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'Ignore The Man Behind The Curtain' Won't Fly In COVID Suit

By Rachel Stone · April 2, 2021, 6:02 PM EDT

A woman looking to hold her husband's employer responsible for her COVID-19 infection shouldn't be allowed to change her claims in a way that essentially asks the court to "ignore the man behind the curtain" like in "The Wizard of Oz," the company told a California federal court.

In a dismissal motion filed Thursday, Victory Woodworks Inc. alleged Corby and Robert Kuciembas' revised complaint improperly contradicted the original complaint's allegations in order to avoid falling into the trap of the workers' compensation exclusive remedy. That remedy specifies that workers' compensation is the only benefit available to workers injured on the job as well as those injured as a result of the employee.

"Like Dorothy in 'The Wizard of Oz' who was commanded to ignore the man behind the curtain, we are asked to ignore [the Kuciembas'] original complaint," Victory Woodworks said.

According to Victory Woodworks, the Kuciembas' amended complaint was designed to evade the workers' compensation carveout that doomed their original complaint. In the amended filing, they suggested Mr. Kuciemba was possibly asymptomatic, nixing mention of his symptoms and hospitalization, and emphasizing his clothing as a potential route of transmission.

But they "cannot pretend that by filing an amended complaint they are writing on a clean slate," Victory Woodworks told the court.

Moreover, if these new claims suggesting an "entirely new theory of transmission" are still predicated on Mr. Kuciemba becoming infected at work, the claims should still be encompassed within the workers' compensation exclusive remedy, Victory Woodworks said.

The motion also slams the Kuciembas' attempts to make brand new allegations, and alleges this claim undermines their entire attempt to hold Mr. Kuciemba's workplace liable.

"If the means for COVID to enter the jobsite was the clothing of workers rather than the workers themselves, then no screening device or protective equipment would permit the employer to effectively prevent the virus from entering the project," which would mean the workplace didn't violate any health rules, Victory Woodworks said.

And despite the couple's argument likening this case to California supreme court case Kesner v. Superior Court, which established that companies have a duty to protect workers from exposing members of their household to asbestos, Victory Woodworks argued that an airborne virus is an entirely different problem.

Short of enclosing workers in an NBA-style bubble, workplaces cannot shield their employees from contracting COVID-19 and taking it home in the same way workplaces can inoculate themselves against asbestos exposure, Victory Woodworks said.

Allowing this theory of liability to expand in this way means that "there is no limit to how wide the net is cast," the company claimed, arguing that this Rube Goldberg machine-like expansion of holding workplaces responsible would create a situation in which "an individual's recovery could drastically affect California's financial recovery at large as the economy attempts to stagger back from the pandemic."

Victory Woodworks' counsel William Bogdan told Law360 Friday that he doesn't believe the court will "accept the premise of this argument," and will dismiss this time without leave to amend.

"I don't think any science out there could ever distinguish whether [the virus] was transmitted from clothing or from getting the virus from Mr. Kuciemba himself," he said.

Though he acknowledged that the Ninth Circuit's stance on whether a party could bring forth a new claim in an amended complaint was "not as definite on that issue as [he] had hoped," he noted that there was precedent that limits the ability of a party to "run hot and cold" on an argument in the way the couple tried to do.

The Kuciembas' counsel Mark Venardi told Law360 in a statement Friday that his team disagreed with the court's decision to toss the original complaint, "and believe that the court erroneously granted the motion to dismiss based upon workers' compensation exclusive remedy principles. Our client was not employed by the defendant and therefore has no workers' compensation remedy for her injuries," he said.

"If the court rules against Ms. Kuciemba again it would mean that she has no remedy at all, even though she was on her deathbed, because a corporation willfully violated mandated health orders and chose profits over safety," the statement continued.

The Kuciembas first brought their case in California superior court in October 2020. It was removed to federal court in December 2020, then dismissed in February 2021, court records show.

Victory is represented by William Bogdan of Hinshaw & Culbertson LLP.

The Kuciembas are represented by Mark L. Venardi, Martin Zurada and Mark Freeman of Venardi Zurada LLP.

The case is Kuciemba et al. v. Victory Woodworks Inc., case number 3:20-cv-09355, in the U.S. District Court for the Northern District of California.

--Editing by Leah Bennett.

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