We are in a brave new world, as you know. Criminal attorneys, both plaintiffs and defense counsel, predict an onslaught of cases. Some of these cases will be uncontroversial applications of the Tort Doctrine to the new circumstances created by COVID-19. Other cases will push the boundaries of tort law, which requires the triad of misconduct, causation and compensation for liability. Certainly, conventional lawsuits should follow their legal process, but unconventional lawsuits should be discouraged by the courts or prohibited by law. Here is a brief (and most importantly, incomplete) overview:
NEW YORK, NY – APRIL 14: A retail store will remain closed in the Brooklyn neighborhood of New on April 14, 2020 … [+]
- They mistakenly exposed me / my loved ones to COVID-19 and we / they got infected / got sick / died.
Such lawsuits have been filed against cruise lines, nursing homes and entertainment venues. Sometimes, but not always, it is easy to identify negligence (e.g., when COVID has been publicly announced; when most others in the same industry have taken preventive measures that the defendant did not, etc.). Sometimes, but not always, it’s easy to pinpoint a cause (for example, some infected with the virus were in very closed places like nursing homes or cruise ships, and given our knowledge of incubation periods, it’s reasonable to conclude that they caught the coronavirus in this location). Sometimes, but not always, it is easy to determine damage (it is easy when a previously healthy person becomes ill with coronavirus and dies; it is not so easy when the plaintiff has never developed symptoms but complains of “fear of coronavirus” …).
If there is little evidence of negligence (e.g. if a factory created social segregation and redeveloped equipment after the pandemic was announced), defendants should receive a summary judgment. Even if there is negligence in a particular case, it can be difficult to prove the cause: Perhaps the pump should have been santed more often, but how can Mr. Smith prove that he was likely infected with coronavirus on that pump? Conversely, the cause can easily be proven (e.g. prisoners with coronavirus clearly contracted the disease in prisons), but there cannot be negligence (for example, if it was simply not possible to operate the prison in any other way).
- They coughed / spat on me on purpose to spread the disease.
This is the battery’s willful act. Such batteries were rare, but they did occur. Batteries are both pies and crimes. If the victim is tested quickly and is positive for coronavirus, a cause can be inferred.
- My business was closed by the government or (prudently) me because of the pandemic and you refused to pay me despite the business interruption insurance I got with your company.
When business interruption insurance does not include a pandemic or government-ordered state of emergency exclusion, it becomes a more conventional lawsuit. The problem is that business interruption insurance usually excludes cover for communicable diseases such as the coronavirus and often excludes them for state emergencies. [This is because mass damages are hard to re-insure. It is for similar reasons that homeowners’ insurance typically excludes damage from floods, which may affect all homes in given area.] Pressure is currently being exerted on the federal and state governments to force insurers to pay out claims for business interruption regardless of the contract language. Restricted to take-out and delivery services under state law, the restaurant industry may lose $ 225 billion in revenue in the next three months. Who should pay for this loss, entrepreneur or government or insurer? A coalition of famous chefs (including Wolfgang Puck, Daniel Boulud and Jean-Georges Vongerichten) has founded the Business Interruption Group. BIG has apparently campaigned for President Trump to punish insurers or subsidize them to pay out despite their contract. In any case, restaurateurs have already filed a significant number of lawsuits.
A bill drafted in New Jersey could challenge certain insurers for business interruption losses due to the COVID-19 outbreak, regardless of exclusions their insurance policies may have. According to the contractual clause, such a law may have serious constitutional deficiencies, unless it only applies to contracts concluded after the bill has been adopted.
- You or your products saved me badly. I got infected with the coronavirus in your doctor’s office or in your hospital. Alternatively, the mask or gloves you made didn’t protect me. Alternatively, the anti-COVID-19 vaccine (once developed) didn’t work for me.
The legal problems with such lawsuits are numerous. Determining negligence will be difficult: What did the doctor or the hospital do wrong with hindsight (20/20 in hindsight)? How and at what price could the mask or gloves have been made “perfect”? It will also be difficult to determine the cause: how do we know the victim caught the coronavirus in the doctor’s office or when he was using the supposedly porous mask? The difficulty of such lawsuits, coupled with the downside of “American rule” (which forces defendants who are sued to pay their own legal fees even if found not liable, and which therefore results in defendants who have done absolutely nothing wrong) to regulate) is a very good argument in favor of adopting COVID-19 immunity laws in favor of rescuers and vaccine manufacturers. Liability should be limited to the (very rare) cases where a manufacturing defect causes damage (for example, when a batch of vaccine has been contaminated with a foreign substance that caused “signature damage” to the person receiving the contaminated batch).
Doctors who prescribe drugs that the FDA has approved for other uses to COVID-19 patients should also be shielded from liability by law if those drugs don’t work, as long as the scientific literature supports their use for that purpose. “Off-label prescriptions,” as they are called, are so common that virtually any drug is used off-label under certain circumstances. In many cases, for example, it would be negligent not to prescribe hydroxychloroquine to COVID-19 patients.
On March 27, President Trump signed HR 748, the Coronavirus Aid, Relief and Economic Security Act (CARES). This law contains a so-called “Good Samaritan” language, which provides federal protection against the liability of voluntary medical professionals during the COVID-19 emergency response (see Section 3215). This is a welcome development in my opinion.
- I am depressed from unemployment; or my pension fund has declined due to the closure of the stock exchange.
These troubling cases are often harm without wrongdoing. Governments dictated the shutdown of many industries, and whether or not you think their policy choice was the right one was certainly sensible. Likewise, traders certainly have the right to shut down employees and take vacations if enough income is not generated after the pandemic strikes. Economic hardship is best addressed publicly, as the CARES Act has done for those directly injured. Indirect economic damage (depression; reduced retirement income) is usually not compensated in Tort and is best viewed as a risk to investments and life. Although psychological stress is real, it is not compensated for, as it is difficult to separate real from faulty damage. This “moral hazard” is the reason why common law torts do not allow the illicit act of negligent infliction of emotional stress. Where there is no negligence, there is even less reason for compensation.
I could go on, but I think I’ve rounded up the main types of lawsuits that have been and will be sparked by COVID-19. I haven’t talked about a lawsuit against China, however – if that country negligently allowed the virus to spread overseas by hiding it from the rest of the world, its perfidy is likely causing trillions of dollars of real damage. As my law professor Stephen Carter pointed out, sovereign immunity protects this massive offender from liability (although Quixotic lawsuits have already been filed in the US and Israel).
I hope all readers stay safe. That’s the best way to avoid a pie suit!