Take-home Exposure Claims May Lead to COVID-19 Litigation
Anyone familiar with asbestos litigation over the past several decades is well-aware of the so-called “take-home exposure” claim, in which the injured plaintiff claims to have been exposed to and injured by asbestos that another household member brought home on their person or clothing. This type of claim often arises out of an alleged workplace exposure to asbestos. In that scenario, the injured plaintiff does not claim to have been personally exposed to asbestos at the workplace, but instead asserts that a family member was exposed to asbestos at their workplace and brought the asbestos exposure home.
According to a recent Reuters report, this take-home exposure model could be employed in the COVID-19 realm as well. Under this theory―which the article reports has already started to transpire–a person infected with COVID-19 may bring suit against those allegedly responsible for a family member’s exposure to COVID-19 at some other location, like their place of work, that resulted in exposure to and infection of the plaintiff. If this nascent trend continues, this could result in a large number of lawsuits.
Of course, any such lawsuit would face a number of legal obstacles. One significant challenge would be medical causation–establishing that the plaintiff’s family member was indeed exposed to COVID-19 at the targeted location, and that the family member did bring home COVID-19 that resulted in the plaintiff’s infection. Defendants sued on such a claim would certainly explore alternative avenues of exposure that the plaintiff might have had, and those inquiries would necessarily be fact and case specific depending upon the plaintiff’s activities.
Another significant challenge would relate to duty: What was the duty of the defendant(s) with respect to the targeted location to prevent the alleged exposure to the family member at that location? This, too, would be fact and case specific, depending on the specific location and the family member’s relationship to that location. For example, was the family member an employee at that location, and should the employer have known of the potential risk of exposure to COVID-19 and done more to prevent it? Was the family member a customer of a business at that location, and if so what should the business have done to foresee and prevent the exposure?
Another challenge might relate to defendants who provided a warning to the family member of the potential risk of exposure to COVID-19 at that location, and what protective effect that warning might have for the defendant facing liability.
These issues―and many others―have been litigated and developed in a myriad of take-home asbestos lawsuits over the years. The theories developed by asbestos plaintiffs’ lawyers to prosecute such claims, and the corresponding defenses developed by asbestos defense lawyers on behalf of their defendant clients, appear poised to get a new home in COVID-19 litigation.