The preconception tort is essentially any tortious conduct occurring prior to a child’s conception that results in harm to the child. This type of claim, which has been recognized in California since 1982, can cover all types of prenatal injuries, including injuries resulting from receiving damaged genes from a parent. While traditionally only allowed in very narrow circumstances, or, as one court found, where a “defendant’s conduct was inextricably related to the inevitable future pregnancy,” the Sixth District of the California Court of Appeal recently employed a broader balancing test in holding that an employer does not owe a legal duty of care to the subsequently conceived child of an employee. (See Waleed Elsheref, et al, v. Applied Materials, Inc. (1/27/14) App.Ct of CA, Sixth Dist., H038333.)
In Elsheref, the plaintiffs, the wife and infant son of the employee, sued the employer, Applied Materials, Inc. (AMI), alleging various negligence and strict liability claims based upon the “preconception” tort. AMI is a manufacturer of semiconductors and other advanced electronics. The plaintiffs alleged that the father’s exposure to mercury and other chemicals he worked with as part of the manufacturing process caused his son to be born with multiple birth defects. The subsequent appeal arose from the trial court’s dismissal of the plaintiffs’ claims after finding that AMI had no duty to the plaintiffs as a matter of law.
On appeal, AMI contended that California has a bright-line rule limiting the duty in preconception claims to providers of service or products directly related to conception or pregnancy, e.g., medical service providers or manufacturers of products related to pregnancy and conception. The appellate court rejected this contention, concluding that duty is to be determined on a case-by-case basis through the application of the so-called “Rowland factors” test. Under this test, the court is asked to balance multiple factors, including the foreseeability of the harm, the closeness of connection between the defendant’s conduct and the injury, and public policy considerations, such as preventing future harm and the extent of the burden to defendants.
Ultimately, the appellate court found that the public policy factors weighed against imposing a duty upon AMI. The court also rejected the plaintiffs’ contention that AMI’s provision of medical services to its employee -- medical monitoring and other workplace-safety compliance-type services mandated by OSHA -- was a special relationship that could give rise to a duty to the plaintiffs.
The Elsheref decision did not completely eliminate the plaintiffs’ claims, as the court also concluded that duty was not an essential element to the son’s causes of action based on strict product liability. The issue of whether the plaintiff was injured by any product manufactured or distributed by AMI, rather than from the manufacturing process itself, will be determined on remand.