwise proper jurisdiction—it has happened in federal and environmental and labor law contexts, for example—there may be unclear questions of important state law that could give a federal court—under various abstention doctrines—pause before depriving the state court of jurisdiction.

On the merits, the most important allegation for me (space prevents going through the complaint at length) is: “McDonald’s decision to remain open while simultaneously failing to comply with minimum basic health and safety standards at its restaurants, including guidance from the CDC and other public health standards necessary to stop the spread of COVID-19, is causing, or is reasonably certain to cause, further spread of the disease to Plaintiffs, their family members, McDonald’s other employees, and the general public.” Hence, the “publicness” of a public nuisance.

Tellingly, the complaint seeks only injunctive relief. The motivation for that limitation is probably to diminish standing problems since the state law remedy in nuisance is abatement, in its essence a very injunctive-like, traditional state law remedy applicable to the community. (Some have asked me whether in the cases I previously criticized the objective might have been to obtain an injunction; but ordinarily one must be able to show the likelihood of success on the merits of some underlying cognizable claim to obtain an injunction). This case really frames the state “police power” tension interestingly. We will see what happens.

Michael C. Duff

May 20, 2020 | Permalink | Comments (0)

Senate Passes Covid Disability/Death Presumption for First Responders

As you may already have heard, the Senate has passed a Covid-19 presumption, S. 3607. My abridged rendering is as follows. The presumption bill—which is keyed to a federal first responder catastrophic injury/death benefit statute, 34 U.S.C. § 10281 et seq.—provides federal death or disability benefits (as the case may be), in a lump sum, to “public safety officers” as defined under federal law (generally what we would refer to as “first responders”). The causation presumption is new (I find no causation presumption in the referenced laws).

For Death Benefits

Unless competent medical evidence establishes that the death of a public safety officer . . . was directly and proximately caused by something other than COVID–19, COVID–19 (or complications therefrom) suffered by the public safety officer shall be presumed to constitute a personal injury within the meaning of [Federal law] . . . , sustained in the line of duty by the officer and directly and proximately resulting in death, if—the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; the officer was diagnosed with COVID–19 (or evidence indicates that the officer had COVID–19) during the 45-day period beginning on the last day of duty of the officer; and evidence indicates that the officer had COVID–19 (or complications therefrom) at the time of the officer's death.

Thus, the presumption

  • Applies only to public safety officers suffering from death
  • Is a presumption of death sustained in the line of duty (that is to say, gives full causation)
  • Is rebuttable by evidence of direct and proximate causation from another source
  • Applies only if the officer engaged in “duty action” between 1/1/20 and 12/31/21
  • Applies only if the officer “had” Covid 19 during 45 days after officer terminated work
  • Applies only if officer also had Covid 19 at time of death

For Disability Benefits

“COVID–19 (or complications therefrom) suffered by a public safety officer shall be presumed to constitute a personal injury within the meaning of section 1201(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10281(b)), sustained in the line of duty by the officer, if—the officer engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021; the officer was diagnosed with COVID–19 (or evidence indicates that the officer had COVID–19) during the 45-day period beginning on the last day of duty of the officer.

Thus, the presumption

  • Applies only to public safety officers suffering from disability [as defined by federal law]
  • Is of an injury sustained in the line of duty (that is to say, gives full causation)
  • Applies if the officer engaged in “duty action” between 1/1/20 and 12/31/21
  • Applies if the officer had Covid during 45 days after officer terminated work 

One curiosity surfaces on a first reading of the disability presumption: it is not explicitly rebuttable. I am not clear about why the death benefit would be subject to a rebuttable presumption while a disability benefit is subject (as I read the language, at least) to an irrebuttable presumption.  Perhaps it is simply a question of anticipated claim value. 

Benefits are paid in lump sum and, according to WorkCompCentral (behind paywall here), “the program provides a lump-sum payment of $359,316 and education assistance of $1,224 per month for spouses and children.” (The lump sum figure is inflated from $250,000 in earlier versions of the death/catastrophic injury benefit statute).

