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THE COVID-19 LITIGATION SURGE & RESPONSE

As the pandemic reached the United States, entrepreneurial personal injury lawyers saw the opportunity to bring a wide range of lawsuits.

Early on, a coalition of national law firms specializing in mass tort litigation formed a “Coronavirus Litigation Task Force” to identify targets and theories for litigation. Law firm web- sites sprung up, inviting people to blame their illness or family member’s death on someone rather than on the virus. Some websites provide a roadmap for suing for contracting COVID-19 at work. Others attempt to prompt lawsuits against nursing homes or others. One website, “Top Class Actions,” uses that familiar language often heard on billboards and late-night TV ads: “If you believe that your rights were violated by a company as a result of the coronavirus pandemic, you may be entitled to compensation.” More of these types of advertisements for COVID-19 lawsuits are expected in months ahead.

THE SURGE OF COVID-19 LAWSUITS

Thousands of COVID-19 related lawsuits have already been filed. Many lawsuits stem from weddings, vacations, and other events cancelled in the wake of the pandemic, colleges and other schools that moved from in-person to virtual programming, and disputes over whether insurance policies cover lost income stemming from the need to shut down during a pandemic. The pandemic and economic downturn also has predictably resulted in a surge of employment litigation. Of particular concern is a growing number of lawsuits that seek to make businesses and others pay for a person’s exposure to COVID-19. These types of lawsuits pose a threat to restarting the economy. A single unwarranted lawsuit could cause a small business that is already on the brink to fold.

Thus far, COVID-19 exposure lawsuits have primarily targeted those that have experienced outbreaks, such as cruise ships (including those who did not become ill) and nursing homes. Lawsuits filed by employees of retailers, meat processing plants, supermarkets, and healthcare providers are also mounting. In addition, some plaintiffs’ lawyers have filed class actions alleging that business’s operation – a fast-food restaurant, golf course, office building, or shipping facility – poses a risk of transmitting COVID-19 and is a public nuisance. As doors open and operations move back toward “normal,” more lawsuits are likely to target schools, daycare centers, offices, stores, factories, and others.

Plaintiffs’ lawyers counter that showing that a specific business’s operations caused a person to contract COVID-19 will be very difficult to prove. That is true, but it disregards the real world of litigation. First, plain- tiffs’ lawyers look for clusters of cases so that juries will presume causation based on an outbreak, regardless of whether the defendant is truly at fault. Second, as seen in many other types of litigation, businesses and their insurers are likely to settle claims regardless of the merits. They make a judgment that paying up early can be far less expensive, intrusive, and risky than prolonged litigation. A minuscule percentage of cases actually reach a jury. Third, some plaintiffs’ lawyers bring creative claims that avoid the need to prove that a defendant’s actions caused a specific person to contract COVID-19. For example, they seek damages for emotional harm or financial loss merely from exposure to the virus, or assert a public nuisance claim.

WHAT IS A BUSINESS, SCHOOL, OR OTHER ENTITY EXPECTED TO DO TO GUARD AGAINST COVID-19 EXPOSURE?

Cases alleging that a person was exposed to COVID-19 at a business, school, or other property should not be treated in the same manner as an ordinary slip-and-fall lawsuit. Business owners understand their duty to put up a caution sign when there is a wet floor. Supermarkets know they have a duty to regularly monitor the aisles for spills and broken products and promptly clean them up. How a reasonable business owner would protect others from COVID-19 is far less clear, particularly when knowledge of the virus and how it is transmitted is continually developing and changing.

What was considered responsible behavior three weeks ago, may not be considered responsible today. Did a business fulfill its duty if it required all employees and visitors to wear masks on June 1, but not on May 1 when a person alleges exposure to COVID? Should a daycare center or school have performed temperature checks and asked about a family’s health back in May despite having privacy concerns? Should a restaurant have limited occupancy to half of the permissible level – why not to one quarter, or why not close entirely? These cases, litigated years later, will be viewed in hindsight, rather than under the constantly developing knowledge and evolving guidance that we live with today.

