Tag Archives: Civil

On WC and Defamation Lawsuits

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Happy Wednesday, dear readers!

Gather around for story time!  It was about 15 years ago, that on a scorching Sacramento morning, I sat down for my first class in Torts.  I cannot adequately describe for you’re the excitement I felt that first day of law school, as I look forward to what promised to be the best grad school class ever!

Nor can I now, all those years later, relate to you the depth of sadness and the merciless feeling of betrayal that grew in my heart over the next several weeks, as I learned that torts had nothing to do with tasty little baked goods, but instead was the province of civil wrongs.  It was there that I  learned that, technically speaking, two civil wrongs could potentially lead to the creation of a civil right.

Anywho, jumping back to today, one of the torts that we studies with so much alacrity is the tort of defamation.  There are many species of this, such as slander, libel, etc., but generally speaking, if you damage a person’s reputation, you will have to make him or her whole.

So let’s talk about the case of Fonseca v. Wal-Mart.  In late 2024, a jury awarded Mr. Fonseca almost 35 million dollars in his defamation suit against Wal-Mart.  After he filed a workers’ compensation claim for his former employer, Wal-Mart accused him of making a fraudulent claim because his doctor gave him work restrictions against driving at work, and he was video-taped driving his personal vehicle. 

Ultimately, Mr. Fonseca applied for other jobs with other employers, but alleged that he had to repeat the reason for his termination of employment to these potential new employers.  Wal-Mart apparently plans to “pursue all available remedies” which would likely be an appeal.

As you can imagine, your humble blogger wasn’t there when Mr. Fonseca first was injured, or was video-taped, or was fired, or was trying to get another job with another employer.  The jury found the facts based on the evidence presented and awarded money accordingly.

But, in true Wal-Mart fashion, we are being offered a great value here!  For the price of reading this blog post, we are all reminded that unlike Las Vegas, what happens in comp doesn’t necessarily stay in comp.  What should the employer do when given information suggestion the injured worker is exceeding work restrictions?

Well, for starters, it’s a good idea to establish a record, particularly with an investigator who can document dates, times, and activities to a level that will not be effectively impeached in court.  Then, it’s important to realize that the only ones among us who are doctors… are doctors.  No amount of watching House or reading Sherlock Holmes will qualify the laymen among us to determine if the applicant is a faker.

Factual evidence should be submitted to the treating physician and/or a med-legal.  It can be done with a deposition or a request for supplemental report.  “Dear Dr. Nick Riviera, would you please review the enclosed footage, taken on April 1, 2025, and advise if Mr. Malingerer is engaged in activities consistent with his presentation in your clinic about 20 minutes ago?”

Whatever the actual facts in the Fonseca case, facts that are, no doubt, hotly contested by the parties, this serves as an excellent reminder to all of us to be very careful with the downstream consequences of our actions.  

Cal. Supreme Court: Employers Have No Duty to Employees’ Household Member on COVID19

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Happy Monday, dear readers!  And truly, a happy Monday it is for the defense community, both workers’ comp and civil.  The California Supreme Court has issued its opinion in the case of Kuciemba v. Victory Woodworks essentially ruling that no duty of care exists on the part of employers to household members of employees when it comes to COVID19. 

The Kuciemba case, along with its brother-from-another-mother case, Ek v. See’s Candies, Inc. has been covered from time to time by this most humble of blogs.  Both cases essentially ask the same question: can the employer be held liable to household members of employees when COVID19 exposure (and, presumably, infection) occurred at the workplace and was brought home by employees to be transmitted to the household members?

Of course, the logic of this theory traces the path of Kesner v. Superior Court of Alameda County, a 2016 decision in which the California Supreme Court created a duty of care on the part of employers to household members of employees who brought asbestos home on their clothes, exposing non-employees.

But, unlike the asbestos line of cases, the California Supreme Court rejected such a theory: “although it is forseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.  These and other policy considerations lead to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.”

In distinguishing Kesner, the Kuciemba Court reasoned that while the only likely source for an asbestos exposure would have been the employer’s premises, COVID-19 was highly contagious and almost impossible to spread, and infection sources would also vary depending on the level of diligence on the part of the employee.  “The line between an employer’s negligence and transmission of the virus to household members is thus not as direct as in the asbestos context.”

One key factor in the Supreme Court’s decision appears to be the policy consideration weighing against finding liability on the part of the employer.  However, the Court left the tort liability door slightly cracked, rather than slammed shut: “In doing so, we are mindful that social conditions surrounding COVID-19, much like the virus itself, have evolved a great deal since the start of the pandemic, and these changes are likely to continue.  We acknowledge that the calculus might well be different in the future.”

So, while the current position of the California Supreme Court appears to be that no duty exists on the part of the employer to the household members of the employee in prevent COVID-19 exposure, if COVID-19 continues to plague us in 5 years, will some enterprising plaintiff’s attorney run the gauntlet again?

Getting to the Supreme Court is expensive and time consuming.  Hopefully, the little opening left by the Kuciemba court will not be enough to prompt the plaintiff’s bar to try again.  In the meantime, your humble blogger will be stopping by See’s Candies to pick up some cherries in chocolate to celebrate this result.

Cal. Supreme Court Rejects See’s Candies Case

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Happy Friday, dear readers!

As we head into the weekend, your humble blogger brings you a brief update on the See’s Candy case.  As my beloved readers will recall, in the matter of Ek v. See’s Candies, the Court of Appeal held that plaintiff-widower can proceed in a civil tort action against her employer on a theory that her employer’s negligence caused her to transmit COVID19 to her husband, resulting in his death.

As yet another shameless plug, dear readers, if you missed the webinar on this issue drop me a line about reviewing the recorded version.

Anywho, all eyes were on the Supreme Court to see if there would be a new floodgate of asbestos-like litigation with employers researching the family tree and domestic living situation of every employee to test positive for COVID19.

Earlier this week, the California Supreme Court declined to review the decision, meaning that the case can proceed rather than being dismissed outright.

And here we are dear readers – your humble blogger’s suggestions stand regarding calling for an increased level of cooperation between workers’ compensation defense teams and civil liability defense teams to make sure the defense of one case does not prejudice the defense of the other.

Have a great weekend!

Update on Kuciemba and Civil Liability for WC Covid19

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Happy Monday dear readers!

Here we are again and today the WCAB is back to in-person hearings and trials.  Your humble blogger has reports from the first few practitioners who have had in-person trials again and here is the video with a description of what life is like back at the Board in person:

Thanks to all my beloved readers who managed to attend the COVID19 update last week.  If you missed it and would like an encore for your office, please drop me a line! 

As one attendee pointed out, there is an updated in the Kuciemba case.  As you may recall, the Federal trial judge in the Kuciemba matter dismissed plaintiffs claims, reasoning that California law does not allow an employee’s spouse to sue the employer for negligent COVID19 exposure, instead limiting damages to the workers’ compensation system.

Well, the plaintiffs in Kuciemba appealed, and oral arguments were held on March 10, 2022.  It appears that the 9th Circuit panel is considering a “wait-and-see” approach to hear from the California Supreme Court for guidance.

In other words, the issue of employer COVID19 liability to non-employees is not resolved or certain yet.  We should continue to monitor the situation, but your humble blogger respectfully submits that we, on the workers’ compensation side of things, should be making sure we don’t cut corners that might prejudice the civil side of things.   In other words, don’t let this picture be you!

As if we didn’t have enough to worry about when assessing a COVID19 workers’ comp case, but, to quote Mr. Hyman Roth, “this is the business we’ve chosen.”