As the nation fights to halt the spread of the deadly virus, we have been drawn together by the common interest of ending the all-consuming public health emergency. Yet, we know that this time of shared mission and community will eventually draw to a close and the reality of tort law will reassert itself. In the coming environment, thousands of those who lost someone in the pandemic or those affected by contracting COVID-19 will be looking for targets on whom to assess blame and legal responsibility. Some suffering from the consequences of the economic shutdown will be looking for creative means by which to recover their losses.​

While the COVID-19-related science will continue to develop, it is fair to assume that many afflicted by the virus will seek to determine the onset of symptoms and to identify potential sources of their infection. Targets include:

Manufacturers: Were the products adequately disinfected, safely manufactured and distributed and accompanied by proper warnings? Were the products falsely advertised? Did the products increase susceptibility to or severity of the virus?

Retailers: Was access limited to prevent overcrowding? Was adequate sanitization employed?

Condominium Associations and Landlords: Were common areas adequately restricted and sanitized? Was access to the premises by visitors and vendors limited? Was there appropriate communication and follow up if a tenant/resident tested positive?

Doctors and Hospitals: Did the treatment comply with the standard of care, notwithstanding an undesirable patient outcome, even in these immensely trying circumstances?

In anticipation of the litigation on the horizon, those who will be defending their actions during the pandemic would be well-served to engage in activity, now, which will inure to their benefit when the COVID-19 lawsuits materialize.

The laws of each state vary but, generally, certain principles apply: Did the defendant act reasonably? Was a product they made or sold unreasonably dangerous? Was the product properly advertised, and did it include accurate warnings? Did the product perform its intended purpose? If not, businesses could be facing claims for negligence, strict liability, and breach of warranty.

Businesses can take steps to minimize their exposure in these cases. As a starting point, businesses should take steps to comply with federal standards regarding sterilization, social distancing, and good manufacturing practices. Additional steps may be taken to further curb potential exposure for claims brought in the future.

Behave Reasonably

Perhaps unfairly, businesses will be judged, with the benefit of hindsight, on whether they acted reasonably during the course of a previously unforeseen pandemic. The following actions could prove to be of value in demonstrating reasonable care:

• Follow the scientific and regulatory data to reach an informed decision whether your business decisions are defensible.
• Follow local and state orders regarding the re-opening of businesses and the gathering of “essential workers.” In this landscape where businesses are anxious to reopen their doors, plaintiffs will be analyzing whether a business followed government recommendations.
• Make known your efforts to provide a safe environment to employees, customers and residents. Seek input to remain informed of concerns and take action when needed.
• Train employees on sales practices to limit the likelihood of false advertising, misrepresentation, and express warranty claims.
• Document safety measures undertaken, including relevant corporate policies and the acts performed to conform with those policies.

Warnings and Disclaimers

Products specially manufactured to meet the growing needs for safety equipment are particularly at risk for litigation, especially when a manufacturer is operating outside of its ordinary production. Warnings and other disclaimers can be an effective means to establish that the manufacturer acted reasonably given the current circumstances.

When a product does not meet regulatory requirements for medical devices, consumers of the product should be made aware of its limitations. For example, a face mask that is intended as a consumer product to reduce the spread of germs should be explicit in its conveyance to the user that the product does not provide air filtration necessary to prevent inhalation of the virus. Warnings should be thoughtfully crafted in order to be adequate. Liability exists not only for failing to warn at all, but also for providing a warning that was confusing or otherwise ineffective.

Similarly, when selling these products, warranty disclaimers are appropriate to identify the specific intended purpose of the product or to clarify that the product is not intended for use by health care professionals. When possible, appropriate instructions should accompany each unit to optimize the communication to the end-user of the limited intended functions of the product.

Recently, the federal government passed legislation to provide limited immunity related to the manufacture and distribution of certain safety equipment. The law provides certain immunity from personal injury liability, but only if certain prerequisites are met. While that legislation is beyond the scope of this alert, businesses should keep in mind that the law does not shield every product.

Closing Thoughts

The personal injury landscape will be altered by the maze of COVID-19-driven legislation and executive orders issued to protect care providers, select manufacturers and Good Samaritans. Notwithstanding those protections, a myriad of businesses could find themselves in the crosshairs of the plaintiff’s bar.