Meanwhile, many businesses have stepped up to provide critical goods, services, and facilities to aid in the response to the pandemic. Businesses are converting plants from making automobiles and aircraft parts to making face masks, gowns, ventilators and other needed items. Breweries and distilleries are producing hand sanitizer. When companies quickly ramp up production or manufacture products they do not ordinarily make, they place themselves at risk of liability if there is an issue with the product’s manufacturing, design, instructions, or warnings.

Healthcare providers are also, of course, very concerned about heightened exposure to medical malpractice lawsuits, particularly when they are providing care in an unprecedented environment with shortages of people, equipment, and supplies.

THE FIRST COURT RULINGS

Early indications provide hope that judges will properly apply legal principles to dismiss unwarranted COVID-19 lawsuits.

In May, a federal court in Missouri dismissed a lawsuit alleging that a meat processing company had cre- ated a public nuisance and breached its duty to provide a safe workplace during the pandemic. U.S. District Court Judge Greg Kays found that the company had significantly altered its operations to reduce the risk of transmission of the virus. OSHA and the USDA, not the courts, Judge Kay ruled, were the place to bring con- cerns over whether more was needed to comply with public health guidance the agencies had issued for meat processing plants. The court also found claiming that “potentially contracting COVID-19” is too speculative of an injury for a lawsuit.

The first rulings in lawsuits against cruise lines indicate that plaintiffs have an uphill battle to show that they contracted COVID-19 aboard the ship, but that they may nevertheless continue the litigation and press for settlements. U.S. District Judge R. Gary Klausner of the Central District of California dismissed 13 early “fear of” COVID lawsuits brought on behalf of cruise ship passengers in July, warning that allowing such cases to proceed would “lead to a flood of trivial suits” and “open the door to unlimited and unpredictable liability.” In August, a second federal judge in same court threw out emotional distress claims brought by a couple diag- nosed with COVID-19 following a cruise, but whose symptoms were not indicated. In that case, Judge Dean Pregerson observed, “it strikes me that it may be unclear in the complaint that there’s any injury.” Since that time, Judge Klausner has continued to dismiss negligence claims brought by passengers due to their failure to adequately link the cruise to their diagnoses. He allowed claims alleging intentional infliction of emotional distress to proceed, but ruled that the passengers’ contract with the cruise line did not allow them to do so through a class action. Both judges gave the plaintiffs an opportunity to amend their negligence claims and try again, and that litigation continues.

A federal judge in New York also dismissed a public nuisance claim brought against Amazon, claiming the company was not doing enough to protect workers at a Staten Island warehouse from COVID-19. Judge Brian Cogan ruled that it is Occupational Safety and Health Administration’s role, not the courts, to determine what are sufficient workplace protections. However, even if it was the court’s place to decide the issue, Judge Coganfound in a November 2020 ruling that the plaintiffs lacked a viable public nuisance claim. The risk of contracting COVID-19 is common to all New York City residents, and they were attempting to sue over a future harm.

Most courts that have ruled on insurance disputes thus far have found that business interruption policies cover losses of income following physical, structural damage to a specific property, not a pandemic that affects everyone. When considering a claim brought by a magazine publisher that suspended its operations, for example, U.S. District Judge Valerie Caproni of the Southern District of New York observed, “[The virus] damages lungs. It doesn’t damage printing presses.” While Judge Caproni indicated that she felt bad for every small business that has experienced losses due to the pandemic and gave the plaintiffs’ lawyers an “A for effort” and a “gold star for creativity,” she refused to require insurers to cover losses that were not covered by the policy. A few courts, however, have allowed these lawsuits to proceed, giving plaintiffs’ attorneys hope. Some observe that the tide could change. The chance of success in each case may depend on the contract language and exclusions in the specific policy at issue.

Federal judges in California have also dismissed the first lawsuits to reach rulings on airfare refunds. Those cases tried to impose liability based on airlines taking more than seven days to issue a refund of a flight canceled due to the pandemic. That seven-day period, however, does not appear in the airlines’ contracts with passengers, but is the Department of Transportation’s interpretation of a prompt refund, which even DOT recognizes may not always be attained by an airline that is operating in good faith. Those “slow refund” claims are likely to be dismissed, and cases involving passengers who never cancelled reservations or requested refunds will also face challenges.

