Preparing for the Deluge of COVID-19 Litigation: 7 Key Sectors to Follow

Burton Bentley II, M.D., FAAEM
CEO, Elite Medical Experts

Novel Coronavirus (SARS-CoV-2) already affects the lives of billions of people, yet it didn’t even exist as a designated entity until the World Health Organization (WHO) named it “COVID-19” on February 11, 2020.  COVID-19 has since claimed a rapidly escalating number of lives, decimated economies, and changed the way of life for nearly everyone on the planet.  It is also a Black Swan event that has affected the legal system in unimaginable ways from closing the US Supreme Court to cancelling every trial across the nation.  COVID-19 is also making its first appearance in civil litigation where it will test novel legal theories and require the strategic insight of expert witnesses from myriad fields and disciplines.  The following are examples of actual and anticipated COVID-19 lawsuits as well as the experts they require:

1. BUSINESS INTERRUPTION / INSURANCE BAD FAITH:  The COVID-19 outbreak has shuttered businesses across the world, and this has already led to litigation focusing on business disruption and insurance bad faith.  In French Laundry Partners et al. v. Hartford Fire Insurance Company, the three-Michelin-starred restaurant alleges that it is entitled to insurance coverage for loss of business income due to a Civil Order that closed all non-essential businesses.  Businesses across the United States, including those outside the hospitality sector, are anticipated to allege similar claims. Potential expert witnesses:  Insurance Executive, Public Health Officer, Restaurant Industry Insider, Economic Damages, Occupational & Environmental Medicine Physician, Epidemiologist, and/or Infectious Disease Physician.
2. CRUISE SHIP NEGLIGENCE:  When Princess Cruise Lines’ Diamond Princess became the epicenter of one of the first COVID-19 outbreaks, the cruise industry was on alert that their passengers and crew were at grave risk of contracting Coronavirus infection due to their population density and global travel routes.  Although the CDC issued a Level 3 Warning against cruise ship travel in March 2020, many vacationers were already at sea or continuing to embark on preplanned vacations.  Passengers on multiple cruise lines suffered onboard quarantines with stranding, disembarkation delays, COVID-19 infection, and even death.  Cruise ship litigation will focus on cruise line negligence for failing to mitigate passenger risk, ignoring safety warnings, and continuing to sail despite a global pandemic.  Potential expert witnesses:  Cruise Ship Medicine Physician, Epidemiologist, Infectious Disease Physician.
3. HEALTHCARE FACILITY LIABILITY:  One of the most astonishing revelations of the pandemic is that healthcare workers in the United States  lacked adequate supplies of Personal Protective Equipment, or PPE.  PPE, whether in the forms of N95 masks, powered air-purifying respirators (PAPR), surgical masks, or face shields, are mission-critical for the safety of healthcare workers and the stability of the healthcare system.  PPE shortages led to immediate restrictions and rationing such that frontline physicians, nurses, medics, respiratory therapists, and other healthcare workers were left unprotected during high-risk patient encounters.  Some policies prevented healthcare workers from using homemade PPE even when no other masks were available, and other policies mandated prolonged reuse of potentially contaminated gear.  Litigation will focus on healthcare workers who suffered COVID-19 infections and related harms to their health, lives, families, and employment.  Potential expert witnesses:  Hospital Administrator, Hospital Procurement Manager, Emergency Medicine Physician, Emergency Medicine Nurse, Respiratory Therapist, Paramedic, Patient Care Technician, Epidemiologist, Infectious Disease Physician.
4. CORRECTIONAL FACILITY LITIGATION:  Coronavirus is capable of causing severe disease, and its high degree of virulence means that it can rapidly decimate populations particularly when in close quarters.  Jails and prisons are at extreme risk of uncontrolled infection, and many correctional systems, including the Federal Bureau of Prisons, took remedial measures.  Inmate health and well-being depends on the appropriateness and speed of such measures, and systems with inadequate COVID-19 responses may incur liability under civil and constitutional claims.  Potential expert witnesses:  Correctional Medicine Physician, Correctional Operations (Administration), Occupational & Environmental Medicine Physician, Epidemiologist, Infectious Disease Physician.
5. BUSINESS AND COMMERCIAL PROPERTY OWNER’S LIABILITY:  From small businesses to major properties like hotels and casinos, commercial property owners face liability from tenants and guests who claim that the facility was unsafe, overcrowded, improperly sanitized, and/or known to have a heightened risk of COVID-19.  Claims focus on establishing liability for premises owners and insurers when tenants or visitors suffer COVID-19 infection allegedly linked to a landlord’s property.  Given the complexity of proving epidemiological causation, such cases will be inherently challenging in many circumstances.  Potential expert witnesses: Infectious Disease Physician, Occupational & Environmental Medicine Physician, Epidemiologist, Facilities Manager.
6. SKILLED NURSING FACILTY LIABILITY:  While Life Care Center in Washington State was the epicenter of the first major COVID-19 outbreak on US soil, skilled nursing facilities (SNF) around the country have been affected.  SNFs have a uniquely high risk profile due to their special population of elderly patients with multiple comorbidities, and they were on notice regarding danger when early-stage data emerged from Italy showing that the elderly population was at a particularly heightened risk of death.  Consequently, skilled nursing facilities that failed to implement policies and equipment to protect patients and workers may face liability for their actions.  Potential expert witnesses:  Skilled Nursing Facility Administrator, Skilled Nursing Facility Nurse, Infectious Disease.
7. ECONOMIC, FALSE CLAIMS, AND SECURITIES LITIGATION:  Price gouging, insider trading, false claims advertising, securities misstatements, and outright scams are unfortunate consequences of public health crises.  COVID-19 created a ripe milieu for bad actors in each of these domains, and the legal system will face challenges separating signal from noise for each allegation.  Potential expert witnesses:  Securities Industry Specialist, Pharmaceutical Industry Executive, Economic Damages Expert, Pharmacologist, Analytical Chemist, Infectious Disease Physician.

It took only a few months for the terms “social distancing” and “N95 mask” to become commonplace, and the pace of Coronavirus litigation will likely parallel the trajectory of this unprecedented global crisis.  Attorneys from both sides of the bar will advance their clients’ interests by proactively developing strategies and resources to scrutinize these complex cases. To secure hand-selected experts from any requisite discipline, including Professors from the nation’s leading universities, please contact Elite Medical Experts and speak with a physician or nurse on our Case Strategy Team.