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Archive for the ‘Coronavirus – Tort and Catastrophic Loss’ Category

Coronavirus Effect? Tort Filings Are Down In 2020, but Products Liability Suits Are Way Up

Posted on: December 17th, 2020

By: Barry Miller

Tort lawsuit filings in federal district courts dropped by 27 percent in 2020 according to Lex Machina, the legal analytics arm of Lexis.

The service compiled statistics for suits filed between January 1 to December 6, 2020, comparing numbers for the same period in 2018 and 2019. At 16,725 this year’s tort filings fell below even the 2018 number of 16,958.

Filings were down 10 percent in all categories but one—Products Liability—which was a massive outlier. Federal courts docketed more than 250,000 products cases in 2020 compared to 53,500 in 2019.

Such filings may be spurred even more by recent holdings that online retailers can be liable for defective products manufactured by third parties but sold on the retailers’ platforms. In August a California Court of Appeal overturned a summary judgment for Amazon when a plaintiff alleged that a battery she bought from an Amazon vendor exploded, causing her severe burns. And in late 2019 Amazon settled a similar case in federal court in Pennsylvania before the Third Circuit could review a 2-1 decision panel decision against it. Both courts found that Amazon was in a better position than the buyer to stop the circulation of defective products.

This comes as CNN argues that the COVID-19 crisis has created two distinct groups of retailers: “those with functioning e-commerce businesses, and those without.” Online sales have taken a steadily larger share of the market in recent years, and the pandemic has accelerated that trend.

Freeman Mathis & Gary’s Tort and Catastrophic Loss practice group can assist retailers and others in the products chain who  face such lawsuits. If you have questions or would like more information, please contact  Barry Miller at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Vaccine Breakthrough: Tort Immunity Under PREP Act Spurs Innovation

Posted on: November 9th, 2020

By: Kevin Kenneally

Recent news of possible imminent availability of groundbreaking COVID-19 vaccines has catapulted financial markets and infused optimism for recovery in global economies and the daily lives of people throughout the globe. These pharmacological and biotech advances were made possible in part by guarantees from the United States government that vaccine makers and distributors will not be liable in lawsuits to any vaccine recipient who suffers complications or illness from the immunization.

The pharma industry has often been targeted for class action and mass tort litigation based on state law causes of action for side effects of its new drugs. Most of the those pharmaceuticals go through a rigorous, structured testing and approval process by the U.S. Food and Drug Administration (FDA). In the face of a worldwide pandemic, however, regulators recognized the need to quickly develop an immunization and vaccine program to combat this life-threatening and easily-transmissible virus. The federal government conferred broad immunity to vaccine manufacturers from products liability suits and tort claims for rapidly-developed COVID-19 vaccines and therapeutics. Established principles of federal preemption in the field of pharma litigation will likely prevent injured victims from pursuing state law tort or products liability actions.  

On March 17, 2020, the government issued notice under authority of the longstanding “PREP Act” (the Public Readiness and Emergency Preparedness Act) to grant immunity from litigation for companies developing drugs or vaccines to battle COVID-19. The PREP Act is the existing federal law that governs the nation’s response to public health emergencies. An administrative declaration was issued in response to the COVID-19 pandemic that expanded PREP Act immunity to companies developing coronavirus therapeutics and vaccines. As a result, future claims arising from complications, adverse effects or death caused by a vaccine or a therapeutic manufactured, distributed or sold by a potential defendant will be barred, except in the case of “willful misconduct.”

Individuals who suffer adverse effects, however, will not be left without a monetary remedy as a result of this immunity granted to makers or suppliers of any drug causing harm. The federal program, known as “CIPC” (the Countermeasures Injury Compensation Program), which provides compensation to victims suffering side effects or complications from vaccines has been expanded to include claims arising from COVID-19 therapeutics and vaccines. CIPC permits recovery of death benefits, lost earnings, medical expenses and other damages suffered by the vaccine recipient or surviving family.

Such immunity from litigation exposure is not a new development in the vaccine manufacturing arena. Vaccine manufacturers and pharmacies have long been protected from tort law claims. The National Vaccine Injury Compensation Program (“VICP”) was created in the 1980s when widespread lawsuits against pharma companies and healthcare providers threatened to cause vaccine shortages and reduce vaccination rates as risk management concerns would lead few entities or health care providers to take part in the fight against preventable diseases. Claims under the VICP cannot be filed in local state or federal courts, but must be litigated in the U.S. Court of Federal Claims in Washington, D.C. and claims are administered by the Department of Justice.

If you have any questions please contact Kevin Kenneally at [email protected].

U.S. Employers Face Threat of Exposure to New COVID “Take Home” Lawsuits

Posted on: October 6th, 2020

By: Sean Riley

Take-home or household exposure lawsuits have been a facet of asbestos litigation for years, allowing mesothelioma victims who came into contact with asbestos that was brought into their homes on the clothing of their spouses, parents, or other household members.

While employers are typically immune from suit pursuant to their states’ respective workers compensation acts, immunity does not extend to claims made by employees’ family members.

