Business defense attorneys warn that dearth of Covid exposure lawsuits no barometer for what’s coming

By W.J. Kennedy

Some prominent business defense lawyers, reacting to a recent Wall Street Journal (WSJ) report about the relatively paltry number of Covid-19 exposure lawsuits to date, say we are merely at the starting gate for virus-related injury claims.

“One has to keep in mind that the lawsuit numbers reflect a time when many large entertainment, sports, food, schools, offices, and other venues are closed or have significantly reduced their operations,” Cary Silverman, partner at Shook, Hardy & Bacon, told Legal Newsline in an email. “This limits the potential for an outbreak that plaintiffs’ lawyers are most likely to take advantage of, even when the business responsibly did its best to follow public health guidance.”

He added that the relatively low number of cases, outside contracts, insurance and employment affected by the pandemic, offers little reassurance for businesses as they hope to open in 2021.

“There have been hundreds of exposure claims against nursing homes, and scores against meat processing, shipping companies, and others in addition to the early cruise ship cases – which illustrates the chance of lawsuits, particularly when there are people living, working, or visiting in confined spaces,” he said.

The WSJ reported that plaintiffs’ lawyers are finding it more difficult than expected to hold businesses accountable for Covid infections.

“Holding a business liable for a Covid-19 injury or death requires more than just evidence that it exposed someone to the disease or failed to take property precautions,” the report said.

In addition, plaintiffs bear the burden of proving causation – that they were infected because a particular business failed to take the necessary precautions.

The sentiment that a business’s customers are the ones responsible for their infections could change, warned Shook’s Victor Schwartz, who co-chairs the firm’s Public Policy Practice Group,

“Juries (when they return) will not necessarily be sympathetic to plaintiffs who incurred a Covid risk in non-mandatory employment situations,” Schwartz wrote in an email. “The organized plaintiffs’ bar is likely to fuel stories to counter that belief.”

The WSJ report did note that a rush of lawsuits could be filed closer to the end of the statute of limitations for Covid injury suits – two to five years in general.

Curt Schroder, Executive Director, PA Coalition for Civil Justice Reform, noting that the pandemic has only been with us for less than a year, agreed that it is too early to “arrive at conclusions about the number of lawsuits.”

“Cases take time to develop and it is not surprising that there have been few cases filed to date,” he said.

But he noted that “plaintiffs’ law firms are staffing up in preparation for bringing vaccine related lawsuits. The very cure for the pandemic will end up being a significant area of litigation if plaintiffs’ attorneys have their way.”