State Tort Reform Enactments
Recent State Tort Reform Enactments
White Papers & Reports
Recent White Papers & Reports
National and Select State Data
Trial lawyers and aggregators increasingly spend large sums of money on television, digital, and print advertising to recruit new clients for class actions targeting a variety of industries. As the COVID-19 pandemic reached the United States, entrepreneurial personal injury lawyers saw yet another opportunity to profit off of a national crisis.
Early on, a coalition of national law firms specializing in mass tort litigation formed a “Coronavirus Litigation Task Force” to identify targets and theories for litigation. Law firm websites sprung up, inviting people to blame their illness or family member’s death on someone rather than on the virus. Some websites provide a roadmap for suing for contracting COVID-19 at work. Others attempt to prompt lawsuits against nursing homes or others. One website, “Top Class Actions,” uses that familiar language often heard on billboards and late-night TV ads: “If you believe that your rights were violated by a company as a result of the coronavirus pandemic, you may be entitled to compensation.”
From March through December of 2020, 176,053 advertisements for legal services and/or soliciting legal claims mentioning COVID-19 or coronavirus aired in the United States at an estimated cost of $34.4 million. As of February 1, 2021, 8,200 lawsuits related to COVID-19 have been filed in the United States.
Thus far, COVID-19 exposure lawsuits have primarily targeted those that have experienced outbreaks, such as cruise ships (including those who did not become ill) and nursing homes. Lawsuits filed by employees of retailers, meat processing plants, supermarkets, and healthcare providers are also mounting. In addition, some plaintiffs’ lawyers have filed class actions alleging that the business’s operation – a fast-food restaurant, golf course, office building, or shipping facility – poses a risk of transmitting COVID-19 and is a public nuisance. As doors open and operations move back toward “normal,” more lawsuits are likely to target schools, daycare centers, offices, stores, factories, and others.
The following study by the American Tort Reform Association shows the trial bar’s intention to profit off of the pandemic. Plaintiffs’ lawyers have spent millions of dollars on COVID-19 related advertising across the country and will continue to do so. The data shows just how important it is for state legislatures to seek legislative solutions to support health care providers, businesses, and their employees who have been on the frontlines, responding to the pandemic. To date, 21 states and the District of Columbia have enacted some level of COVID-19 liability protections.
Recent polling shows broad bipartisan support for elected officials to respond to pandemic-related issues – rather than trial lawyers filing lawsuits to address such concerns. Key findings show 74% of respondents said the government should support small businesses affected by COVID-19 with grants or loans, versus 6% who said lawyers should help small businesses pursue legal claims instead.
Despite the lack of public support for COVID-19 litigation, law firms advertised regardless. An analysis by the Wall Street Journal found that dozens of top law firms received millions in Paycheck Protection Program (PPP) loans. Some firms spent those dollars to increase their advertising, including U.S. powerhouse personal injury law firm, Morgan & Morgan. This report shows Morgan & Morgan as the top sponsor for COVID-19 legal services TV ads from March through December, airing approximately 70,000 ads at a cost of $10.5 million.
The Public Nuisance “Super Tort”
One can only imagine the scene inside the plaintiffs’ lawyers’ R&D laboratory for expansive liability theories when they created today’s public nuisance litigation: “Let’s come up with a way to sue manufacturers without having to prove product liability,” said one personal injury lawyer. “Wouldn’t it be great if this new legal theory did not even require us to prove fault,” added another. “I know, let’s get rid of causation too! And, while we’re at it, let’s figure out how to bring these new lawsuits on behalf of a whole bunch of people without having to deal with those pesky class action rules.”
Mix a little bit of this and a little bit of that, and bam! A “Super Tort” is born.
That is today’s public nuisance litigation in a nutshell. It is completely unprincipled and a far departure from any long-standing liability law. Under tort law, including under public nuisance theory, a person or company is supposed to be subject to liability only for wrongfully causing harm. In today’s public nuisance lawsuits, though, plaintiffs’ lawyers are attempting to convince judges to discard this basic principle. These lawsuits are attempts to subject businesses to liability over societal problems—regardless of fault, how the harm developed or was caused, whether the elements of the tort are met, or even if the liability will actually address the issue. Their mantra is, “Let’s make ‘Big Business’ pay.”
This report explores several high-profile public nuisance lawsuits being waged in courtrooms around the country today. It explains what public nuisance theory is, how it has long been used, and how plaintiffs’ lawyers are trying to re-engineer it into their Super Tort. What we find is that plaintiffs’ lawyers typically look for a crisis that people want to solve. This can be a hot-button political issue like climate change, a widespread social harm like opioid addiction, or an environmental concern such as contamination in a local waterway. Then, they look to represent a local or state government so they can sue on behalf of an entire community without abiding by class action rules. The lawyers offer to do this for “free,” agreeing to be paid only from money the lawsuits generate.
For elected officials, signing up for this litigation is enticing. They get to tell their constituents that they are trying to solve a local, national, or even international problem and it isn’t going to cost them anything. Who doesn’t want free money? Then, the government-deputized contingency-fee lawyers target businesses—often large, faceless, out-of-state companies—that they can vilify in the media and blame for the problem because their products are associated with the crisis. It doesn’t matter whether the companies actually caused the crisis or are legally responsible for it. In fact, they often sue entire industries to cast blame in broad strokes in an effort to get away from having to prove specific allegations against specific companies.
Those who bring today’s novel brand of public nuisance lawsuits gamble that (1) local judges, who often are elected, will want to be seen as trying to solve a problem for the community and will facilitate the recoveries despite traditional tort law, or (2) the targeted businesses will buckle under the pressure of the media and litigation onslaught and settle the claims just to end the nightmare, regardless of the truth or justice.
The truth is that public nuisance theory is not and should not become a “Super Tort” for making businesses pay for any and all crises. As the next section shows, it is a centuries-old tort with a highly specific purpose, namely to deal with local disturbances like vagrancy. It also does not permit either this Cuisinart-style of liability, where everyone in an industry is blended together, or strict liability for manufacturers merely because their products are associated with a downstream harm.
These crises do need to be solved, but they should be solved the right way. That is why today’s expansive public nuisance litigation should concern us all.
Read the full report: The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance “Super Tort”
Recent Legal Briefs
Expert Opinions are member only content. Please contact us if you would like to become a member.Become a Member
Recent Amicus Briefs
(Co., filed February 4, 2021): Urging the Court to review
(Co., filed February 4, 2021): Urging the Court to review the case because the procedural sequence presented recurs and justifies clarification of the post-judgment interest calculation. The Court of Appeals interpretation relies on illusions and produces a distinction that has no rational justification.
(U.S., filed February 8, 2021): Urging the Court to review
(U.S., filed February 8, 2021): Urging the Court to review whether a lead plaintiff who is injured satisfies the Rule 23 typicality requirement for those who are not. The Court should define the scope of a rigorous analysis for typicality under Rule 23 (A)(3). Ensuring typicality of injury would help avoid problems caused by uninjured class members.