Morrison Mahoney Partner Ted Murphy recently defended an appellate challenge to a defense verdict he previously secured in favor of our client — the prime designer and builder of the nation’s submarine fleet – in a tragic and closely-watched COVID-19 death case brought under the Longshore and Harbor Workers’ Act, 33 U.S.C. sec. 901 et seq.
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 arose out of and within the course of his employment at our client’s shipyard, including his “close contact” with the infected co-worker and infected contractors who also happened to be working in his work area. A Washington, D.C.–based appellate court affirmed the trial judge’s conclusion that plaintiff had not met her burden of proving, by a preponderance of the evidence, such a causal connection.
The 3-judge panel ruled that substantial evidence supported the trial judge’s conclusion, including: (1) our client’s state of the art infection control procedures, (2) statistical evidence of a significant community spread of the virus during the relevant time frame, (3) the decedent’s attendance at a crowded outdoor public event in the community, (4) OSHA’s conclusion that our client’s practices were within all applicable regulations and COVID guidelines, and (5) the opinion of our well-credentialed medical expert who testified that the spread of the disease from the co-worker and/or contractors was unlikely given that masking was enforced and cleanliness maintained and his testimony that the more likely source of the infection was the public gathering where precautions, such as masking, were not enforced.
