The mass tort landscape is reaching a new peak while COVID-19 outbreaks and the Delta variant continue to change aspects of daily life. The business community and personal lifestyles are shifting as investments increase in advanced video call conferencing to help people conduct work from home or an isolated location. This uptick in remote operations extends to plaintiffs’ law firms.
The entire U.S. population has suffered since the pandemic forced many businesses to close their doors. People are trying to stay healthy and safe with the rollout of the new vaccines while also using many different preventative and over-the-counter therapeutic products, holistic treatments, and protective sanitary items.
Likewise, this shift in daily practices and product usage has stemmed a new market for faulty products and fraudulent schemes. Manufacturers and product distributors make unsubstantiated claims when marketing these newly coveted COVID-19-related items that are unapproved to treat the virus by the U.S. Food and Drug Administration (FDA).
No one can know the long-term impacts of the new normal and COVID-19’s influence on workforces. However, experts are starting to weigh in on projections and pursuable avenues in the future. Questions on the effectiveness of vaccines and serious fraud are swarming the mass tort landscape and plaintiffs’ attorneys’ caseloads. The Federal Trade Commission (FTC) and the FDA conducted several investigations into reports of recent fabrications, and the FTC continues to receive potential fraud reports from consumers.
A current focus is related to product liability claims and medical devices that claim to help prevent or treat the virus. In addition, the FTC lawsuits filed in federal courts lead to refined definitions of negligence and liability concerning related claims.
Many have never experienced a pandemic before, especially in our advanced digital and medical technological world, making the present COVID-19 impact considerations groundbreaking territory for the legal realm.
Financial Effects of the Lockdown in the Legal World
Law firms took a big hit in 2020 along with the rest of the world. The pandemic caused courts to perform triage by case type, leaving claims with postponed hearings and putting a hard pause on everyday processes.
Those bouncing back still struggle with funds to hire lawyers for long-term work or pay on any judgments they might have. Finding the resources to hire an attorney has also affected firms as lockdowns hit clients with unanticipated financial losses.
However, despite the many recent lulls in the legal system, experts still expect a rise in class action lawsuits and multidistrict litigation (MDL) proceedings.
The various financial impacts on the law industry are countless:
- Courts have temporarily closed, postponed hearings, and slowed down the workflow of a functioning courtroom. These closures have forced personnel to invest in new technologies and provide protective gear (e.g., masks and hand sanitizer) to individuals required to attend court in person.
- Plaintiffs’ law firms are experiencing interruption or a complete stop in business. Courts are prioritizing cases to address issues involving worker’s compensation or evictions behind other rights (e.g., criminal matters). Law firms are doing their best to function with no specific projected revenue for the near future. New mass tort claims could potentially invigorate the legal landscape.
- Former attorneys, paralegals, and office managers have become part of the population filing for unemployment benefits. We see many of these workers transitioning to companies that offer litigation services and remote technical work, such as case management companies.
Now is the best time for law firms to address their diminishing workforce and hire case management companies who provide the same work at a lower cost. These business combinations allow law firms to remold law offices, save on salary and insurance costs, and better tackle the new demands arising in the litigation field.
COVID-19 impacts can spur new mass tort cases, leading to an influx of plaintiffs needing representation. In addition, new regulations in the U.S. are dictating who can be at fault for these COVID-19-related concerns and injuries. Currently, certain protected people and companies will not be held financially responsible for claims proving injury and cause. This standard will impact clients’ abilities to see any redress if the COVID-19-related products injure them. Thus, this may affect their willingness to begin a lawsuit when a valid claim exists financially.
