Covid Masks, Warnings and Asbestos Litigation

Nursing Home Liability for COVID-19 Outbreaks
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Covid-19 has changed our world. From every day mask wearing and social distancing to working from home, our lives have changed immeasurably. So too in toxic tort litigation. Courts and parties have struggled to keep cases and dockets moving via Zoom and phone conferences, and have grappled with how and when trials will go forward. Of course, this is all due to a novel virus that has ravaged the nation and world, causing injury and heartbreaking deaths. It has also given us time to reflect on how Covid has affected our day to day business affairs, including asbestos litigation from a defense perspective.

Warnings about Covid and its effects have come from numerous sources: television, internet, employers, family, neighbors, etc. It is common knowledge that Covid is a viral disease contracted from exposure to others carrying the virus, and that it can cause significant illness and/or death. The Centers for Disease Control and Prevention (CDC) has issued numerous warnings, and provided recommendations on how to avoid exposure including wearing a mask, social distancing, avoiding crowds and more recently, getting a vaccine jab when available. But we all know someone who does not heed such warnings.

From Covid “doesn’t exist” to “it’s just a cold”, there are some that will always refuse to take precautions to protect themselves and/or others. Like asbestos and cigarette smoking, Covid exposure is a known health danger, and how someone reacts to potential exposure can be used as favorable evidence. This evidence could perhaps be used to show a practice of avoiding guidance and warnings concerning exposure to other dangerous substances, despite a client’s best efforts.

Missouri and Illinois Failure to Warn Law

Under Missouri products liability law, an asbestos plaintiff has two theories of recovery available: strict liability and negligence, and both have a failure to warn component. Under strict liability, Missouri applies the test set forth in Restatement (Second) of Torts, § 402(A), which is codified by § 537.760. See Poage v. Crane Co., 523 S.W.3d 496 (Mo. Ct. App. 2017). A plaintiff must show:

(1) the defendant sold a product in the course of its business; (2) the product was then in a defective condition, unreasonably dangerous when put to a reasonably anticipated use; (3) the product was used in a manner reasonably anticipated; and (4) the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold. Id. And “[t]he strict liability theory is further divided into liability for [1] defective design of a product and [2] liability for failure to warn of an inherent danger in the product.” Id.

To submit a case for negligence, a plaintiff must show that “the defendant had a duty to protect him from injury, the defendant failed to perform that duty, and the defendant’s failure proximately caused his injury.” Strong v. American Cyanamid, 261 S.W.3d (Mo. Ct. App. 2008). Under both strict liability and negligence theories, the plaintiff is required to show a causal connection between the defendant’s conduct and the plaintiff’s injury. Id. A product is considered to have a design defect when, “a design is itself inadequate, rendering the product unreasonably dangerous without regard to whether a warning is given[.]” Moore v. Ford Motor Co., 332 S.W.3d 749 (Mo. banc 2011).

Under Missouri law, for a plaintiff to establish the cause of injury based on a failure to warn, he must show that a plaintiff would have heeded the warning and altered his behavior if an adequate warning existed. Moore, 332 S.W.3d at 762. A plaintiff is only required to show he lacked adequate knowledge of the risks associated with use of the product to receive the presumption, and this presumption “would make a prima facie case that had [the defendant] given [the plaintiff] an adequate warning, [the plaintiff] would have heeded it.” Id.

Under Illinois law, in a negligence action, a plaintiff must present sufficient facts to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury that proximately resulted from that breach. Carrizales v. Rheem Manufacturing Co., 226 Ill. App. 3d 20, 589 N.E.2d 569 (Ill. App. Ct. 1991). Factors that a court considers in determining the existence of a duty are (i) the foreseeability of the injury, (ii) the likelihood of injury, (iii) the magnitude of the burden of guarding against the injury, and (iv) the consequences of placing that burden upon the defendant. Id.

A duty to warn of a hazard will be imposed only where there is unequal knowledge, either actual or constructive, and the defendant knows or should know that injury may occur if no warning is given. Id. If a danger is obvious and generally appreciated there is no duty to warn because the purpose of a warning is to apprise the party of danger unknown to him so that he may protect himself from that danger. Id.

Fairness and What a Reasonable Jury Should Hear

What is deemed an adequate warning and plaintiff’s knowledge and actions at the time of the warning (along with the Defendant company) will likely be up to a jury to decide. Therefore, it is up to defense counsel to present as much evidence as possible concerning the details of a client’s warning, and what the plaintiff did or not do as a result. This is important because products liability law addresses the knowledge and actions of both parties, not just a defendant.

Many asbestos defense counsel already inquire about a plaintiff’s smoking history as a general, generic warnings inquiry. This includes details on smoking years, frequency, brands, U.S. Surgeon General cancer warnings, and what plaintiff did or did not do after seeing the warnings. Many plaintiffs admit that they continued to smoke even with the knowledge that smoking could cause lung cancer. And even after their doctor advised them to stop. And sometimes even after they develop lung cancer.

Covid could be another tool in the same vein. Similar to a plaintiff potentially ignoring the warning concerning asbestos on a product or premises, and ignoring the Surgeon General warnings on cigarettes, did a plaintiff ignore the CDC warnings and recommendations concerning Covid? Would a reasonable person ignore these warnings?

Plaintiff’s counsel will undoubtedly argue that Covid (and smoking) has no relevance to plaintiff’s asbestos-related disease, but it could and should be used to present evidence of a plaintiff’s failure to heed warnings in general. If a plaintiff ignores the very serious warnings of cigarette smoking, Covid and other areas, perhaps no asbestos warning would suffice for this plaintiff. A reasonable jury should be able to consider this. Plaintiff’s counsel may also argue that Covid inquires will delve into personal politics and culture arguments, which could be irrelevant. However, a reasonable jury (already subject to voir dire) should be able to separate facts and actions from any political arguments and the court should be able to make pre-trial rulings to clarify what is allowed. And, any jury should be a cross section of the community with a myriad of political views.

Below you will find just a few areas of inquiry already addressed in asbestos depositions, along with questions that could be posed concerning Covid and warnings. As you can see, the questions are very similar and illustrative.

At the very least, Covid warnings and asbestos is a topic that should be discussed among counsel, clients, carriers and anyone else seeking fairness in asbestos litigation.

Client’s Product/Premises and Warnings

  • What did the warning specifically say?
  • What was your understanding of the health risks associated with asbestos exposure, if any?
  • After seeing the warnings, did you wear a mask or respirator, or ask for one?
  • Did you discuss the hazards of asbestos with your employer, union, family member or anyone else?
  • Did you change your work practices given the warning? Why not?

Tobacco use and Warnings

  • What warning did you see of the pack of cigarettes?
  • What was your understanding of the health risks associated with tobacco use?
  • When did you know of the hazards?
  • Were you aware of the Surgeon General warnings concerning cigarette use and lung cancer?
  • Did you stop smoking? Did you seek professional help?
  • Did you discuss the dangers of smoking with your doctor?
  • Did you avoid others that smoked, whether in your families or co-workers, and if not, why not?

Covid and Warnings

  • What warnings did you receive and from what source?
  • What is your understanding of the health risks associated with Covid?
  • Did you wear a mask, and under what circumstances?
  • Did you practice social distancing?
  • Did you seek a vaccine?
  • Did you discuss Covid and any associated risks with your doctor?
  • For any of the above, why not?

Tim Assouad

E. Timothy Assouad is a partner in Foley & Mansfield’s St. Louis office. He primarily practices in toxic tort, but he also has a background in commercial litigation, subrogation and collection matters.

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