Houston attorney warns employers to prepare for wave of COVID-19 wrongful death suits
By David Yates
HOUSTON – Throughout Texas, wrongful death suits alleging COVID–19 exposure are being filed – perhaps a sign of things to come.
While virus-related lawsuits aren’t commonplace yet, a Houston attorney is warning employers to prepare for a wave of wrongful death litigation.
David Barron, an attorney with Cozen O’Connor, believes there will be a large number of cases filed in front line industries and workplaces where there have been substantial outbreaks.
There are two big hurdles, Barron says, to bringing a COVID wrongful death suit – proving causation and required intent.
“Employers will, of course, defend cases on the basis of lack of causation,” said Barron. “What is important to note, however, is that OSHA requires employers to investigate whether a COVID–19 case arose in the workplace and potentially log the case. This is a Catch-22 for employers because logging the illness as work related concedes causation. A failure to log will be scrutinized and a lack of diligence may be construed as ill intent.”
When it comes to liability, employers with workers compensation insurance can only be sued for gross negligence. The standard for nonsubscribers is negligence.
“Most employers in Texas subscribe to workers compensation, so the majority of deaths will be in workplaces where the standard of liability is gross negligence,” Barron said. “On face value this seems to be a tough standard to meet, but the fast moving nature of this crisis may create real problems for employers when their actions are viewed with the benefit of 20/20 hindsight.
“In addition, the highly political nature of the crisis may create situations where outspoken employees or supervisors say things that could negatively impact an employer’s case.”
To help prevent litigation, Barron recommends employers take the following steps:
Pay close attention to the investigation of all employee COVID–19 cases for OSHA 300 logging purposes, treating every investigation as if it will be part of a defense in a wrongful death case;
Document the timeline surrounding every employee case before the trail gets cold; and
Designate a COVID–19 officer in the company who can document each and every step the company takes to protect employee health and safety.
As for the size of the possible litigation wave, Barron has a “sense” that there will be a large number of cases, but not “as big as you might expect.”
“If you analyze the statistics on fatalities, they skew heavily towards older Americans,” Barron said. “If you factor out those who are retired or not working, the number gets substantially smaller. It is very possible that only ten to twenty percent of fatalities would have facts that would even potentially give rise to an employer lawsuit.”
When asked about what kind of dollar amount jurors might put on COVID wrongful death suit, Barron said the value will be very much dependent on the facts in each case.
“State law punitive damage caps will likely apply and successful plaintiffs may find a tough audience at the appellate courts in Texas, which tend to be conservative,” he added.
Barron partners with clients to offer practical solutions to labor and employment problems of all sizes and shapes before they end up in litigation.