California Appellate Court Considers Employer Liability for Harm to Unborn Child of Employee

Overview

An employee working in a chemical plant is allegedly exposed to dangerous chemicals causing birth defects to his unborn child. Does California law support a tort claim for damages for preconception birth defects in the child?

In Elsheref v. Applied Materials, the California Court of Appeal, 6th District, 2014 WL 278950, considered the question posed above, and answered with a resounding “yes and no”.

Court of Appeal Decision

Khaled Elsheref (Khaled), worked as an engineer at a semiconductor manufacturing facility owned and operated by Applied Materials, Inc. (AMI). Khaled’s son, Waleed Elsheref, (Waleed) was born with a number of birth defects allegedly caused by Khaled’s exposure to toxic chemicals at AMI. Waleed sought compensation for those injuries, and his mother, Zainab Musbah (Zainab) sought to recover for emotional distress suffered in connection with her son’s injuries. The court entered judgment for AMI on the ground that it owed no legal duty to the employee, his wife or their child. Plaintiffs appealed.

The Elsheref court first discussed existing California preconception tort law. The seminal case is Turpin v. Sortini (1982) 31 Cal.3d 220 (Turpin), where the California Supreme Court recognized a cause of action for a preconception tort, stating that a child is “entitled to recover against the negligent party” (id. at p. 231) for injuries “caused by negligent treatment of her mother during pregnancy, or . . . result[ing] from a tort committed upon her mother before conception.” However, in Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103 (Hegyes) the court denied recovery to a plaintiff who sought to recover for injuries related to her premature birth, which resulted from a shunt doctors fitted her mother with following a car accident that occurred years before plaintiff’s conception. The Hegyes court determined that a preconception “duty has never been found, nor has liability been imposed, in a preconception negligence case where defendant was not a medical professional or product liability manufacturer.”

The Elsheref court then turned to the case at hand, noting that the court’s task in determining whether a duty exists “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” The court concluded that, in consideration of all of the relevant factors and the “overwhelming need to keep liability within reasonable bounds,” a common law duty of care should not be imposed on AMI in the circumstances of the case and the plaintiffs could not pursue a negligence claim against AMI.

The Elsheref plaintiffs, however, also alleged strict products liability against AMI for an allegedly defective product resulting in Waleed’s injuries. The Elsheref court concluded that the legal concept of “duty” required for a claim of negligence is not required to pursue a claim for strict products liability, and therefore reversed the trial court’s decision so as to allow plaintiffs to pursue a claim against AMI as a manufacturer of a defective product under a theory of strict products liability.

Overview An employee working in a chemical plant is allegedly exposed to dangerous chemicals causing birth defects to his unborn child. Does California law support a tort claim for damages for preconception birth defects in the child? In Elsheref v. Applied Materials, the California Court of Appeal, 6th District, 2014 WL 278950, considered the question […]