Litigation Trends Analysis
COVID-19 Immunity – from Lawsuits
Twelve states—including Alabama, Arkansas, Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Utah, and Wyoming—have begun enacting legislation to limit exposure to liability relating to COVID-19 lawsuits. The bills already signed into law by the governors of North Carolina, Oklahoma, Utah and Wyoming go far beyond the immunity that several states—including Michigan and Illinois—granted to health care providers in March. North Carolina provides immunity to “essential businesses,” such as grocery stores and restaurants, from liability for any harm caused by COVID-19. Oklahoma, Utah and Wyoming provide immunity to all, as long as they comply with the laws and follow safety rules.
Litigating in a Pandemic
Courts across the country are conducting hearings and bench trials by Zoom and WebEx, but holding a jury trial by video is an entirely different matter. In May, a Collin County, Texas district court held a one-day civil jury trial via Zoom. The trial is believed to be the first ever remote jury trial to take place via videoconference.
In a Miami circuit court, Florida held its first jury trial since March. Eight jurors — who were selected over Zoom but physically present in court for trial — returned a nonbinding verdict in a one-day trial. All persons had to wear masks during the proceedings, and jurors were also given face shields and instructed to wear them when moving from one place to another. Witnesses testified from behind plexiglass.
Requiring parties to conduct a jury trial remotely raises a number of practical and legal issues, including constitutional fairness issues. Practitioners protest that evaluating potential jurors over Zoom is far more challenging, and many potential jurors lack equal access to technology sufficient to participate in a remote jury trial. So far, litigators remain skeptical that longer, more complicated civil trials or criminal trials could be done remotely in a fair way.
COVID-19 Crashes the Bar Exam
While taking the nation’s first online bar exam, more than 700 students sitting for the Michigan Bar got locked out of the test. Examsoft Worldwide, the exam manufacturer, blames hackers. Test takers have all along been questioning the fairness of administering the test this way, given that some candidates don’t have access to reliable internet or private spaces, but now test takers also point to the detrimental impact of the extreme anxiety they experienced not being able to access the testing modules mid-test.
Notwithstanding spiking Covid-19 numbers, twenty-three states still required prospective lawyers to take the exam in person as regularly scheduled on July 29 and 30. Others—including Illinois—have delayed the bar exam and will be administering it remotely or in person in August, September, or October. Utah, Oregon, Louisiana, and Washington have adopted the diploma privilege model for licensing law school graduates, a model Wisconsin has been using for years.
Wrongful death lawsuit filed against long-term care facility
The family of a staffer who recently died from COVID-19 has filed a lawsuit against a Pennsylvania long-term care facility alleging misconduct that led to the spread of coronavirus and the staffer’s death. Wrongful death lawsuits are appearing in more and more industries with increasing frequency.
Employees filing lawsuits regarding COVID-19-based pregnancy discrimination
Employees who have been denied accommodations or furloughs due to the risk of pregnancy complications due to COVID-19 have been filing lawsuits alleging discrimination on that basis. We are seeing cases in California and New Jersey, among others. We will continue to monitor this growing trend.