How Court Proceedings Changed in Mass Tort Cases Due to the Pandemic
Courtrooms are much different since early 2020. Changes taking place in courthouses across America include:
- Judges’ calendars
Zoom’s video conferencing app has exploded in popularity, and now proceedings are mostly done through video calls and streaming services. Still, the use of technology is not speeding up court processes. Judges continue to have shorter schedules while hearing fewer cases each day the court is open. - Client expectations
Plaintiffs’ attorneys are sorting out issues over video calls, requesting in-person appearances, and helping clients unfamiliar with the new procedures. Lawyers have to explain that it’s still a requirement to dress appropriately from top to bottom as though you were physically present at a court proceeding. Additionally, juries may react differently over zoom, and telling your story virtually can have a different effect than if they were in person. - Depositions
Depositions are now more difficult than ever to coordinate. This challenge often leads law firms to outsource scheduling to companies with professional staff that can offer solutions for those without the proper equipment to conduct a large-scale deposition remotely. In addition, live-streamed video depositions can remove the nuance it takes to perform well, putting into question the ability to have quality depositions and retrieve vital information to build a case. - Hearings and trials
Jury responses and case resolutions take place over Zoom, with some cases still meeting in person. It’s a scary reality for plaintiffs’ law firms whose acumen in litigation might face hindrances presented by the partial removal of face-to-face arguments. The impact a well-spoken statement can have on a case is potentially lost in translation over Zoom when mass tort lawyers are speaking from their homes. Jury selection happens over Zoom regularly now as well. Court trials and pre-trials can happen virtually if needed. Unfortunately, potential jurors may not be familiar with computers or video calls. If a juror is unenthused, unfamiliar, or frustrated with operating the technology, it may impact the outcome of a case.
What Product Liability Lawsuits Do Experts expect to see due to the Pandemic?
Becoming familiar with the Public Readiness and Emergency Preparedness (PREP) Act is key to analyzing what product liability cases might be like moving forward. The PREP Act lays out the legal liability for injuries directly caused by the COVID-19 vaccines, thereby alerting legal professionals to case filings that the law allows.
“Covered persons” and entities, defined by the Secretary of Health and Human Services (HHS), will not be held liable for losses caused by or related to vaccines approved by the FDA. This shifts plaintiffs’ attorneys focus to unapproved FDA products on the market related to or claiming to be a treatment, cure, or prevention for the virus. Recent product fraud reports made to the Federal Trade Commission (FTC) include mislabeling and defrauding the public through claims of product effectiveness against the virus.
Case management companies can help track current government lists and pending lawsuits. They can also shed insight on pursuable claims and new precedents under the PREP Act, as well as other issues that might arise from COVID-19-related products.
Clients may seek consultations on potential claims for:
- Manufacturers and distributors failing to report the presence of the virus in their facilities or on their products
- Companies failing to release employees who are visibly ill with coughing, sneezing, runny nose, and fever
- Ineffective or inadequate sanitation, protective, or preventative supplies, such as masks and sanitizers, potentially leading to the virus’s increased transmission due to the product’s inability to kill or prevent COVID-19
- Products advertising to be a treatment, cure, or preventative measure for the virus without FDA approval
- Ingestible herbal remedies and dietary supplement products relabeling their packaging with claims to treat, cure, or prevent the virus
- FDA approved COVID-19 vaccines and medicines that claim to treat or curb symptoms
- Testing products that claim to detect antibodies of certain viruses
- Products that claim to help the immune system function more effectively
- Manufacturers and distributors whose items contain concentrations of the virus that are spreadable to consumers
- Omissions of pertinent drug interaction information on product labeling
The above examples show an overview of the current litigation landscape and the direction in which product liability litigation may soon shift. The PREP Act provides attorneys with starting points for research, such as understanding the legal requirements for FDA labeling and product classification and approval, which can make or break a product liability claim. In any case, a mass torts attorney will have to do their due diligence to discover whether a company abided by its responsibilities under any legislation existing at the federal or state levels as well as per executive orders.
What mass tort claims will plaintiffs be able to file due to COVID-19?
