In Utero Workplace Injuries: Children Harmed By Solvents During Pregnancy
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In Utero Workplace Injuries: Children Harmed By Solvents During Pregnancy

Children who have been injured as a result of the negligent conduct of employers who expose pregnant mothers to hazards in the workplace are now entitled to bring a direct action against the mother's employer in California as a result of a long prayed for September 25, 1996 decision of the California Court of Appeal in Mikala Snyder v. Michael's Stores, Inc.

This decision expressly holds that an earlier California case that has precluded injured children from seeking relief in California courts since 1989, Bell v. Macy 212 Cal. App. 3d 1442, was incorrectly decided.

In a related article involving in utero exposure to methyl ethyl ketone which resulted in microcephaly we explain our analysis and approach to proof in one case arising from an exposure suffered by a pregnant woman and her fetus to solvents in an electronics industry "clean room." In that case we successfully pursued a "third party" action against a solvent manufacturer on behalf of the brain damaged child, having been precluded from suing the employer under the draconian reasoning of the Bell case.

Bell held that a child's claim for personal injuries as a result of an in utero poisoning or developmentally damaging exposure was barred by the "exclusive remedy" provisions of California Labor Code section 3600 and 3602. The Snyder Court had no difficulty determining that a child in the womb was not an employee and that any injury inflicted upon a child by the mother¹s employer is actionable to the same extent as any nonemployee's direct injury by the employer.

In Snyder, Mikala's mother was employed by Michael¹s Stores in Modesto. During Naomi¹s employment the store permitted a buffing machine powered by propane gas to be used in the store without adequate ventilation and monitoring, even though management had been informed that a toxic level of carbon monoxide gas was accumulating in the store during the use of the buffer.. On one afternoon the CO reached such a high level that 21 customers and employees were taken to hospitals, including Naomi. All were diagnosed with carbon monoxide poisoning.

CO binds to hemoglobin and reduces the capacity of the blood to transport oxygen and poisons a variety of intracellular mechanisms, further impairing cellular respiration. In Mikala's case the deprivation of oxygen resulted in permanent damage to her brain and as a result she suffers from cerebral palsy, seizure disorder, abnormal motor function and other serious conditions.

California law provides, Civil Code section 1714, that everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by a want of ordinary care in the management of his person or property. In other words, negligent acts will be held liable.

In contrast the rules are much different for an employee who is injured at work. Under California Labor Code section 3600, an employer's liability is without regard to negligence and the sole and exclusive remedy for an on-the-job injury to an employee is controlled by the workers¹ compensation system's schedule of benefits. The concept is that both employer and employee give up certain rights. The employer becomes liable notwithstanding whether or not the employer is at fault and if the injury is work related the workers' compensation system is the only available avenue for relief, including any derivative claims of family members, such as lost consortium, loss of support and emotional distress. It is a system without fault, but with severely limited damages and in some cases recoveries are precluded for certain injuries that are real but unrelated to one¹s ability to work, as victims of on-the-job castration or penile injury have learned to their gross dismay. The Bell decision was particularly mean-spirited because California's workers' compensation system has no provision of injuries to children, basically because they are not related to workplace productivity.

Over 40 states permit an action in tort for prenatal injuries to a child and even California law provides that an unborn child is "deemed an existing person, so far as necessary for the child¹s interests in the event of the child's subsequent birth." Civil Code section 43.1.

California adopted a minority position with regard to the claims of children injure in utero in the Bell case where a company nurse misdiagnosed abdominal discomfort as gas when it fact it was a ruptured uterus. The child suffered brain damage and dies at the age of 28 months. The court held in Bell that since the injury was a direct result of Macy's work-related negligence it was include within the workers' compensation system of claims. But, the workers' compensation system has never provided any benefits for injured children. In short the court created a right which provides no remedy and withdrew a right that did. Clearly a mean decision by judges who care not that the victim and his or her family would be condemned to a life of injury and mandatory provision of care. That the California Supreme Court would allow such a decision to stand is beyond belief, especially in light of California's statutory policy that in utero injuries suffered by a child born alive shall be compensated in the same manner as injuries to a living person. Civil Code section 43.1.

Wisely the justices deciding Snyder conclude that the decision in Bell "stretches the exclusivity rule beyond any reasonable bounds intended" and held that the bargained exchange of rights in the workers compensation system is "limited, however, to he consequences of injuries to the employee."

The practical impact of Bell was to confer virtual immunity on employers from claims of injured children and allowed employers to act negligently towards the unborn children of pregnant employees.

The wisdom of Justices Vartabdian, Thaxter, and Stone is indeed commendable. On behalf of a grateful parents of injured and handicapped children, "thank you" to his court for recognizing the plight of their children and families and for providing an avenue for relief.

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