April 29, 2020

The Coming Pandemic of Litigation and Liability

Businesses that reopen need a measure of protection from liability lawsuits.

The parasites are out again — and by “parasites” we mean those dark-hearted lawyers known as “ambulance chasers” — to take advantage of the devastation wrought by the ChiCom Virus pandemic. Don’t misunderstand: We wholeheartedly acknowledge that many personal-injury litigators and trial attorneys have proper motives and do good things for their communities. Those aren’t the ones we mean. Rather, it’s the sleazy tribe of legal vermin who prey on others’ non-self-generated adversity we wish to address.

Take, for example, the proliferation of ads spamming the airwaves and Internet. The message: “If you or a loved one has become seriously ill from COVID-19 due to someone else’s fault, you should seek legal advice to see if you have a coronavirus malpractice lawsuit.” Sure you should (cha-ching!). “Most businesses are advertising less, but trial lawyers are taking advantage of America’s home confinement to recruit clients on TV,” notes The Wall Street Journal. “Legal finance firms are also capitalizing by lending money for virus lawsuits on condition they receive a dividend from the eventual payout.” Have these companies no shame? The short answer: No. It’s all about the money.

Earlier this month we warned about the impending wave of lawsuits facing the medical community. But of course, as egregious as this fact is, these suits are not enough to satiate the bottom-feeders. Now they’re going after, well, pretty much everyone, as evidenced most prominently by the pending formation of the “Coronavirus Litigation Task Force,” as well as trial-balloon suits against various deep-pocketed businesses. Virtually every brick-and-mortar entity is vulnerable. If its employees or customers get sick, it’s a potential target for the ambulance-chasing crowd. Why? Because, of course, these institutions didn’t take “adequate precautions” to prevent illnesses and/or deaths. Never mind that COVID-19 is a highly infectious disease or that one can be asymptomatic for weeks while still infecting others. No, the important thing is that every one of these entities, large or small, has pockets — some deeper than others, but no matter: pockets are pockets. And the ambulance chasers will certainly be able to find “fault” even where it doesn’t exist – or at least threaten to find it in order to “settle.”

How can we head off the litigation pandemic once the nation opens for business again? For starters, in this national emergency, it is critical to provide a substantial measure of business and institutional immunity from liability associated with COVID illness and death. At the very least, some form of lawsuit protection should be implemented as a shield against the imminent onslaught of these suits. Even so-called “safe harbor” provisions, in which protection is afforded subject to certain conditions that must be met by those seeking that protection, are better than nothing. Otherwise, forget about having an economy as we’ve formerly known it. The economic locomotive has been slowed to a crawl, as it is. Getting up a full head of steam again is going to take a lot of energy and a lot of clear track ahead to gather the needed momentum.

State governors in hard-hit New York, Michigan, and Illinois have taken measures under their emergency executive powers to stem the wave of suits looming on the horizon. Other states’ legislatures — such as those of Massachusetts, Idaho, Minnesota, New Jersey, Ohio, and Utah — have passed laws or are working through bills addressing relief from various coronavirus-related lawsuit liabilities. These are all initial steps in the right direction.

But as Dan McLaughlin of National Review notes, “There is no one, perfect answer; any approach to limiting lawsuits will involve a balance of interests. More lawsuit protection means more and faster reopenings, but also reduces incentives for workplaces to protect workers and customers from infection.”

Another critical “balance of interests” concerns our system of federalism. Some responsibilities to address COVID-19-related lawsuit liability are best undertaken at the state level, and some at the federal. The proper balance of those responsibilities is a question best tackled by legislators between and in both levels. But the guiding principle in deciding where that line should be drawn in determining these balances is best expressed in this line by our Arnold Ahlert: “In short, ‘first, do no harm’ should be applied as forcefully to the legal profession as it is to the medical profession.”

For our part, that translates practically to erring on the side of restarting the economy at both state and federal levels. Customers — and even employees — will vote with their feet if they don’t feel a business is protecting them enough from harm, but no business is going to survive an unfettered, suit-happy tort bar bent on extracting the last dollar from it before it tanks.


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