A few comments. First, a legislature knows how to draft a causation presumption when it wishes to do so (contrast my comments on the recent Wyoming presumption). Second, the development will no doubt intensify the national debate on the scope of the essential workers category. It will be interesting to see if the House has thoughts in this area. Third, a “someday” federalization of workers’ compensation could come in mysterious ways. Federal action in this area suggests a concern that state systems may not be adequate to shoulder the Covid burden, at least when it comes to first responders. Finally, federal benefits would not be covered by anyone’s version of a liability shield.

Michael C. Duff

May 20, 2020 | Permalink | Comments (0)

Monday, May 18, 2020

One of These Things is Not Like the Other: Not All Workers’ Compensation Covid-19 Presumptions Are Equal

I am going to resist the temptation to don my evidence professor hat and go through a tortuous discussion of the distinction between inferences and presumptions, bursting bubble presumptions, and the entire panoply of interesting presumption “stuff.” It is enough for my purposes to simply set out some Covid-19 presumptions to drive the discussion. I am not focused here on the classification of employees entitled to the presumption or on the manner in which the presumption may be rebutted. My sole inquiry is on the presumption itself; in other words, presumption of what?

Wyoming passed a Covid-19 presumption over the weekend. In relevant part, here is what it says:

“Injury” does not include [Wyoming has a very broad definition of "injury" and no “accident” requirement]:


Any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment.  For the period beginning January 1, 2020 through December 30, 2020, if any employee in an employment sector for which coverage is provided by this act is infected with the COVID‑19 Coronavirus, it shall be presumed that the risk of contracting the illness or disease was increased by the nature of the employment;

New Jersey passed a Covid-19 presumption last week. In relevant part, here is what it says:

If, during the public health emergency . . . an individual contracts coronavirus disease during a time period in which the individual is working in a place of employment other than the individual’s own residence as a health care worker, public safety worker, or other essential employee, there shall be a rebuttable presumption that the contraction of the disease is work related and fully compensable for the purposes of benefits provided under [the Act].

A California Senate committee just passed a bill containing a Covid-19 presumption. In relevant part, here is what it says:

An injury [Covid-19 is defined as such] that develops or manifests itself while a critical worker is employed is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.

You can probably already see that Wyoming’s presumption is much weaker than the New Jersey presumption or the proposed California presumption. A presumption of “increased risk” is not the same as a presumption that a disease “arose out of and in the course of” employment. The causation standard in Wyoming is set out under WCSD v. Bruhn, 951 P.2d 373 (Wyo. 1997): causation is established “if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment then it arises out of employment . . .”

Nothing in a presumption of “increased risk” changes this general causation rule. Nor does it relax the need for medical causation. The statute had not previously covered “any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment.” So what the Wyoming presumption does is negate the requirement to show increased risk with respect to communicable diseases. Will that make Covid-19 cases easier to prove? Possibly. But a presumption of increased risk of Covid-19 contraction is simply not a presumption that Covid-19 is “work related and fully compensable for the purposes of benefits” nor is it a presumption that Covid-19 contracted by a worker “is presumed to arise out of and in the course of the employment.”

I like to believe this was not an exercise in smoke and mirrors.

Michael C. Duff

May 18, 2020 | Permalink | Comments (0)

Wednesday, May 13, 2020

The Stimulus “Liability” Debate: Don’t Forget Texas Elective Workers’ Compensation

Listening in on yesterday’s Senate Hearing on Corporate Liability During the Coronavirus Pandemic—you can find the video here and do a text search for “workers’ compensation”—I was especially pleased to hear workers’ compensation immunity discussed at 1:14:20 to about 1:14:50. Senator Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers’ compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers’ compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers’ compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in the Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of the nearly catastrophic events unfolding in the meatpacking industry. I recommend the article to you generally, and there is one point made within it that warrants reflection. Even if immunity conferred as a precondition for passing the next round of stimulus contains “only” stiff tort limitations, consider the situation potentially faced by certain Texas meatpacking employees (the article discusses the Tyson beef slaughterhouse in Amarillo, Texas). In the words of Eric Schlosser, author of the Atlantic piece (I do not necessarily vouch for the legal accuracy of everything contained in the excerpt, but the facts are clear enough):

 In Texas, where private employers are not required to carry workers’ compensation insurance, Tyson has opted out of the state system completely.