The result of COVID-19 on mass tort cases is not fully understood yet. Pursuing multiple plaintiffs’ relief proves challenging since there’s little direct precedent to rely on. Current information shows fraudulent claims where consumers depended on a product to treat, cure, or prevent the virus based on advertising. In addition, recent complaints reveal FDA approval was not obtained by defendants for their products, nor did they follow the FDA guidelines for unapproved product labeling:
- FTC v. Golden Sunrise Nutraceuticals et al. involves product liability and false claims a product could treat COVID-19. Golden Sunrise Nutraceuticals and officers of the company received a judgment in a California federal court to pay damages to the fraud victims.
Lawsuits related to the pandemic could be underway soon and set a new precedent for potential mass tort claims. Having previous legal experience in defective products, insufficient labeling, warning requirements, and breach of warranty will closely apply when building a case. Experts expect that coming lawsuits may contain questions of a defendant’s competency in safe production standards or protocols. “Lack of owed safety” claims may be related to:
- Widely purchased products that have a design defect
- Manufacturer’s liability for defects in products assembly
- Failure to provide adequate labeling, instructions, and warnings
- Acting with negligence or disregard for others
- Misrepresenting ability or fraudulent claims of a product’s characteristics
- Violating an expressed warranty
- Violating an implied warranty claiming purpose, use, or quality of a product
- Intentional or unintentional defects causing a product to be unreasonably dangerous
Are there any claims plaintiffs will not be able to pursue?
Vaccination injury claims will prove to be an uphill battle when seeking damages from companies and manufacturers. It’s unlikely that “covered persons” and entities will be held legally liable for injuries or deaths related to an individual receiving a COVID-19 vaccine. HHS defines covered persons as “COVID-19 vaccine developers, manufacturers, distributors, and health care professionals who administer a vaccine.”
This all-encompassing definition leaves those who want to pursue vaccine claims to attempt to obtain damages through the Health Resources and Services Administration (HRSA) and its Countermeasures Injury Compensation Program (CICP). The program is reserved for claims regarding serious injuries and deaths directly caused by covered persons who acted with “willful misconduct.”
CICP claims will be presented to a panel of three judges in the District of Columbia.
The HHS declaration deploys several agencies to begin emergency relief. Health care providers and related staff need to administer vaccinations quickly to stop the spread of the COVID-19 viruses. Further, the PREP Act provides government entities with certain rights to protect them from lawsuits. Together, the HHS declaration and PREP redefine the ability to pursue vaccine-related claims in a civil suit. Both acts change the state tort law approach. State and local governments are protected from claims regarding published countermeasures under PREP. Promotion and advertisements fall under PREP protection when covered persons produce the subject matter.
Finally, governments provide countermeasures to the public during emergencies through the Pandemic and All-Hazards Preparedness Reauthorization Act. This Act permits the reallocation and appropriation of funds to ensure countermeasures are enacted with haste. This law may further protect government entities on claims of funding and distribution of funds during countermeasures.
How are companies reacting to try to limit exposure?
Many companies are likely to overlook the glaring violations in products marketed for health and wellness. Companies are limiting their risk of liability with new labeling and sales tactics reeducation.
Companies may also mitigate a customer’s personal complaint just by issuing a refund. While pushing products might be a business’s best chance of continuing operations, if the product injures the customer, they could potentially use that to argue in favor of liability. Larger corporations might agree to a simple refund for a plaintiff who suffered an injury after using their product because this is not a viable admission of negligence or liability.
Plaintiffs’ law firms need to be equally careful about what they believe or purport to be pursuable. For example, potential clients may seek relief for a product they purchased to treat the virus
when the seller claimed it would. These claims require thorough research before a firm should engage. If that product’s label states that it “…has not been approved by the FDA and is not intended to prevent, treat, or cure any disease,” then you could be wasting your time and energy.
If that same product’s label also states that it can “prevent COVID-19,” then you may have a claim depending on the extent of a client’s injuries. A case management team can help inform a law firm of up-to-date labeling requirements for health and wellness products to better research these new claims.
