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INSIGHT: Covid-19 Expert Witnesses—These Specialties Will Be Indispensable

June 5, 2020, 8:00 AM

There’s still a lot we do not know about Covid-19, but its ramifications for the legal system are coming into sharper relief. One thing is clear—the wave of litigation predicted to arise from the outbreak will not come at some indeterminate future date. It is here.

More than 1,100 lawsuits related to Covid-19 have already been filed, even with some courts temporarily closed to new matters. These cases involve a broad spectrum of issues that reflects the breadth of Covid-19’s impact. Though these cases may not necessarily cite novel causes of action, the underlying conditions that gave rise to them—caused by the Covid-19 pandemic—are unprecedented.

The variety of the cases will put both experienced expert witnesses and experts perhaps never before needed in a courtroom in extraordinary demand—and potentially short supply. My team and I have been conducting research and speaking with litigators at law firms across the country to determine some of the issue areas in which expert witnesses will be in great demand.

Here’s what we have found.

Loss Causation

“In addition to the tremendous personal toll, the economic losses arising out of the pandemic will be staggering,” Leah M. Quadrino, a litigation partner in Steptoe & Johnson LLP’s Washington, D.C., office, told us.

The necessity of proving that a loss is caused by the actions or omissions alleged in a civil action is certainly not newsworthy. But when the underlying catalyst for the loss in question is a global pandemic, that proposition can become more challenging and fraught. The attribution of responsibility for alleged losses will doubtless be a hotly contested issue in cases across the spectrum, including coverage for business interruption and other insurance, contract breaches, torts, personal injury, wrongful death, and more.

“Causation and damages issues are frequently complex, even under the best of circumstances,” said Jed Schwartz, a litigation partner in Milbank’s New York office. “But with financial markets, the economy, and the world more generally in turmoil due to Covid-19 and all of its related effects, proving what did or did not cause someone’s loss, and the amount of any loss, will be even more difficult.”

The need for loss causation experts across a huge swath of case types has been echoed by several other BigLaw litigation partners with whom my team and I have spoken. One regional managing partner noted that the wave of insurance cases already starting has put certain experts at the top of their list. Schwartz also added that because of the nature of these disputes, they may need “significant expert analysis earlier in a dispute than otherwise might be the case.”

Workplace Safety

Another area in which experts will be needed is workplace safety standards and practices. What is sure to be a deluge of suits against employers alleged to have tortiously exposed employees to Covid-19 has already begun, and attorneys are wasting no time in lining up experts in safety standards from across numerous industries.

Proposed legislation containing immunity shields for corporations to protect them from lawsuits by their workers are highly unlikely to cover all, or even a majority, of the worker safety suits that lawyers anticipate.

The question of what employers did or did not do—either in the early days of Covid-19 or following the reopening of states for business—and whether those precautions and safeguards were reasonable will certainly be a contested topic that will demand expert testimony.

Nursing Home Standard of Care

With 20,000 Covid-19 deaths in long-term care facilities to date— or one in four Covid-19 deaths in the U.S—the nation’s nursing homes are bracing for a wave of lawsuits. Experts in the elder care space will be needed to elucidate on various subjects, such as when visitations should have been cut off and failures to inform residents or family members of outbreaks.

Facilities are seeking vast immunity in the states where they do not already have some form of a liability shield, but given the tremendous loss of life due to Covid-19 and the outcry from grieving family members, these claims are certainly coming and will be highly charged. Sober, clear-eyed expert testimony will be fundamental to distinguishing unfortunate and tragic but unavoidable events from those that could, and should, have been prevented.

Force Majeure

The nondescript clause included as boilerplate in virtually every contract under the sun is suddenly an area of white-hot contention in agreements across the legal industry. Force majeure claims are proliferating daily as parties in virtually every conceivable vertical claim Covid-19 relieved them of responsibility to perform under otherwise enforceable contracts.

The experts needed for these cases will be as varied as the contracts at issue, but they will need to adequately address whether or not Covid-19 rendered performance under the contract impossible—and, additionally, whether the party claiming the exclusion did everything they could to mitigate the impossibility or prohibitive difficulty.

The courts have never before reckoned with something as disruptive to every aspect of American life as Covid-19. The wave of lawsuits contending with the immense human and economic impact of the virus is already upon us—and is growing by the day. There is no doubt that experts of all stripes will be in enormous demand in the months and years ahead to assist in assessing the merits of claims in countless areas.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

David Solomon is global general manager with GLG Law, a platform that connects lawyers with expert witnesses in complex fields. He was previously with Axiom Global and Bloomberg LLP.