2. Evolving Employer Liability Issues

3. II. Apportioning Fault Against Non-Party Employers
I. Pleading Around the Worker’s Comp Bar
II. Apportioning Fault Against Non-Party Employers

4. Worker’s Comp Act – In General
Traditional Exceptions to Exclusivity Bar of Worker’s Compensation Act:
1. Intentional torts committed by employer
2. Gross neglect
Emerging Threats to Exclusivity Bar:
1. “Substantial Certainty” – when employer was “substantially certain” injury would occur
2. Irregular Causes of Action
a) Fraud
b) Battery
c) Intentional Misrepresentation

5. Intentional Torts
Assault-like Element Required: In most jurisdictions, an employee must prove that the employer acted with conscious deliberate intent, “comparable to an intentional left jab to the chin,” to cause the employee’s injury
An employer’s willful and wanton, grossly negligent, or even reckless misconduct is insufficient

6. Sample Intentional Tort Cause of Action

9. Redefining INTENT  Substantial Certainty Standard
Departure from “actual intent” standard ?
Employee must show:
Harm was “substantially certain” to occur as a result of the employer’s act; and
Employer knew its actions were “substantially certain” to cause injury.

10. Sample Cause of Action Pleading “Substantial Certainty”

11. Intentional Tort Allegations Against Premises Defendants
COUNT ONE
Intentional Tort Allegations Against Premises Defendants
Defendant’s unmitigated failure to provide its employees, including Plaintiff, with a safe working environment around asbestos or asbestos-containing materials, rises to the level of intentional conduct, and any injury resulting there from rises to the level of an intentional injury, as Defendant knew with a substantial certainty that employees such as Plaintiff would be exposed to asbestos through their job duties; and knew with a substantial certainty that employees such as Plaintiff would contract an asbestos related illness, including asbestosis, by reason of their job and job duties at the premises.
In fact, based on the extent of Defendant’s knowledge of the health hazards of asbestos exposure and the ubiquitous use of asbestos during Plaintiff’s years of employment, it is impossible that Plaintiff was not substantially certain of these facts.
Because Defendant was substantially certain, as set forth above, that an employee like Plaintiff would contract an asbestos-related illness, including asbestosis, Plaintiff’s actions rise to the level of an intentional tort.

12. Additional Example (from Arkansas Complaint)

13. Where has “Substantial Certainty” Standard Been Adopted?
Eight States – Judicially Adopted:
Connecticut
Louisiana
Minnesota
New Jersey
North Carolina
Oklahoma
South Dakota
Texas
Repeal of Judicially-Adopted Substantial Certainty Test by Statute:
Ohio
West Virginia

14. What does “Substantial Certainty” Even Mean?

15. Synonyms of SUBSTANTIAL:
Big, consequential, earthshaking, earth-shattering, eventful, historic, major, material, meaningful, momentous, monumental, much, significant, important, tectonic, weighty

16. Synonyms of CERTAINTY
Assurance, assuredness, confidence, certitude, cocksureness, conviction, doubtlessness, face, positiveness, satisfaction, sureness, surety

17. Even Plaintiffs’ Experts Disagree About how to Define the Knowledge Element of “Substantial Certainty”

18. Frank Parker “Substantially Certain” Clips
Wilhite Depo

19. Frank Parker “Substantially Certain” Clips
Wilhite Depo

20. Arthur Frank “Substantially Certain” Clips
Wilhite Depo

21. Judicial Definition of “Substantial Certainty”

22. Intent to commit ACT that produced the injury
Minnesota:
Must be intentional or deliberate
Mere negligence insufficient
RAM Mut. Ins. Co. v. Meyer, 768 N.W.2d 399 (Minn. App. 2009)
Connecticut:
Evidence of lackadaisical or cavalier attitude towards safety insufficient
Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118 (2006)
South Dakota:
Evidence of gross negligence insufficient
Standard is not “virtual certainty,” but substantial certainty
Fryer v. Kranz, 616 N.W.2d 102, 105 (S.D. 2000)
Oklahoma:
Employer must have intended the act that produced the injury
Price v. Howard, 236 P.3d 82, 88 (Okla. 2010)

23. Intent to INJURE the employee
New Jersey:
Requires more than knowledge and appreciation of the risk
Crippen v. Central Jersey Concrete Pipe Co., 775 A.2d 716 (N.J. App. Div. 2001)
Louisiana
Employer’s belief that there is a high probability that someone may, or even probably will, get hurt if a workplace practice is continued is insufficient
Must show that the employer had a subjective appreciation that the injury was virtually certain, inevitable, or incapable of not occurring
Reeves v. Structural Preservation Systems (La. 3/12/99) 731 So.2d 208, 213

24. Legislative Responses
Florida and Michigan  After Supreme Court adopted the “substantially certain” standard, their legislatures eliminated the standard by statutorily defining “intent” to exclude the “substantially certain” standard
West Virginia  Legislature adopted its own 5-part test
Existence of unsafe working condition that contained a “high degree of risk and a strong probability of serious injury or death”
A “subjective realization and an appreciation” of that risk and probability on the part of the employer
A violation of a statute or regulation or an accepted safety standard that addressed the situation at issue specifically
Intentional exposure of the employee by the employer to the condition; and
Serious injury or death of the employee as a result of the unsafe condition

