Morrison Mahoney Partner Ted Murphy recently secured a trial win in favor of our client — the prime designer and builder of the nation’s submarine fleet – in a tragic and closely-watched death case brought under the Longshore and Harbor Workers’ Act. Plaintiff alleged that her husband’s COVID-19 infection and death at age 49 were caused by his exposure to a co-worker (also a member of the electrical department) who had tested positive and been immediately removed from work four days prior to the decedent also testing positive. For purposes of contact tracing, the co-worker was a “close contact” of the decedent and the company immediately notified the latter of the co-worker’s positive test. As a close contact, our client’s policy required that he test and screen at the beginning of each shift at its on-site occupational health clinic.
The decedent was asymptomatic after his positive test, but that soon changed. He declined to pursue formal medical treatment until his condition markedly worsened. An ambulance crew then took him from his home to a local hospital that was unable to treat him due to the severity of his condition. He was immediately flown to a major medical center, but unfortunately succumbed to the effects of his COVID infection one week later.
The sole issue at trial was whether the decedent’s infection was related to his employment at our client’s shipyard, including his extensive exposure to the infected co-worker. Ted introduced evidence of our client’s state of the art infection control procedures in effect at the time in terms of masking, testing, ventilation, cleaning, enforcement, and other precautions taken to control the spread of the virus. He also introduced statistical evidence of a significant community spread of the virus during the relevant time frame in 2021, as well as the decedent’s attendance at a crowded public event in the community. Ted also introduced OSHA’s comprehensive investigation into the death following the company’s self-report to that agency. OSHA concluded that our client’s practices were within all applicable guidelines and declined to issue any citations.
Both sides offered complex expert testimony on the source of the decedent’s infection. In a detailed opinion, the federal administrative law judge hearing the case ruled, based on a recent Supreme Court case, that COVID-19 is not an “occupational disease.” He further found that plaintiff had not met her burden of proving, by a preponderance of the evidence, that the decedent’s infection arose out of his work, despite his close proximity to the infected co-worker in the days leading up to the co-worker’s positive test. In making this finding, the ALJ adopted the opinion of our expert who testified that the spread of the disease from the co-worker was unlikely given that masking was enforced and cleanliness maintained. The more likely source of the infection was the public gathering where precautions, such as masking, were not enforced.