Plaintiffs’ law firms usually know what defense tactics to expect. Defendants faced with a COVID-19-related claim may argue any number of these points but beware of how it relates to virus liability.
Some of the virus-related defenses a defendant might use include:
- The company completed its minimum labeling requirements, which provided adequate warnings to consumers. This defense would redirect liability to the plaintiff for insufficient self-education.
- The company may use the Coronavirus Aid, Relief and Economic Security (CARES) Act to deflect plaintiffs’ attorneys toward funding under CARES. Funding for CARES usually applies to standard health insurance plans and countermeasures.
- The company may attempt to gain immunity under PREP and purport the company as a covered person.
- The company may use Good Samaritan laws to claim reasonable aid to a plaintiff’s need to seek immediate intervention.
- The company may attempt to redirect claims to its insurance provider where it’s unlikely the claim would be applicable for coverage.
- The company may claim a product’s intended use was to prevent illness in general and not specifically intended to include COVID-19.
Potential Successful COVID Insurance Claims
No company could have predicted they would need to add COVID-19 to their insurance coverage. If they had, no insurance company would have sold it.
Having a business requires multiple insurance policies, most of which are for the benefit of employees. Now businesses are struggling with closures and are looking to see what aspect of their policy they can cash in on to mitigate their financial losses. Insurance companies insert exclusion clauses that exempt them from paying on claims related to pandemics and viruses.
This common practice among insurance providers creates an issue for businesses faced with a pandemic and its effects, leading several companies to look for the best firms to potentially find any gray areas in their insurance policies. Many insurance carriers state they will not cover business interruption claims due to the pandemic but encourage customers to file claims regardless.
Plaintiffs’ attorneys should know what phrasing to use when submitting a claim to an insurance company. Having one classified incorrectly will cost too much time as insurance companies become flooded with multiple claims from businesses. Case management companies can ensure you file claims properly, including:
- General Liability: These claims usually cover third parties and are not typically a means to recover COVID-19 related damages.
- Worker’s Compensation Insurance: These claims may not include virus coverage for an employee unless it can be proven the employee contracted the virus from the workplace and suffered severe injury or death as a result.
- Commercial Property Coverage: These claims seem unlikely as this only applies to damage of the property and structures. Companies can add to this policy subsequent business interruption (BI) coverage. However, BI was not intended to cover pandemic-related claims as it’s a subsection of commercial property insurance.
- Contingent Business Interruption (CBI): This coverage may be a plaintiff’s favored approach even if their policy includes language excluding pandemics and viruses, as CBI coverage usually consists of some loss of revenue.
Attempting a BI or CBI claim when hours of operation or workforce have dramatically decreased seems like a viable option for business owners to pursue. However, the evidence of insurance companies paying on such claims is simply not there. Any interruption to a business due to the pandemic that affected revenue may be applicable as an insurance claim upon careful review of the entire policy.
Recent Mass Tort Cases During COVID-19
During quarantine, several mass tort cases were pending in federal courts in the United States and continue to be delayed. Plaintiffs filed new claims during the height of COVID-19 that remain unresolved along with previously pending class action suits. Both plaintiffs and defendants now expect court delays and extensions for cases.
The absence of court appearances during lockdowns and closures required people to learn how to operate video call applications. This practice continues to add time to courts’ processes. Bellwether trials are becoming more popular and preferred in mass tort cases. The residual effects of closures have made it preferable to lump as many similar claims together as possible. Doing so helps the courts to consolidate their caseload and move claims through the process as fast as possible.
Here’s an overview of the changing aspects of the mass tort landscape during quarantine:
- Refusal to refund is sweeping the courts as nearly every type of business has implemented nonrefundable goods and services during the pandemic. New York Sports Clubs (NYSC) closed its doors and reportedly advertised it would issue refunds for monthly memberships. When customers attempted to receive a refund, the gym denied them their refunds. New York Attorney General Letitia James filed a lawsuit on September 30, 2020, against the parent company of New York Sports Club, Town Sports International Holdings, Inc. (TSI Holdings).
