The Washington Post: 771 lawsuits — and counting: Wave of virus litigation hits businesses across the U.S.
NEW YORK — Hundreds of lawsuits stemming from the coronavirus pandemic are rapidly amassing in state and federal courts, the first wave of litigation challenging decisions made early during the crisis by corporations, insurance companies and governments.
Claims have been filed against hospitals and senior-living facilities, airlines and cruise lines, fitness chains and the entertainment industry — 771 as of Friday, according to a database compiled by Hunton Andrews Kurth, an international law firm tracking cases that emerge from the pandemic. The volume and variety make painfully clear that, throughout the United States, the virus has caused widespread devastation and hardship, and that the full scope of its economic toll remains to be seen.
Complaints reach across industries and state lines. Some seek significant monetary damages. Others ask for a judge to correct actions alleged to be harmful or in violation of contractual agreements.
Leaders in Washington are contemplating action.
Here in New York, which remains the global pandemic’s epicenter, more than 250 lawsuits have been filed — the most of anywhere in the nation by far. Among them is a set of lawsuits brought by a nurse’s union against the state and two hospitals. (One since has been dismissed.) The union contends officials failed to appropriately protect hospital workers with sufficient personal protective equipment (PPE) and ensure a safe workspace for those at higher risk of contracting the illness. A similar suit was brought by a union representing state employees in Alaska.
Families who’ve lost loved ones at a senior-living residence in Atlanta have accused the facility of failing to protect its residents, alleging it allowed events and group meals to continue even as family visits were curtailed.
Jodi Gill, a criminal justice professor at Penn State University, is the named plaintiff in a class-action suit brought against Pennsylvania’s health department for what she says is its failure to properly monitor the state’s nursing homes, including the facility — Brighton Rehabilitation and Wellness Center in Beaver, Pa. — where her 81-year-old father lives. Nursing homes there have recorded 60 deaths due to the virus, according to state data.
Gill said that, apart from PPE shortages among staff, she was pressured into signing a release form so the facility could include her father in an experimental treatment study using hydroxychloroquine — the anti-malarial drug promoted by President Trump as a potential treatment for patients infected with covid-19. Last week, the Food and Drug Administration, citing reports of “serious heart rhythm problems” associated with the drug, cautioned against its use outside of a hospital or clinical trial.
“It’s my dad and it’s all the seniors on his floor that I take cookies to and hang out with,” Gill said in an interview. “And they deserve better. They all deserve better.”
Brighton declined to comment on the case but defended its efforts to combat the spread of the virus, noting increased training for staff and the elimination of group activities. A spokesman for the Pennsylvania Department of Health said a temporary manager was assigned to Brighton on April 15 to provide “support and oversight of operations at the facility.”
A devout man in Washington state, home to the country’s first confirmed case of the novel coronavirus, sued its governor for setting policies that prohibit the small weekly Bible study he hosts at his home. Other claims focus on voting rights and the potential expansion of absentee balloting. As it gets closer to the November general election, there are likely to be new petitions seeking judicial intervention, citing quandaries and concerns over access to the polls.
In California, customers have gone after a yoga studio and a massage parlor. A ski resort chain based in Denver also has been sued in the Golden State.
‘The new iceberg’
Lawyers there put out a call for potential clients in “essential” jobs — grocery store personnel, delivery drivers and bus operators — where the lack of personal protective equipment has been an issue. Kiley Grombacher, whose firm has sought class-action claims, said the response has been “unbelievable” and includes people “in almost all the major industries,” including transportation, retail and health care.
A number of class actions have been filed, including against Ticketmaster for its handling of canceled live events. One suit alleges the box office behemoth, and its parent company Live Nation, “sought to force their customers to bear the brunt of their own shortsightedness,” according to the complaint filed in U.S. District Court for the Northern District of Illinois.
According to that breach-of-contract lawsuit, Ticketmaster has withheld refunds from thousands of fans after events were postponed knowing that they could not “reasonably be rescheduled” for the foreseeable future. Ticketmaster and Live Nation, it says, “have sought to surreptitiously shift their losses onto their innocent customers, furthering the financial hardship endured by people across the country.” Neither company has filed a response in court yet, and a spokesperson declined to comment.
