Boeing must face negligence claims over birth defects of employee's child

(CN) — A Washington Court of Appeals panel agreed Monday that Boeing can be sued for negligence by the parents of a child who was born with birth defects they blame on the father’s exposure to harmful materials while working at the company’s manufacturing plant in Everett.

A three-judge panel unanimously rejected Boeing’s argument that it did not owe the child, Milo, a duty of care because he wasn’t yet conceived when the company purportedly damaged his father’s reproductive system.

“The relevant inquiry is not whether a preconception duty can ever be owed in the employment context, but whether our standards support that Boeing owed Milo a duty of care — they do — and whether Milo was a foreseeable plaintiff — he was,” Judge Ian Birk wrote.

The company had argued extending Boeing’s duty of care to a child that hadn’t been conceived yet “would create a host of practical problems,” including an “unpredictable and potentially unlimited downstream liability for employers."

Those concerns, Birk said, don’t excuse Boeing from owing a reasonable duty of care to Milo.

Employers needn’t inquire into their employees’ plans for having children to satisfy their duty of care, the judge said, but they need to fully inform them of the risks and not act negligently.

“The exact timing of the risk — whether the damaging chemical exposures occurred before or after conception — is not dispositive,” he wrote. “If Boeing’s conduct involves an unreasonable risk of injury to workers’ children, the timeline bears little import to the existence of a duty.”

Moreover, Birk explained, state law recognizes a duty for employers to exercise reasonable care in preventing harm to workers’ immediate family from hazardous workplace exposures.

The law doesn’t demand that a defendant knows a specific worker has household members who may be exposed, the judge said, but turns on the fact that it is foreseeable that workers, in general, have household members who may be exposed.

“It is just as foreseeable that workers, in general, will conceive children within their household,” he added.

Milo’s parents, Teela and Thomas Bauer, sued Boeing for negligence. The child was born with born with permanent and disabling birth defects, including multiple congenital heart defects and other anomalies.

The father is an electrical installer at the Boeing plant, and according to their lawsuit, he is regularly exposed, through inhalation, ingestion and skin contact, to volatile organic solvents and heavy metals.

The parents claim that the father reasonably relied on Boeing’s superior knowledge of potential hazards in the workplace, its ability to inform, educate, and warn of potential hazards, and its ability to enforce appropriate safety measures and procedures.

A Superior Court judge denied Boeing’s bid to dismiss the case but agreed to let the appellate court weigh in on the question whether Washington law recognizes a duty on the part of an employer to the not-yet-conceived offspring of its employees as well as on the question whether such a claim is barred by the Washington Industrial Insurance Act.

The appellate panel said the claim wasn’t barred by that statute.

Representatives of Boeing and an attorney for the parents didn’t immediately respond to a request for comment.

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