When a worker gets injured at the Tyson beef slaughterhouse in Amarillo, Texas, in order to get medical care from the company, that person must first sign a document saying:

"I hereby voluntarily release, waive, and forever give up all my rights, claims, and causes of action, whether now existing or arising in the future, that I may have against the company, Tyson Foods, Inc., and their parent, subsidiary and affiliated companies and all of their officers, directors, owners, employees, and agents that arise out of or are in any way related to injuries (including a subsequent or resulting death) sustained in the course of my employment with the company."

If the injured worker doesn’t sign the waiver, that person can be fired—and has to file a lawsuit against Tyson to get any payments for medical bills. It’s a fight that an immigrant worker is unlikely to win against a multinational corporation with annual revenues of about $40 billion.

If the Texas immigrant meatpacking worker would have had a "difficult" time prevailing in a tort suit before blanket immunity, the worker would have no possibility of prevailing “post-blanket.” Outcome? No possibility of workers’ compensation or tort remedies. That’s got to offend someone’s constitution.

Michael C. Duff      

May 13, 2020 | Permalink | Comments (0)

Saturday, May 9, 2020

Painful Lessons on the Workers’ Compensation Exclusive Remedy Rule: Desperate Litigation in the Meatpacking Industry

I have had a couple of inquiries in the last few days about lawsuits filed by employees against meatpacking plants. One illustrative case is Benjamin v. JBS, Phila. Ct. Com. Pl, 5/7/20. Another is Blanca Esther Parra v. Quality Sausage Co., Tex. Dist. Ct., 5/4/20. The fact patterns are essentially the same: the employer breached its duty to provide a safe work environment because it did not provide proper personal protective equipment, enforce social distancing measures, or comply with the Centers for Disease Control and Prevention’s guidelines to prevent the spread of the coronavirus. Infections were reported early in April (or so) and the employer knew that employees were sick. In one variation it is alleged that the employer intentionally misrepresented the safety of a facility.

In the workers’ compensation community we can sometimes be surprised at how little the general public (and apparently some practicing lawyers) know about even the basic operation of workers’ compensation. Inquirers sometimes seem surprised to learn that the only question I have is whether the individual hurt or killed “by” work is a statutory employee. If so, I obviously tell them that the harmed individual’s exclusive remedy against the employer is workers’ compensation. It is true that in some states intentional torts are not covered by workers’ compensation. You can imagine my surprise when reviewing court pleadings in these cases to encounter page after page of negligence allegations rather than the allegations I would expect: “the employer had the purpose of injuring or killing the employee, or knew to a substantial certainty that injury or death would result from its conduct.” Texas, of course, is a special case because it is the only state in the country in which employers are presumptively not covered by workers’ compensation and must opt into the system to be covered. A Texas employer choosing to “go bare,” may be liable in negligence. Even so, I would certainly expect a plaintiff (possessing knowledge of the existence of workers’ compensation) to shield itself against quick dismissal by informing the court at the outset that the employer has not opted into the Texas workers’ compensation system.

In short, the suits I have been looking at bespeak mounting desperation. Unless I am missing something they will be promptly dismissed. The situation has the feel of clients insisting, out of a sense of outrage, that something, anything be filed. As an injury practitioner it was often extremely difficult for me to resist the temptation to file these suits. I understand. And perhaps it will open a broader dialogue about the structure and adequacy of our state-law injury system.