25. Could Employers in the 1960s and 1970s Have Been “Substantially Certain” that Their Employees Would Develop Asbestos-Related Diseases?
Exposure to asbestos only increases a person’s risk of asbestos-related disease to 1 in 100,000, or less than 1%.
Odds of contracting the flu are 1 in 5, or 20%
Odds of developing carpal tunnel syndrome is 1 in 20, or 5%

26. Yet Plaintiffs Experts’ Answer This Question in the Affirmative

27. Frank Parker “Substantially Certain” Clips
Wilhite Depo

28. Frank Parker “Substantially Certain” Clips
Wilhite Depo

29. Arthur Frank “Substantially Certain” Clips
Wilhite Depo

30. Arthur Frank “Substantially Certain” Testimony Struck
Dr. Frank testified:
Asbestos-related disease was “substantially certain” to occur even at today’s legal levels.
The employer defendant was “substantially certain” that the asbestos disease would occur in some percentage of employees.
STRUCK
Wilhite Depo

31. Apportioning Fault Against Non-Party Employers
PART TWO:
Apportioning Fault Against Non-Party Employers

32. Use of Regulations
Sword: Proving up Negligence of “Empty Chair” Premises or Employer Liability Defendants
Shield: Demonstrating Compliance with Regulations to Show Premises Liability or Manufacturing Defendant was Not Negligent

33. California Case-in-Point Stewart et al. v
California Case-in-Point Stewart et al. v. Union Carbide Corporation Los Angeles Sup. Ct. no. BC (11/16/10)
Plaintiff’s counsel argues this case stands for the proposition that evidence of OSHA regulations is admissible to prove notice to Defendants and for no other purpose
In reality, the OSHA discussion occupies a single page, and the Court indicated that the following limiting instruction regarding the 1972 OSHA standards on asbestos was not error

34. Instruction Given
“…information on government standards has only been allowed for the limited purpose of notice or as to what information was available to defendant Union Carbide Corporation and others. Compliance with government standards or regulations does not preclude the potential imposition of liability for a defective product or negligence.”

35. Reconciling the two prongs of the court’s ruling:
The Court of Appeals approved of the instruction as a correct statement of the law, and noted that Union Carbide was nonetheless properly permitted to make the argument that “OSHA regulations are the law.”
In other words, the limiting instruction was not error, but neither was defense counsel’s argument
Reconciling the two prongs of the court’s ruling:
Evidence of compliance with a government regulation may be used as evidence of negligence by any party or non party

36. Negligence per se Eases the burden of proof in a tort case
Distills number of facts to be determined by jury to one – whether the defendant committed (or omitted) the regulated act
If the violation occurred, the defendant is automatically liable
If there was no violation, there can be no liability

37. Blurring the Issue: Cal-OSHA
Labor Code section :
Neither the issuance of, or failure to issue, a citation by the division shall have any application to, nor be considered in, nor be admissible into evidence in a personal injury or wrongful death action, except as between an employee and his or her own employer. Sections 452 and 669 of the Evidence Code shall apply to this division and to occupational safety and health standards adopted under this division in the same manner as any other statute ordinance, or regulation.

38. In the same recent trial, Plaintiffs argued that the existence of this statute supported their reading of Stewart as a complete bar to the admission of OSHA evidence by any Defendant

39. Why Plaintiffs’ interpretation is WRONG
1. Ignores legislative history of §
Enacted in 1971
Long before advent of modern day complex toxic tort and asbestos litigation, where success is typically premised on proving up alternate exposure by a third party defendant
Early on, statute was interpreted as a bar to the presentation of evidence to prove the negligence of Cal-OSHA’s safety inspectors, who were being sued for failing to cite safety violations that later caused injury:
“The fact that the state has a mandatory duty to inspect and to enforce Cal-OSHA is irrelevant to the issue of whether those provisions can be relied upon in a personal injury action against the state when the state is not the employer. It is evident that the purpose of section is to prevent the technical Cal-OSHA safety provisions from enlarging the personal injury liability of third parties beyond basic common law liability.”
State of California only defendant involved in appeal.
Brock v. California, 81 Cal. App. 3d 752, 754 (1978)

40. Only applied to bar evidence of non-compliance with Cal-OSHA, not federal or other state regulations
3. Statute amended in 1999
Common law rule restored, and defendants are now once again permitted to use “Cal-OSHA provisions to establish standards and duties of care in negligence actions against private third parties.”
Elsner v. Uveges, 69 Cal. Comp. Cas 1511 (2004)

41. 1971: Texas amended WCA to cover mesothelioma
Is Mesothelioma Covered by Worker’s Comp? Bearce v. Gen. Dynamics Corp.
1971: Texas amended WCA to cover mesothelioma
Bearce case (2011) – Federal MDL
Plaintiff’s injuries occurred in 1960s
Held: WCA did not bar PL’s common-law action for mesothelioma-related injuries because his injuries occurred before they were compensable
Criticism: court used definition of “bodily injury” commonly used in insurance policy context, not tort context