- In 2020, U.S. airlines Frontier and Spirit not only canceled flights due to the pandemic but refused to refund the grounded passengers. The airline attempted coupon handouts good for one year, but many passengers opted to file a civil suit for more.
- Several people have filed lawsuits in Florida against the country of China since the pandemic. One claim puts forth allegations that China withheld personal protective equipment (PPE) from the U.S. during the initial wave of the virus.
- Alaska state employees filed claims alleging unsafe and unsanitary work environments leading to a heightened risk of contracting the virus. In addition, Alaska state employers would not allow employees to switch to remote work as an alternative to being physically present. Plaintiffs seek mandated safety policies for relief, putting into question the issues of occupational safety.
- Wells Fargo and Chase Bank have claims against them for unfair lending practices. The suit alleges that the banks ignored small businesses seeking lower-amount loans while larger loan applications were being completed and approved. Small companies that qualified for relief loan programs allege their applications were not reviewed timely or at all. The claims state businesses entitled to the relief programs were denied fair access due to the banks’ ineptitude.
- When you see the retail cost of certain coveted items go up, it’s a telltale sign of price gouging. Recently, plaintiffs filed claims against an N95 mask reseller and egg distributors. These claims allege that the resellers and distributors are making unwarranted markups solely for profit. Some expect to see lawsuits against disinfectant and rubbing alcohol wholesalers soon.
- As anticipated, people have filed claims against Zoom Video Communications due to privacy and encryption concerns. Daily business is conducted over Zoom specifically, giving the company a unique entrance to the stage of litigation. This case marks one of the first of its kind. On August 2, 2021, Zoom reached an $85 million settlement over user privacy and “zoomboming.”
How Plaintiffs’ Law Firms Can Prepare for Mass Tort Cases Impacted by COVID-19
There are several ways to prepare a successful COVID-19-related claim. The first step is to review the PREP Act and the HHS declaration to handle vaccine-related claims. Understand that you may not be able to seek relief directly from covered persons.
Also, recognize applicable FDA regulations regarding product labeling and research the related manufacturers, distributors, and wholesalers to get a broad picture of your claim’s merit and direction.
Remember, patience is the greatest virtue in the face of today’s court proceedings. Keeping good relationships with court clerks will likely give you and the plaintiffs peace of mind when faced with delays and rescheduled hearings.
When pursuing a civil claim based on negligence, know what your defendant has done to limit their risk and highlight what they’ve failed to do. These best practices will help you prepare and substantiate potential valid claims.
Unstaffed offices don’t have to deal with piling workloads or backlogged research and trial prep. Instead, choose to work with case management companies as opposed to rehiring and interviewing for open positions.
The best-certified paralegals are hired or contracted by legal support companies. Case Works is one of the few professional case management companies that brings productive workflow back to law firms. Their experience in mass torts, personal injury, and pending virus-related claims prevail over any research available on subscription platforms.
Case Works handles full-scale projects and everyday work without the complexities of finding new hires ready to work in person. When outsourcing specific standard projects and tasks, law firms see savings compared to hiring employees with yearly salaries and possible benefits.
There are a few must-haves to consider when hiring or contracting a company. Strong IT departments and technical staff will keep you from feeling frustrated with technology-related errors. Not every company has the same support staff for their platform’s technical issues.
We come highly recommended for our experience and expertise in mass tort litigation and technical support systems. When you work with Case Works, you have access to our IT staff to seek guidance on varying technical questions. The best tool available in the virtual courtroom is a panel of certified tech-savvy professionals.
Reach out to Case Works today or access our website to get a full breakdown of our comprehensive services before you sign-up. We look forward to partnering with your firm.