Michael C. Duff

May 9, 2020 | Permalink | Comments (0)

Wednesday, May 6, 2020

Workers’ Compensation Covid-19 Presumption Established in California

Governor Newsom has issued an executive order establishing a workers’ compensation Covid-19 presumption in California. Key introductory points are that the presumption appears to apply to most if not all employees, it is rebuttable, and it is temporary, expiring sixty days after the date of the Executive Order (it has some retroactive application, however). In the interest of efficiency, I will quickly lay out what seem to me to be key sections in distilled and bulleted format [and insert occasional bracketed notes]. The full Order is here. One preliminary comment from this outsider: it appears a great deal of Covid testing and medical diagnostics will be required. One presumes the system has the infrastructure to accomplish it.  

Covid-19 (which I will subsequently refer to as “the disease”) is presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if:

  • An employee (apparently, any employee) is diagnosed with the disease within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • That day was on or after March 19, 2020 [This seems to be the earliest possible date of the presumption's application].
  • The place of employment was not the employee’s home.
  • The diagnosis was performed by a Board-certified physician [it appears that all diagnoses must be conducted by Board-certified physicians] and confirmed by further testing within 30 days of the original date of diagnosis.
  • The presumption is “disputable” but unless “controverted” the Workers’ Compensation Appeals Board is bound by it.
  • The presumption applies only to dates of injury occurring through 60 days following the date of the Executive Order [but, again, note the retroactive application above].
  • If liability for a claim is not rejected within 30 days after the claim is filed, the illness is presumed compensable, unless rebutted only by evidence discovered after the 30-day period. [Does this incentivize contests?]
  • An accepted claim is eligible for all benefits applicable under the workers’ compensation laws.
  • State sick leave benefits available in response to the disease must be exhausted before workers’ compensation benefits are available.
  • If an employee is diagnosed with the disease on or after the date of the Executive Order, the employee must be certified within the first 15 days after the initial diagnosis, and must be recertified every 15 days thereafter, for the first 45 days diagnosis; or
  • If the employee was diagnosed with the disease before the date of the Executive Order [as I read the language retroactive only to March 19, 2020], the employee must obtain a certification, within 15 days of the date of the Executive Order, documenting the period for which the employee had the disease and was unable to work, and must be recertified every 15 days thereafter, for the first 45 days following diagnosis.
  • The Administrative Director of the Division of Workers’ Compensation is authorized to adopt, amend, or repeal regulations deemed necessary to implement the Executive Order. Regulations promulgated in this manner “shall be exempt from the Administrative Procedures Act, except that the Administrative Director shall submit the regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register.” [I assume this means that notice and comment rulemaking are suspended but publication of the rule is still required—I do not know enough California administrative law to ascertain whether this is problematic. It “feels” problematic].
  • The Executive Order applies to all workers’ compensation insurance carriers, self-insured employers, and employers otherwise carrying their own risk, including the State of California.

That is a lot to digest; and I have lots of questions. It is also hard to think about this development without also considering the California Attorney General’s suit against “the Gig companies” this week which, if successful, could greatly expand the pool of employees subject to the presumption – though I doubt events could move that fast. Nevertheless, this is a whirlwind.

 Michael C. Duff

May 6, 2020 | Permalink | Comments (0)

Tuesday, May 5, 2020

Novel Smithfield Foods Public Nuisance Suit Dismissed Without Prejudice

In what for me is an ominous development the Smithfield Foods public nuisance case, about which I blogged below, has been summarily denied by a Missouri federal district court and the case has been dismissed.The decision took all of twelve days. In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed, but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set “mood points.” And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers’ compensation or tort law. Narrowly read, the heart of the case is simply that the court thought it should not interfere with OSHA or the USDA:    

