COVID-19 Reading List

October 2, 2020

Jonathan D. Urick, U.S. Chamber Litigation Center

Highlights of this week’s reporting and commentary on COVID-19 litigation include articles on “take home” lawsuits, the need for liability reform, and a possible “middle ground” for handling COVID-19 business-interruption insurance MDLs.

“Take Home” Lawsuits Threaten Employers

Reuters reports that “U.S. businesses with COVID-19 outbreaks are facing an emerging legal threat from claims that workers brought coronavirus home and infected relatives,” which could potentially cost employers $21 billion in liability or more.  Labor and employment attorney Tom Gies of Crowell & Moring, who defends employers, warns: “Businesses should be very concerned about these cases.”

According to the article, these new coronavirus lawsuits are modeled on “take home” asbestos claims, which have been around for decades.  Since the plaintiffs asserting such claims are not the defendants’ employees, they do not face the normal restrictions of the workers’ compensation system.  Even so, Reuters explains, attorneys on all sides agree that plaintiffs must demonstrate “a strong ‘causal chain’ linking the sick family member to the worker and then to the business and the business’s alleged failure to adopt safety measures.”

New Calls for Liability Reform

Writing in a Detroit News editorial, Casey Given, executive director of the nonprofit talent agency and PR firm Young Voices, urges lawmakers to curtail America’s “out of control” litigious culture by enacting litigation reform “for the future of American innovation.”  “As the U.S. continues to recover from the COVID-19 downturn,” Given argues, “it’s important for politicians to take a long, hard look at how trial lawyers can so easily squeeze multi-million dollar verdicts from private businesses that serve as the backbone of the American economy.”  The editorial specifically notes that a joint amicus brief by the U.S. Chamber of Commerce and National Association of Manufacturers “hit the nail on the head” by warning about the “harmful long-term implications” of large, abusive jury verdicts.

Given warns that “frivolous lawsuits could soon be on the rise in the aftermath of the COVID-19 pandemic,” potentially unleashing “greedy trial lawyers.”  “To get the American economic engine running again,” he recommends some helpful reforms: “Simple solutions like capping the amount of tort damages, having losers pay court fees, and limiting when juries decide civil cases can go a long way in restoring legal sanity to our broken system.”

MDL Panel Considers a “Middle Ground” for Business-Interruption Insurance Cases

Law360 reports that, last Thursday, during five hearings lasting over two hours, the federal Judicial Panel on Multidistrict Litigation “heard arguments from more than 30 attorneys over whether to establish five separate ‘single-insurer’ MDLs to centralize COVID-19 coverage actions pending in federal district courts.”  “The panel's ultimate ruling will determine if nearly 300 suits against those insurers — which comprise a sizable chunk of the more than 700 federal COVID-19 coverage disputes around the country — will move forward individually or on some sort of consolidated basis.”  Back in August, the panel refused to create one massive MDL for all the federal COVID-19 coverage cases, which involve over 100 insurer defendants.