State Appeals Court Revives King County Lawsuit Over Boeing’s ‘Preconception’ Duty to Workers' Children
A ruling from the Washington State Court of Appeals has cleared the way for a King County family to sue The Boeing Company, holding that employers can be held liable for injuries to a worker’s not-yet-conceived child.
In a published opinion filed yesterday, Division I of the Court of Appeals answered two certified questions stemming from a King County Superior Court case, dealing a significant legal defeat to the aerospace giant.
The unanimous decision upholds an earlier ruling by King County Superior Court Judge Cindi Port, who denied Boeing’s motion to dismiss the lawsuit and allowed the novel legal questions to be sent to the appellate court for review.
The Origins of the Legal Battle
The lawsuit was brought by Teela and Thomas Bauer on behalf of their son, Milo. According to the complaint, Thomas has worked as an electrical installer at Boeing’s Everett manufacturing plant since 2011.
The Bauers allege that during his employment, Thomas was regularly exposed to a “mixture of chemicals,” including volatile organic solvents and heavy metals.
This exposure, the lawsuit claims, damaged his reproductive system and impaired the processes of conception.
Milo was conceived while Thomas worked at the Everett facility and was born in 2017 with severe, permanent birth defects, including congenital heart anomalies, spinal tethering, and a ventricular septal defect.
The complaint asserts that Boeing toxicologists and epidemiologists have known since the 1980s that paternal exposure to certain workplace chemicals could cause birth defects, yet the company allegedly failed to provide adequate warnings or safety measures.
The Foreseeability of Harm
Boeing urged the court to dismiss the claims, arguing that Washington law does not recognize a “preconception duty” in the employment context.
The company warned that allowing such claims would create an unpredictable “volume of potentially meritless litigation” and force employers to interrogate workers about their family planning.
Writing for the appellate panel, Judge Ian Birk rejected those arguments.
The court ruled that an employer’s duty of care is not strictly bound by the timeline of conception, but rather by the legal concept of foreseeability.
Drawing parallels to “take-home” asbestos cases—where employers have been held liable for exposing a worker’s family members to toxic dust—the court found that it is entirely foreseeable that an employee might conceive a child who could be harmed by workplace hazards.
“If Boeing’s conduct involves an unreasonable risk of injury to workers’ children, the timeline bears little import to the existence of a duty,” Judge Birk wrote.
The panel noted that public policy strongly favors protecting workers from hazardous exposures, emphasizing that employers need only “fully inform” their employees of the risks and exercise reasonable care to avoid liability.
Separate and Distinct Injuries
The second major hurdle in the case involved the Washington Industrial Insurance Act (IIA), which generally provides employers with immunity from civil lawsuits over workplace injuries in exchange for the no-fault workers’ compensation system.
Boeing argued that because Milo’s injuries were a direct result of Thomas’s occupational disease, the child’s claims were derivative of the workplace injury and should be entirely barred by the IIA.
The Court of Appeals disagreed, relying on prior state Supreme Court precedent regarding in utero injuries.
While acknowledging that Milo’s birth defects were causally connected to Thomas’s reproductive damage, the court determined that the two suffered “separate and distinct injuries.”
“Milo’s injuries are personal to him, they are not derivative of Thomas’s,” the court concluded. Therefore, the IIA’s exclusivity provision does not shield Boeing from the child’s lawsuit.
The decision affirms King County Judge Cindi Port’s refusal to dismiss the case, meaning the Bauers’ negligence lawsuit against Boeing can now proceed toward trial.
How interesting! I didn't know about this case. It clearly identifies an unborn person as an individual with rights and value.