 . . . OSHA has already requested information about the Plant’s safety measures. And if OSHA fails to act quickly on this information, Plaintiffs have a remedy: they may receive emergency relief through OSHA’s statutory framework. Section 662(a) of the Occupational Safety and Health Act . . . permits the Secretary of Labor to petition the court “to restrain any [dangerous] conditions or practices in any place of employment . . . which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [the Act].” Upon the filing of such petition, “the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding.” . . . If the Secretary “arbitrarily or capriciously fails to seek relief,” a worker can file a writ of mandamus to compel the Secretary to seek such an order . . . Granted, there may be some delay before Plaintiffs can invoke this procedure, but following this procedure ensures the USDA and OSHA can take a measured and uniform approach to the meat-processing plants under its oversight. The Court’s intervention at this point, on the other hand, would only risk haphazard application of the Joint Guidance. In sum, the Court holds that the issue of Smithfield’s compliance with OSHA’s guidelines and regulations falls squarely within OSHA/USDA’s jurisdiction. The Court finds dismissal without prejudice is preferable to a stay here so that Plaintiffs may seek relief through the appropriate administrative and regulatory framework.

The precise problem, of course, is that the Secretary of Labor is unlikely to petition the court “to restrain any [dangerous] conditions or practices . . .” And, yes, there “may” be “some delay” before a worker could pursue a writ of mandamus—such significant delay that the suggestion borders on the detached and unserious since workers are in hot spots now. I suspect I am not alone in failing to anticipate on the horizon the White Horses of OSHA and the USDA.

I tend to think of worker protections as front-end (regulatory) or back-end (compensatory, including tort law and workers’ compensation). The front-end here may be hopelessly tied up in various doctrines of empty-preemption and awaiting the action of inactive agencies. (Waiting for Godot?). (Granted the dismissal was "without prejudice," but I suspect courts will keep waiting). It is terrifying to contemplate the back-end somehow being obstructed by the Defense Production Act (or something worse from Congress). Although the court did opine that plaintiffs were, in any event, unlikely to prevail on the state public nuisance claim, I am not sure what comfort one can take from that determination, or whether a contrary conclusion on that issue would have changed the ultimate outcome. Perhaps it is no surprise that the article I have just had accepted by a law review is about the law of work stoppages, including the right of both union and non-union employees to act concertedly for their “mutual aid or protection.”

Michael C. Duff

May 5, 2020 | Permalink | Comments (0)

Saturday, May 2, 2020

The Public Nuisance Litigation in a Smithfield Foods Meatpacking Case: Workers’ Compensation Implications?

As Senate Republicans and corporations continue to lobby for the broadest possible “liability shields” in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court. From the Nolo Plain-English Legal Dictionary, a public nuisance is defined as “[a]n activity or thing that affects the health, safety, or morals of a community. It is distinguished from a private nuisance, which harms only a neighbor or a few individuals. For example, a factory that spews out clouds of noxious fumes is a public nuisance, but playing drums at three in the morning is a private nuisance bothering only the immediate neighbors.”

So, under the theory of the case I'm about to discuss, when a meat-packing plant does not conform to, for example, CDC social-distancing guidelines, it is not only the worker who is exposed to a heightened risk of Covid-19 contraction, it is the entire community. The suit Download Smithfield Public Nuisance Base Complaint, styled Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp., has been filed in the U.S. District Court for the Western District of Missouri. As I read the pleadings, the suit seeks not to impose “liability” but to compel the defendants not to do “extremely dangerous stuff” that might impact the health and safety of the surrounding community (through injunction and the remedy of abatement). I think of it as an “anti-externality” theory. The genius of the litigation is that it seems to circumnavigate common standing problems by invoking state nuisance law which confers (by definition) standing to a potentially broad swath of plaintiffs—a result that can be difficult under other legal theories in which a narrower class of plaintiffs must show concrete and particularized harms with respect to them.

