By: Angelique Bouzalakos
On February 16, 2024, a Washington state judge refused to give Boeing a “free pass” in a lawsuit over alleged birth defects caused by exposure to toxic chemicals in the workplace.[1] The Judge is set to review whether Boeing had a duty to its employees future children “based on foreseeable harm.”[2] The Judge expressed his skepticism at “the Boeing Co.’s assertion that Washington courts have never recognized employers as owing a duty of care to workers’ unconceived children.”[3] The Judge asserted that if what the plaintiffs allege is true, and Boeing knew about the toxic chemical and its potential to cause birth defects, then they should not get a “free pass.”[4]
BACKGROUND
In 1980, one of the top doctors at Boeing, Dr. Barry Dunphy, attempted to alert the company to a potentially fatal problem.[5] The doctor found that during the normal course of their employment, “tens of thousands” of workers were being exposed to hazardous amounts of toxic chemicals.[6] Among his findings, Dr. Dunphy wrote that these toxic chemicals “may result in future ‘outbreaks’ of serious illness – including sterility, fetal abnormalities, stillbirth, life-long chronic illness, cancer and death.”[7] The doctor’s notes indicated that Boeing’s President Malcolm Stamper was neither sympathetic nor happy to hear the news.[8] These notes are now being reviewed, among other documents, as evidence in a number of lawsuits all alleging that the doctor’s warnings indeed came true.[9]
Three families, whose children all suffer from some kind of ailment (e.g., heart conditions, neurological conditions, genetic disorders), sued Boeing, alleging that Boeing failed to protect them from these toxic chemicals, and as a result, caused birth defects in their children.[10] It is noted that Dr. Dunphy’s warning “is one of the earliest documents showing some company experts have long suspected the toxins… pose risks not just to workers, but their unborn children too.”[11] Among the toxins, some are heavy metals (e.g., cadmium, lead, and chromium), and some are solvents (e.g., toluene, xylene, petroleum distillates, etc.).[12] Some of these chemicals that the lawsuits identify are still used and present at the Boeing plant where the plaintiffs worked.[13]
Lead plaintiff’s attorney Michael Connett of Waters Kraus & Paul argues that workers are still at risk because Boeing has failed to “communicate the hazards and adequately enforce safety rules.”[14] Over 40 years ago, Dr. Dunphy insisted the company would face serious consequences due to their “impotent occupational health program” and sorely needed an “effective Industrial Hygiene program.”[15]
The company maintained that there is “mixed scientific evidence” to support the connection between the chemicals and the birth defects, and that it is entirely dependent upon the “chemical, the manner of exposure and the dose.”[16] According to representatives, the company maintains a list of “chemicals of concern” for “reproductive toxicity,” which the depositions show, and illustrate the company has been keeping track of this risk for many years.[17] Although the company “instituted monitoring programs to ensure worker exposure levels were below regulatory maximums,” it is unclear whether workers are truly aware of their exposure risk.[18] In 2021, toxicologists at Boeing did an analysis of more than 100 chemical information sheets, and added the line “may be toxic to reproduction” in their database entry.[19] Connett said that employees are used to taking some risks, but that they are “consistently not prepared to also risk their children.”[20]
Boeing’s attorneys assert that Washington courts “have recognized a preconception of duty of care only in healthcare cases.”[21] However, Washington state Judge Dixon questioned Boeing’s attorneys on why it would not also apply in the employment setting and insisted that an alleged birth defect risk is not “distinguishable from any other kind of physical, on-the-job risk that employers are obligated to warn their workers about.”[22] As the Judge opined, Boeing could have just “post[ed] a sign or something” about the warnings and health dangers of the chemicals.[23]
At the close of the hearing, the Judge told the parties he would be conducting a more thorough review of the case law before issuing any decisions on Boeing’s motion to dismiss.[24]
[1] Rachel Riley, Judge Wary of Boeing’s Bid to Duck Birth Defect Suit, LAW360(Feb. 16, 2024, 7:50 PM), https://plus.lexis.com/newsstand/law360-us/article/1803971.
[2] Id.
[3] Id.
[4] Id.
[5] Rachel Riley, Secret Files Reveal Boeing Doctor Warned of Toxic Risks, Birth Defects, THE COLUMBIAN (Nov. 28, 2022, 6:01 AM), https://www.columbian.com/news/2022/nov/28/secret-files-reveal-boeing-doctor-warned-of-toxic-risks-birth-defects/.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Riley, supra note 5.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Riley, supra note 5.
[17] Id.
[18] Id.
[19] Id.
[20] Jake Goldstein-Street, At Boeing’s Everett Plant, New Lawsuits Allege Further Birth Defects, HERALDNET (Sep. 29, 2023 5:08 PM), https://www.heraldnet.com/news/at-boeings-everett-plant-new-lawsuits-allege-further-birth-defects/.
[21] Riley, supra note 1.
[22] Id.
[23] Id.
[24] Id.
The L•E•Jer 