Trial lawyer greed in time of need

By Victor Schwartz

Many trial lawyers, like most people, are doing everything they can to abate the coronavirus. Others, however, appear to see this pandemic as a major business opportunity. As with other types of litigation, their goal is to find a way to externalize responsibility for someone’s disease upon a solvent and ideally “deep-pocketed” business or industry.

When this pandemic runs its course, litigation will likely follow. How much it spreads, much like the coronavirus, remains to be seen. Lawsuits, however, will likely take many forms. They will range from individuals suing thoughtless neighbors who sneezed in public while exhibiting symptoms, to actions against large entities who said or did virtually anything that facilitated the virus’s spread. It is only a matter of time until we see daily trial lawyer advertisements asking, “Have you or a loved one been harmed by the coronavirus?”

Manufacturers of protective equipment could be another litigation target. Lawmakers have already seen this coming with respect to the manufacturers of N95 respirators and other respiratory devices. One little noticed provision in the CARES Act, the federal government’s $2.2 trillion stimulus package, is a liability protection for respiratory devices approved by the National Institute for Occupational Safety and Health. Even so, the public’s rush to obtain masks and other protective gear, even gear not advertised to safeguard against the coronavirus, leaves many manufacturers vulnerable to lawsuits.

Owners of cruise ships have already been sued. The allegation there is that they did not do enough to protect passengers. Similar theories can be deployed against any business where people still gather and become exposed to the coronavirus — for example, drug stores and supermarkets. Walmart, for instance, has already been targeted. Although it is not easy for a person to prove he or she “caught” the virus in such a place, one need only convince a jury sympathetic to the widespread harm of this pandemic. Lawyers may also put forth experts who advance highly attenuated causation theories, which some judges may entertain in this unusual situation of a global pandemic.

So what can and should be done to stop an onslaught of unsound coronavirus litigation? First, the public should be made aware of the havoc such litigation could sow in exacerbating already challenging and uncertain economic times. Simple exposure of abusive lawsuits could prevent their spread.

Second, federal and state lawmakers should establish enhanced liability protections for affected front-line industries — for example, medical facilities, pharmaceutical suppliers, and other manufacturers and providers of lifesaving products and services. Broader general immunity for businesses that have not acted recklessly or intentionally to infect patrons should also be considered.

This pandemic has already caused enormous devastation. No one should be allowed to exploit it by using litigation to cash in on a crisis, inflict greater economic harm, and slow our nation’s path to economic recovery.

Victor Schwartz is an attorney in Washington, D.C., and co-author of the most widely used torts casebook in the United States.