The outcome could have potentially important workers’ compensation ramifications because it tests the limits of the federal Defense Production Act (DPA) in interplay with state law. As I said above, DPA “liability” is not at issue, because injunctive relief and abatement are sought. Defendants nevertheless—as one part of their “public policy” defense—attempt to displace state authority, under Missouri law, in the traditional state area of nuisance law. If the state can be easily ousted in this suit it may set a “mood point” for what could happen if questions of liability--including workers' compensation liability--under the DPA arise (this is the issue I think is of most interest to workers’ compensation professionals).

I have just gone through defendant Smithfield’s “Opposition to Preliminary Injunction.” (Scintillating material!). Here is my quick, abbreviated analysis. First, says defendant, plaintiff does not qualify for injunctive relief–unlikely to succeed on the state-law merits, no irreparable harm, & etc. Second, defendants provide a number of public policy arguments, in effect drawing on federal law and/or policy, that can be condensed to the following:

  • The injunction would disrupt, contrary to federal Department of Homeland Security guidance, an “essential business.”
  • The court should defer to (mainly federal) regulatory agencies “to promote uniformity and consistency within the particular field of regulation” (a primary jurisdiction argument—the court’s ruling might conflict with, for example, OSHA).
  • The injunction sought lacks necessary specificity and is overly broad. Plaintiffs seek to impose vague requirements on Smithfield that would inevitably lead to disputes over compliance, and turn this Court into a referee over workplace safety issues.

As an initial matter, the defendant’s ambiguity argument seems to be with the CDC Guidelines, not the plaintiffs. Second, the interference with critical infrastructure argument sweeps too far. If defendant was lobbing cannonballs into the surrounding community could it be seriously contended that a court could not interfere with the conduct? If the answer is no, is operating a Covid hotspot and sending sick employees home into the community less dangerous than lobbing cannonballs? I think not. Third, for me the persuasive rejoinder by plaintiff to the actual legal argument (internal citations omitted) is that:

Plaintiffs’ public nuisance claims seek a remedy against business operations that cause a harm to the public generally. OSHA’s jurisdiction focuses on the workplace. It has no authority to promulgate standards to protect the general public . . . And although Missouri’s cause of action for violation of the right to a safe workplace certainly relates to occupational safety, that claim has long formed the basis for injunctive relief in court, even subsequent to the creation of OSHA in 1970. Plaintiffs bring claims under state common law doctrines that OSHA’s regulatory scheme does not displace, and there is no reason for this Court to defer to the primary jurisdiction of OSHA before resolving those claims. In fact, primary jurisdiction is not applicable where plaintiffs do not seek to enforce a federal statute or regulation but bring “an independent state law cause of action for negligence and strict liability.”

In other words, a court cannot interfere with an agency when it issues orders involving conduct outside the agency’s statutory regulatory authority. In a supplemental pleading, after the President’s Defense Production Act Order, defendants doubled-down on the primary jurisdiction argument. Defendants contend that the Order “gives primary jurisdiction over Smithfield’s current operations to the Secretary of Agriculture, and any injunction issued by this Court would undermine that jurisdiction. The order requires the Secretary of Agriculture to consult with executive departments and agencies to balance, on the one hand, the importance of the nation’s meat supply and, on the other, compliance with ‘the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.’” The problem with the argument is that it does not comport with general notions of primary jurisdiction, which is a doctrine to be sparingly applied: no well-structured agency policy “deliberation” is being interfered with. Indeed, the hue and cry is that federal agencies are not acting. Secretary of Agriculture “balancing consultation” with executive departments seems worlds apart from the kinds of court interference with agency functions the primary jurisdiction doctrine contemplates.

To repeat myself a bit, the takeaway for a workers’ compensation audience may be that the thrust of the defendants’ arguments is that common law tort claims, and perhaps workers’ compensation claims, may be brushed aside in the interests of evolving and vague federal “public policy.” That does not square well with the historic police powers of the states. In this country national emergencies do not so easily lead to the instant annihilation of historically-grounded rights.

Michael C. Duff

May 2, 2020 | Permalink | Comments (0)