Meanwhile, judges have allowed class actions against colleges and universities to go forward. As a federal district court judge in Florida observed, “like the ripple in a pond after one throws a stone, the legal system is now feeling COVID-19’s havoc with the current wave of class action lawsuits that seek tuition reimbursement related to forced online tutelage.”

Plaintiffs’ lawyers will likely become more sophisticated in crafting complaints and pursing COVID-19 litigation. For instance, one personal injury lawyer predicted that as exposure cases progress, plaintiffs’ lawyers will hire experts to back their claims that their clients contracted the virus at a particular defendant’s location. And, in Judicial Hellholes where state law may be more open to no-injury lawsuits and novel legal theories, judges are likely to provide plaintiffs with every opportunity to amend and refine their complaint, and subject a defendant to intrusive discovery and expensive litigation until they settle. For example, in June, a Cook County Circuit Court judge refused to dismiss a class action against McDonalds alleging that the restaurant chain’s operation created a public nuisance by not adequately protecting its employees from the virus.

STATE LEGISLATURES ARE RESPONDING

Even with the pandemic effectively shutting down many state legislatures and the virus arriving as legislative sessions concluded, twenty-one states and the District of Columbia enacted laws addressing liability concerns stemming from the pandemic. Legislators understand that their constituents overwhelmingly believe that the pandemic is not the time for lawsuits and that those who are providing healthcare and products to help in the COVID-19 response should not operate in fear of liability.

Fourteen of these states have provided assurance to responsible businesses that operating during the pandemic will not result in a lawsuit blaming them if a person visits their business and becomes ill, including Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming. Two additional states – Alabama and Arkansas – took similar action through executive orders. These states have taken one of three approaches. Some states have raised the standard for liability from bare negligence, which allows for speculative claims, to requiring a showing that a business, school, or other entity recklessly disregarded a known risk that a person would be exposed to COVID-19 or were grossly negligent in their operation. Other states have provided a safe harbor from liability when a business or other entity operated in compliance with executive orders and public health guidance. Several states have adopted a hybrid of both approaches.

Ten states limited the risk of liability for those who make, sell, or donate personal protective equipment   or other products in response to the pandemic. These states include Alaska, Georgia, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, and Wisconsin.

Nearly all of these states have provided assurance to doctors, nurses, hospitals, and other healthcare providers that they won’t be hit with COVID-19 lawsuits. These laws generally hold healthcare providers accountable for grossly negligent conduct when medical care is compromised due to the pandemic. In addition, Governors in at least nineteen states have also addressed COVID-19 liability concerns, primarily for healthcare providers, through executive orders. These include governors in states that traditionally are not known for sup- porting legal reform, such as New York, New Jersey, and Pennsylvania.

The enacted COVID-19 liability legislation varies significantly from state to state. For example, a unique provision in Iowa’s law does not permit lawyers to sue on behalf of people who allege no more than exposure, emotional harm, or the flu-like symptoms that millions of Americans are likely to experience. Louisiana enacted a law specifically for restaurants that follow COVID-19 proclamations and procedures. The North Carolina law shields volunteer organizations that offer their facilities in support of the state’s response to the pandemic. A Georgia law presumes that a person assumed the risk of exposure when he or she attends an event or other public gathering and the ticket, receipt, wristband, or a sign at the entrance warns of this inherent risk.

THE FUTURE – OPERATING IN THE MIDST OF A PANDEMIC

Even if a vaccine is on the horizon, businesses, schools, and others will continue to operate in a pandemic environment for some time. As state legislative sessions begin in 2021, legislators should adopt a balanced approach that protects businesses from unwarranted and excessive liability, encourages businesses to follow best practices for reopening and operating during these uncertain times, and holds those who act recklessly or engage in misconduct responsible for causing harm.

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