When the COVID-19 lawsuits arrive in the U.S. courts – as they surely will – one major category will be cases following the asbestos national litigation model, a successful tort claim based on a claimaint’s alleged exposure to a dangerous material (in this case the COVID-19 pathogen) encountered by claimant or claimant’s household member, on defendant's property or place of business. 

Primary targets will include national, regional, and local retailers and service sector entities designated as “essential businesses” that remained in operation during the onset of the pandemic, including national and regional chains in the categories of:

• big box retailers
• garages and gas stations
• grocery chains
• restaurants
• transportation and ride share services
• hardware
• pharmacies

Indeed, any company that remains in operation and is involved in serving the public is a potential target of this prospective mass litigation model. Like asbestos claims, any number of defendants may be sued by a single claimant alleging that exposure to each business substantially contributed to injury or wrongful death and damages.

Understandably, companies are consumed at this time with assuring safe and healthy conditions for their employees and customers. This effort must, however, be paired with a thoughtful assessment of the potential onslaught of lawsuits by claimants seeking damages from getting sick from the COVID-19 virus.

The Asbestos Model

We anticipate that such claims will follow the successful five-step asbestos tort claim model in which the claimant alleges (1) serious injury (2) the only known cause of which is exposure to the COVID-19 virus (3) which exposure occurred on defendants’ premises or property (4) under circumstances where the defendant knew or should have known the hazardous nature of the virus, (5) but failed to eradicate the virus in areas within defendant’s control.

In asbestos, using this simple formula, hundreds of millions of dollars have been paid for wrongful death, medical, and pain and suffering damages. So while the television commercials have not yet hit the airwaves, the lessons of mass tort litigation tell us that it is only a matter of time.

If claimants’ lawyers are successful in applying the asbestos litigation model to COVID-19 claims, the number of claims and the litigation risk presented by such claims would be significant.

Consistency in Repetitive, Multi-Jurisdictional Litigation

Companies that are potential targets should be giving thought now to how such claims will be addressed and how a consistent, effective defense will be crafted and implemented. Lessons learned from the experiences of the asbestos defendants could be a central theme in preparing the COVID-19 defense.

As an initial matter, the first step is major litigation is the availability of insurance coverage. Assuming coverage is provided, the carrier is likely to begin assigning its panel counsel in the various jurisdictions where the cases arise.

But in situations where repetitive, multi-jurisdiction claims are presented in rapid fire within a short period of time, the company must proactively take control of the defense by providing an overall, coordinated defense and by carefully avoiding a piecemeal approach where multiple lawyers and law firms are left to act independently.

The Role of Coordinating Counsel

Insurance-appointed counsel undertake the defense of individual cases, but all of those lawyers need to report to and to get strategic and substantive direction from a single source. Hence the need for coordinating counsel.

Coordinating counsel works closely with company lawyers to, among other things, accomplish the following: 

Top Ten Objectives

1. Develop a successful and compelling defense strategy.
2. Assure that the company is being properly defended in any jurisdiction where claims arise by organizing and directing lawyers retained in individual cases.
3. Gather and manage the relevant evidence and information.
4. Identify and interview key witnesses, including testifying experts.
5. Determine and establish a coherent and accurate company position in response to written, documentary, and corporate discovery to be implemented consistently across all jurisdictions and cases.
6. Assist the company with respect to insurance claims and ongoing insurer defense activities.
7. Advise company management and board with respect to the litigation and its risks in real time.
8. Guide shareholder and public stakeholder disclosures.
9. Manage the significant costs and fees associated with multi-state, multi-jurisdiction repetitive tort claims.
10. Eliminate the confusion and surprise when a company is suddenly caught in the web of a national mass tort initiative.