By Victor E Schwartz, co-chair of Shook, Hardy & Bacon L.L.P.’s Washington, D.C.-based Public Policy Group. He is co-author of the most widely used torts casebook in the United States, Prosser, Wade & Schwartz’s Torts: Cases & Materials (14th ed. 2020).

The COVID-19 pandemic has placed a vice grip on our nation. Tens of thousands have died from the disease and well over a million people have been rendered ill. Businesses have shut their doors and millions are unemployed because of ripple effects of the pandemic. One very small group of Americans, however, perceive the COVID-19 pandemic as a potentially substantial business development opportunity: Trial lawyers.

By no means do all trial lawyers see it that way, only a few. Those few, though, have significant power and resources. They can orchestrate litigation on a national scale and procure “experts” to target an even smaller group of judges in “plaintiff-friendly” jurisdictions to bring COVID-19-related tort claims (places referred to as Judicial Hellholes® by the American Tort Reform Association). In those areas, judges may eschew their role as gatekeepers, permitting unscientific expert testimony and unfounded COVID-19 injury claims to be presented to a jury. When the family of a person who died from COVID-19 or a person that became seriously ill testifies, some jurors’ sympathy may overwhelm the scientific facts, leading to large, unwarranted verdicts.

This Legal Backgrounder will help distinguish the valid tort litigation from the baseless chaff. It will show how baseless claims can be defeated in litigation and through reasonable legislative reform.

The Gathering Storm of COVID-19 Tort Litigation 

A wise plaintiff lawyer shared the following observation with me when it became clear that COVID-19 would be a pandemic: “Every pandemic death, every COVID-19 illness, and possibly well-grounded fear of illness is a potential lawsuit.”