The second wave of COVID-19 litigation: “Take-home” infections.

It’s been just two months (though it seems much longer in this era of what I call “COVID-induced time dilation”) since we first wrote about existing and anticipated litigation arising out of the COVID-19 pandemic, https://www.videntpartners.com/blog/2020/unintended-consequences.  At that time, employees had filed 588 lawsuits (69 of which were class actions) against employers alleging labor and employment violations (retaliation, wrongful termination, discrimination, failure to accommodate, etc.) related to the coronavirus.  Today there are 1,038 such lawsuits, including 107 class actions – almost twice as many as there were two months ago – and the statistics at https://www.littler.com/publication-press/publication/covid-19-labor-employment-litigation-tracker show that this growth rate (approximately doubling every two months) has been consistent since April.

“[A]ccording to data collected through a national association for lawyers, it is estimated that…more than 5,000 [COVID-related lawsuits have been filed] across the country.”  https://businesswest.com/blog/what-businesses-need-to-know-about-the-flurry-of-covid-related-lawsuits/.  In other words, employee vs. employer litigation, as massive and growing as it is, constitutes just 20% of the first wave of coronavirus lawsuits:

The first wave of personal injury coronavirus litigation emerged in early March when a married couple sued Princess Cruise Lines for gross negligence….Many similar individual and class action lawsuits have followed.  According to an analysis by the Miami Herald, some 3,600 cruise line passengers have contracted COVID-19 and more than 100 have died. 

The situation in nursing homes is far worse.  Nursing home residents account for an estimated 40% of U.S. coronavirus deaths thus far.  Predictably, wrongful death suits filed by the family members of nursing home residents are surging, even as some states move to shield nursing home operators from liability.  Personal injury lawsuits have also been filed against hospitals, meatpackers, restaurants, grocery stores and warehousing operations….

What would a second wave of coronavirus personal injury litigation look like?  One possibility that modelers at Praedicat (https://www.praedicat.com/) are considering is a wave of “take-home COVID-19” litigation arising from occupational infection, coupled with high rates of intra-family transmission.  Praedicat modelers estimate that 7-9% of COVID-19 deaths in the first wave have been family members of workers in essential industries who acquired coronavirus at work.  With widespread testing and improved contact tracing, take-home transmission could be relatively easy to demonstrate during a second wave.  The first take-home COVID-19 lawsuits were filed in August against an electrical supply company and a meatpacking facility…. https://www.riskmanagementmonitor.com/take-home-covid-19-claims-preparing-for-a-second-wave-of-coronavirus-litigation/

(For a discussion of the lawsuit against the meatpacking facility referred to in the last sentence above and a link to the complaint, see https://rdm.law/blog/2020/10/26/covid-19-and-take-home-infections.) 

The model for take-home COVID litigation is, of course, take-home asbestos litigation. 

[N]umerous scientific studies found elevated rates of asbestos-related diseases among families of asbestos workers….A study in 1978, for instance, found that family members of asbestos workers were 10 times more likely to have mesothelioma than otherwise equivalent individuals.  (Citation omitted.)

Subsequently, in the mid-2000s, courts began to award damages to spouses and children of asbestos workers….One characteristic of the take-home asbestos litigation is that the basis of the lawsuit is the negligence of the employer itself, rather than a product defect [for which] some supplier [is liable]….

COVID-19 is not a product risk like asbestos.  But it is an occupational risk, as workers in hospitals, nursing homes, “essential” retail, meat production, construction and other industries face elevated rates of transmission….As early as February 2020, published scientific studies from Wuhan identified one of the coronavirus’s key risk characteristics as a high degree of intra-family and intra-household transmission….

Unlike transmission of COVID-19 to customers or transmission in the wider community, where a specific source of exposure may be difficult to prove, take-home COVID-19 for the parent of a nursing home worker, for instance, is relatively straightforward to connect to the specific nursing home.  Furthermore, virus tracking using genetic sequencing of potentially linked infections can help associate or dissociate the worker or family member’s infection from other potential sources….

….We estimate that approximately 13 percent of COVID-19 deaths are family members of workers who acquired their illness at work.  In a scenario where the ultimate size of the U.S. pandemic is 150,000 deaths, a level predicted by the Institute for Health Metrics and Evaluation at the time of this writing [7/6/2020], the scenarios suggest a range of awards and settlements between $11.4 billion and $27.4 billion, depending on the degree to which courts accept this cause of action.  In a catastrophic scenario where a second wave of COVID-19 cases occurs in the fall and winter and the ultimate size of the pandemic in the United States is 300,000 deaths, the losses could exceed $50 billion.   

https://www.carriermanagement.com/features/2020/07/06/208672.htm?bypass=bb7e6687a059a1ef02fcd0ee872b2620, with emphasis added for the very good reason that at the time of this writing, 11/3/2020, there have been 232,484 U.S. deaths, https://coronavirus.jhu.edu/map.html.  With several hundred additional deaths reported every day, it appears that we are well on the way to the “catastrophic” level of 300,000 deaths and the concomitant total of over $50 billion in verdicts and settlements.  Under the circumstances, the conclusion of our previous post on this topic bears repeating:

All of these lawsuits will require experts in many fields of specialization.  Plaintiff and defense attorneys alike will be looking for qualified, experienced experts, and it won’t be long before the available experts start to be “used up.”  We have seen this phenomenon in the opiate litigation, which involves thousands of lawsuits in both state and federal courts:  Attorneys who waited too long to engage experts had great difficulty doing so, because most experts had been engaged previously by other parties and consequently were either unavailable or conflicted.

Vident Partners works with attorneys to identify qualified, experienced, appropriate experts for all types of litigation, and on this brand-new legal battlefield our services are going to be essential.  We look forward to working with you.

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