Navigating & Preparing for Coronavirus Lawsuits
by Robert M., Express Writers
Lawyers are trained to rely on precedent, but 2020 practitioners are about to create it. The unprecedented public health regulations sweeping the globe have halted life as we know it. From triggering economic circuit breakers to reviving wartime production acts, the coronavirus outbreak has left Americans confined to their homes wondering what the future holds.
Attorneys in every sector are inundated with questions about the rights and remedies of Americans affected by the coronavirus, but there aren’t simple answers. Ever-changing international, federal, state, and municipal regulations are eclipsed only by ever-changing information about the virus itself. From tracing COVID-19 outbreaks to sustain personal injury claims to assessing the material impact of a force majeure, expert testimony will take center stage during years of inevitable coronavirus litigation.
BUSINESS LIABILITY & EMPLOYMENT LITIGATION DUE TO COVID-19
Daily headlines highlight the dilemma faced by high-risk employees constructively discharged due to Coronavirus concerns. Constructive dismissal claims typically arise when an employer creates or fails to remedy a hostile work environment, but does the COVID-19 outbreak actually create a hostile work environment? Employers failing to implement mandatory public health regulations may be liable for creating an unsafe workplace. Further, employees terminated or denied pay for remaining at home due to Coronavirus concerns may have a federal remedy if all of the following conditions for refusing to work are true:
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The employer was asked to eliminate (or reasonably mitigate) the unhealthy condition
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The employee refused to work due to a genuine belief that he/she was in imminent danger of contracting COVID-19
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There was a real danger of death and/or serious illness from the outbreak
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There was no time to remedy the condition before refusing to work, i.e., the danger was immediate
Medical and occupational hazard experts are indispensable to COVID-19 constructive discharge claims. Tracing the path of the coronavirus and the statistical likelihood of infection weighed against preventative measures is central to wrongful discharge claims. The refusal of high-risk and critical industry employees to work also prompts cumulative effect and public safety considerations qualified experts should address during judicial proceedings.
PERSONAL INJURY & WORKER’S COMPENSATION CLAIMS FOR CORONAVIRUS PATIENTS
Prior to the Coronavirus outbreak, few personal injury lawsuits were premised on catching a common virus. It’s difficult, and nearly impossible without expert testimony, to prove causation when it comes to common viral infections. Was your client infected from an asymptomatic neighbor, an employer’s failure to provide safety masks, misleading claims about hand sanitizer, or from using the subway during her commute? The origin of the infection dictates whether and what type of personal injury claim your client has: general negligence, worker’s compensation, product liability, or premises liability. Nursing homes, daycares, grocery stores, gyms, and schools that failed to implement necessary safety measures may be subject to general premises liability for traceable COVID-19 infections. Provided a qualified medical expert can link causation to a client’s status as a common law invitee, premises liability may be a viable option for Coronavirus recovery.
Invoking strict liability to recover from municipalities, individuals, or businesses that failed to implement mandatory safety measures may also form the basis of a negligence claim. Regardless of the avenue of relief, proximate cause is an essential element of Coronavirus injury claims. Testimony from medical experts and biostatisticians will likely be necessary to sustain Coronavirus-related personal injury litigation moving forward.
CORONAVIRUS LAWSUITS ARISING UNDER CONTRACT
The indirect impact of the coronavirus is more widespread than the virus itself. Many Americans – up to 90% back in April – are still subject to stay-at-home orders, impacting every major industry in the United States and abroad. When even one business can’t perform under a contract, this may trigger a devastating chain reaction of contractual disputes. Transactional and business attorneys are being left to interpret whether the doctrine of force majeure applies to the present pandemic. From a major corporation’s production obligations to a baker’s inability to deliver a wedding cake, clients are desperate to ascertain their legal options during a pandemic. Unfortunately, contract disputes often require a case-by-case analysis of the material impact of an unforeseeable pandemic on the affected industry.
Some contracts specify the remedy when “acts of God” make it impossible or impracticable to fulfill its terms while otherwise silent contracts are subject to state contract law. Expect the following traditional common law doctrines to resurface during COVID-19-related contract litigation:
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Force Majeure and/or “Act of God”
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Illegally Doctrine
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Frustration of Purpose
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Equitable Remedies
It’s best practice to have industry and cumulative effect experts testify about the foreseeability and material impact of the coronavirus on a contractor’s ability to perform. This testimony is often necessary to trigger force majeure provisions and activate insurance coverage. Companies damaged by a contract canceled due to the coronavirus may be entitled to claim compensation under their umbrella policies or delay their contractual obligations.
TAKING THE LEAD IN VETTING CORONAVIRUS EXPERTS FOR LAW FIRMS
In addition to individual lawsuits, numerous industries are challenging the constitutionality of certain public health and safety regulations. The landscape of Coronavirus litigation can change overnight after a constitutional challenge, and the fluidity of the current legal environment can leave attorneys scrambling for answers. Working with qualified medical and economic experts is essential to the success of Coronavirus lawsuits. The right COVID-19 experts can help attorneys determine whether their clients have viable coronavirus-related claims and shape Coronavirus litigation itself. Guidepoint connects your law firm with vetted COVID-19 subject-matter experts across every industry. Our experienced public health, regulatory, and economic expert partners are methodically examining the Coronavirus pandemic to provide our members with the most up-to-date analyses available. To learn more, reach out to us at legal.solutions@guidepoint.com
Please note: This article contains the sole views and opinions of Express Writers and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Express Writers is prohibited.
