Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Litigation During the Pandemic

   Recently, the Wall Street Journal published an article concerning litigation related to the spreading of COVID. The article reports that personal injury lawsuits brought against businesses by infected customers and employees are nearly nonexistent in state and federal courts apart from a cluster of lawsuits targeting cruise lines. The existing laws have funneled most employee claims against employers into the workers compensation system, which do not typically award large sums to trial attorneys who can sue for pain and suffering in the courts.

   The majority of cases involving COVID are civil rights lawsuits by prisoners who contracted the virus given their incarceration, challenges to business closures, large gathering bans, voting rules and other government actions or disputes over insurance claims, contracts and employee terminations. Workers have also filed complaints with the federal Occupational Safety and Health Administration.

   There are approximately two dozen personal injury cases filed by consumers pending. Most of the complaints are against Carnival Corp. and other cruise lines brought by infected passengers, claiming that the cruise lines mismanaged their responses to the outbreak by failing to implement screening and social distancing protocols or by concealing infections. The low volume of personal injury claims is largely attributable to difficulties a plaintiff bears in proving causation. (i.e., that the defendant’s careless conduct was the source of infection and injury.) Not only is causation an issue, but a plaintiff also has difficulty identifying and proving that the employer’s negligence was the cause of the infection.

   Recently, Republican Senate Majority Leader Mitch McConnell dropped attaching a liability shield to the $9 Billion COVID relief aid package recently passed by Congress. Trial lawyers and labor unions lobbied against the shield arguing that giving companies immunity would only make it more likely that employers would cut corners resulting in more illness, compounding the spike in the pandemic. However, a number of states have already enacted restrictions regarding COVID lawsuits against nursing homes. Time will tell whether COVID litigation, like the virus, will spike. Most plaintiff lawyers are creative and will find ways to bring claims against retailers, universities and other employers.

 

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