In response to calls on Capitol Hill for an investigation, Ticketmaster said last month that it had passed $2 billion on to event organizers in connection to 30,000 canceled or postponed events — “making it impossible to issue refunds to fans before recouping sales receipts from the organizers, as we’ve done in the past.” The letter, from the company’s president, Jared Smith, said Ticketmaster is working with vendors to refund customers.
Disrupted travel accounts for several claims. The nation’s major airlines — now on life support, dependent on billions in government relief funds — have been sued over policies preventing customers from obtaining cash refunds for travel that never transpired because of the pandemic.
Farah and Mohammed Toutounchian, of Los Angeles, were aboard the Diamond Princess cruise ship docked in Japan for weeks after excursions in and around China in late January and early February. The couple’s attorney, James Urbanic, said the crisis on board was badly mishandled. With passengers quarantined and illness spreading among the ship’s food service staff, meals brought to the couple’s cabin were uncovered and traveled through the boat’s contaminated passageways, Urbanic said.
The husband suffered from double pneumonia and still has trouble breathing. He and his wife have “extreme insomnia” from muscle aches and other ailments which have left them feeling “like they have aged about 10 years,” the lawyer said.
“Cruise ships have life rafts and life jackets, but illnesses kill more people on cruise ships than shipwrecks,” Urbanic said. “Cruise ships have not taken outbreaks seriously. The coronavirus really is the new iceberg.”
A spokesperson for Princess Cruises said it would not comment on pending litigation but defended the company’s handling of the outbreak.
“Our response throughout this process has focused on the well-being of our guests and crew within the parameters dictated to us by the government agencies involved and the evolving medical understanding of this new illness,” the statement said.
‘Trial lawyer bonanza’
Torsten Kracht, an attorney with Hunton Andrews Kurth, the law firm managing the “Covid-19 Complaint Tracker,” said that early on, many of the cases were filed on behalf of inmates seeking release from detention facilities. “We’re starting to see those cases plateau a little bit,” he said. Employment termination and wage-based claims are rising, as are wrongful-death claims, contract disputes and liabilities centered around “acts of God.”
Kracht said his team has begun to explore case law and how natural destructive acts — a legal concept known as force majeure — may intersect with pandemics. What they’ve found dates back to the late 1800s and early 1900s, and addresses polio and cholera outbreaks.
“It would be fair to say that it’s testing some areas of law that haven’t gotten a lot of attention in, in many cases, decades,” Kracht said. Because of the lack of legal precedent for catastrophic events matching the massive scale of the novel coronavirus, rulings that result from this first wave of cases are “going to be breaking some new ground,” he added. He also noted that any new standards to emerge will likely influence business deals for years to come, with contracts carrying force-majeure clauses that specifically address interruptions caused by pandemic.
“What we don’t know yet, because this is all so new, is what judges are going to do with those cases,” said Aaron Crowell, a New York attorney who handles civil matters and has taught legal practice at Columbia Law School. Crowell said a lot depends on whether judges will use “creativity and flexibility” to benefit plaintiffs, making the environment more friendly for those who would file claims. “If we see that, you’re going to see more cases.”
The future legal landscape surrounding issues to arise from this crisis may depend not just on judges but on lawmakers. Already, some states have imposed immunity measures for health-care institutions and nursing homes to protect them from liability as virus-related casualties and deaths mount. White House officials also have discussed how to impose liability shields for businesses — an issue likely to become a focus when Congress negotiates any future economic stimulus.
Senate Majority Leader Mitch McConnell (R-Ky.) has indicated he intends to address protections for businesses when the Senate reconvenes next week. “Our response,” McConnell said, “must not be slowed, weakened, or exploited to set up the biggest trial lawyer bonanza in history.”
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Texas ports are thriving, but in the early 2000s, abusive lawsuits threatened to shut them down. Read more about the common-sense reform that saved our state’s shipping industry in this week’s TLR blog, For the Record: https://bit.ly/3aeTy6n
