Boeing argues court should not recognize duty to not-yet-conceived children; family says company knew chemical risks

A three-judge panel heard oral argument in Teela Bauer v. The Boeing Company over whether an employer can owe a tort duty to a person who did not exist at the time of alleged workplace exposure.

Linda Coberly, counsel for Boeing, told the court that “an employer obviously owes a duty of care to its employees,” but argued that the case turns on whether that duty should extend to a third party who was never an employee and “did not exist at the time of the relevant events.” Coberly urged the panel not to expand Washington law beyond contexts where courts have previously recognized preconception duties in reproductive-health settings.

Opposing counsel Michael Gurian, for the Bauer family, said the complaint pleads decades of industry and Boeing-specific knowledge about chemicals linked to birth defects and that those allegations make the risk foreseeable. Gurian argued that the factual allegations about chemical use at Boeing facilities, including Everett, and internal awareness by company leadership supported recognizing a duty in this case.

Much of the argument focused on precedent and the proper legal test. A panel member asked whether Boeing was asking the court to follow El Sharaf and pressed counsel about California cases such as O'Done and Kesner. Coberly acknowledged differences among jurisdictions and emphasized her view that Harbison and related Washington decisions on preconception duties arose in the reproductive-health context and should not automatically be extended to the employment setting.

Counsel and the panel also debated the role of foreseeability and whether duty questions should be determined broadly as a matter of law or left to the factfinder based on evidence (for instance, whether a reasonable employer knew or should have known about reproductive hazards). Gurian pointed to allegations that Boeing had awareness of risks going back to the 1970s and 1980s and argued those allegations would permit a ruling that a duty exists given the specific facts pled.

The parties disputed whether the case is primarily a failure-to-act (nonfeasance) workplace negligence claim or whether product-liability and affirmative-misconduct analogies matter. Boeing stressed that the complaint repeatedly pleads failures to act by an employer and noted possible defenses such as federal preemption if product-design allegations were implicated; plaintiffs said product remedies elsewhere do not deprive Milo of a tort remedy against Boeing for the workplace conduct alleged.

Throughout the argument the panel probed policy consequences, asking whether recognizing such a duty would unduly expand employer obligations and create incentives for employers to inquire into employees’ reproductive choices. Counsel for the Bauer family responded that recognizing a duty in the limited circumstances pled would not absolve corporate responsibility and that Milo has suffered severe injuries allegedly linked to the exposures.

The court thanked counsel at the conclusion of argument and moved on to the next case on the docket; no opinion or ruling was announced from the bench.