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The COVID pandemic is a dream come true for trial lawyers. Although many Americans have already suffered severe economic harm, the plaintiffs’ lawyers see near-guaranteed rewards arriving soon from high numbers of deaths, changing protocols developed in a climate of medical uncertainty and bought politicians committed to preserving their right to file baseless suits.
Healthcare workers have done their best to stem this pandemic under stressful conditions. But in a profession usually guided by meticulously researched, double-blind studies, doctors have been forced into unknown territory.
They’ve had no choice but to employ trial-and-error in the absence of accepted standards. Retrospective mistakes are inevitable, and the unavoidable consequences can be catastrophic.
The litigators are toasting their good fortune. They have already been recruiting clients for months, using the battle-tested strategies that generated gigantic payoffs in the asbestos and pharmaceuticals shakedowns. The laughably renamed American Association for Justice ( AAJ) established a website last summer to help its members jumpstart the new field of COVID related lawsuits.
A New York law firm was among the many touting “national coronavirus lawyers” standing ready to “fight for compensation if you contracted an illness.” Got that? A disease in existence only a few months already has spawned “experts” prepared to capitalize on it. They promise an “illness,” regardless of any negligence or misconduct, can be your ticket to roulette-wheel justice.
By summer, thousands of lawsuits had been filed nationwide against employers, including nursing homes and hospitals deemed responsible for employees and patients contracting the virus. One recent study estimates that 100,000 lawsuits could be filed in the next two years, wiping out up to 1 million jobs and $50 billion in wages.
Litigation costs have an economic effect similar to a business tax, but without the corresponding government revenue. They stifle innovation and growth. They raise the cost of products and services, sometimes substantially, in a manner undetectable to the end-user. Employers are less inclined to hire when each new employee is an additional liability risk.
Despite the threat to our tenuous economic recovery, congressional Democrats have refused to budge on any but inconsequential reforms. Nancy Pelosi refused a Republican proposal to require a negligence standard for COVID suits. It’s fundamentally absurd to have to argue over whether a defendant must have done something wrong to deserve being held liable.
There’s a reason for the Democratic intransigence. The AAJ is a major Democrat campaign donor. Senate Democratic Whip Dick Durbin counts three plaintiffs’ lawyers firms among his top five contributors. The asbestos-tobacco kingpin Motley Rice is House Whip James Clyburn‘s second-largest donor.
Nobody would deny the right of an individual to recover damages when harmed by negligent behavior. But many small businesses today simply can’t afford the cost and risk of meritless litigation defense.
Consequently, most civil suits are settled out of court, an expense that now threatens to bankrupt thousands of rural hospitals, nursing homes, bars, and restaurants. How does that serve the public interest?
Businesses dependent on physically present customers and employees can’t possibly ensure that none of them will contract a common contagious disease, which they could get elsewhere. National firms like Walmart and Smithfield meat processors are additionally threatened by class-action suits.
When lawyers can aggregate their clients and choose the state court most favorable to their side, their suits become horrendously expensive to defend against. They typically generate enormous profits for the lucky law firms and a pittance for each client.
On behalf of all the innocent victims of this racket, Congress and the states need to buck up and demand real reforms. The most helpful would be to enact “loser pays”, a system in which plaintiffs can be assessed defense costs when their suits are not successful.
The rest of the developed world understands it is unjust and unproductive to make defendants liable for enormous legal bills even when they are proved to have done nothing wrong. Meanwhile, plaintiffs have extra incentive to sue, knowing they have minimal downside if they don’t prevail. The hapless defendants are forced into financially and psychologically damaging settlements.
Want real change? Let’s seize the day and end this blight on America.Published in