As U.S. businesses continue to reopen, many employers now face the threat of take-home COVID claims where workers bring coronavirus home and infect relatives. Recently, the daughter of Esperanza Ugalde of Illinois filed what appears to be the first wrongful death “take home” lawsuit, alleging her mother died of COVID-19 that her father contracted while working at a meat processing plant.

As approximately 7-9% of the 200,000+ COVID related deaths are believed to be caused by take-home exposure, it is anticipated that many similar suits will follow.

If you have questions or would like more information, please contact Sean Riley at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

COVID-19 Related Tort Lawsuits On The Rise? Not So Fast, My Friend

Posted on: September 29th, 2020

By: Gregory Blueford

As summer turns to fall and football returns to fill our weekends, the unwelcome reality of COVID-19 still has a firm grasp on day-to-day life across the globe. Earlier this month, we outlined the HEALS Act’s Tort Immunity Provision under the proposed Safe to Work Act which seeks to curb liability for coronavirus exposure for businesses and individuals. In short, the proposed statute provides that individuals or businesses cannot be liable for alleged exposure to COVID-19 unless the plaintiff can prove by clear and convincing evidence that:

  • The defendant did not make reasonable efforts to comply with “applicable government standards and guidance” concerning exposure;
  • The defendant engaged in gross negligence or willful misconduct causing actual exposure to coronavirus; and
  • The actual exposure caused the personal injury to the plaintiff.

You can read the article here in full here.

Given our society’s penchant to engage in litigation, your first inclination may be: “Well, that makes sense. There must be people suing left and right!” However, an interesting ongoing study shows that may not be the case, at least as far as torts are concerned. Per a rolling tracker created by a corporate law firm, approximately 5,000 COVID-19 lawsuits have been filed this year, with a majority of lawsuits being filed under the broad “Insurance” and “Civil Rights” categories. Personal injury and wrongful death lawsuits from exposure to COVID-19 in a consumer setting are quite limited to date, totaling 20 and 5 respectively, which are less combined than the number of lawsuits filed due to recurring membership fees being charged without services rendered (28). Likewise, only 92 lawsuits have been filed that are categorized as “conditions of employment,” which includes lack of PPE, exposure to COVID-19 at work, wrongful death, and personal injury.

A disagreement, mostly along party lines, exists as to whether the HEALS Act is necessary. One side cites the above numbers as proof that the statute is another method to shortchange workers while the other side surmises that COVID-19 related lawsuits may track asbestos litigation, which has stayed fairly consistent for decades on end. As with most things in the year 2020, only time will tell.

If you have questions or would like more information, please contact Gregory Blueford at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Changes in the Landscape of Civil Litigation in the COVID-19 Era

Posted on: September 17th, 2020

By: Christopher Lee

As economic and social norms have been drastically altered over the course of these last several months in the COVID-19 era, so too has the effect been on civil litigants on both sides and the considerations being made by the parties engaged in litigation. As discussed more fully below,  many disputes will see an increased opportunity for early settlement and compromise, while others will simply encounter delays. Nonetheless, it is essential for all litigants to understand the consequences of the altered landscape to effectively navigate this environment in these difficult times. 

Considerations are now being made on both sides of the table that simply did not exist prior to the pandemic. Plaintiffs now are acutely aware of the potential for insolvency of their litigation adversaries and are now carefully considering whether to settle their disputes earlier rather than later, taking into account the financial position of their adversary as the pandemic continues to affect the economy. Thus, plaintiffs may consider early settlement terms that would have been less than ideal prior to the pandemic given the uncertainty of the defendant’s financial position later down the road. Further hampering the plaintiff’s bar more so than the defense are the social distancing guidelines and state of judicial emergency orders that have reduced courthouse function and access, tolled filing deadlines, and postponed trials and hearings. In a recent study, case activity in the federal district courts is down approximately 41% from 2019. This environment is considered by many as defense-friendly given the difficulty plaintiffs now have in pushing forward matters in the majority of cases and the inability to leverage inherent pressures created by impending deadlines.

As to the defense, the thought of engaging in multi-year, costly litigation without a certain outcome is changing the litigation approach for some of even the mostly financially healthy corporations who are now placing an emphasis on reducing costs and/or eliminating contingent liabilities as quickly as possible.  In these cases, the pressures created by the pandemic may also drive them to settle on terms that simply would not have been acceptable prior to the outset of the pandemic. Also in the purview of defendants settlement considerations is a plaintiff’s liquidity and solvency concerns that may promote early settlement on terms more favorable to the defendants. However, some corporations have decided to take a different approach and are now also looking increasingly to third-party funders to finance litigation costs. “Frankly, we’re drinking from a fire hose,” said Allison Chock, U.S. chief investment officer for litigation funder Omni Bridgeway. “One of the things we’ve been talking about for some time now is the trend in corporations that historically paid for the legal expenses beginning to explore using litigation financing instead. … That is now becoming a more urgent trend.”

Ultimately, the pandemic poses many new challenges and considerations for litigants on both sides of the table. Understanding the changes in litigation leverage, litigation risk, and other trends as they continue to develop will be vital to allow counsel to create strategies and tactics to effectively advocate and represent their clients’ interests in alternative dispute resolution and in the courtroom.

If you have questions or would like more information, please contact Christopher Lee at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**