At the start of the COVID-19 pandemic, litigators across the country started fielding calls from clients about issues with which they—both the lawyer and the client—formerly had little experience. What does this force majeure clause mean? How can I make sure my workplace is safe? What do I have to worry about if I get sued by people who claim they got sick from a virus spread at my restaurant?
Even before the pandemic, scientists had long talked about the potential pandemic outbreak of a novel infectious disease. Cases of Ebola, swine flu, and myriad other diseases periodically grace the headlines, raising the issue to the forefront of public interest. However, no illness has quite had the impact on the world—recently—as has COVID-19.
Thus, it seems almost prescient that a pair of intrepid attorneys, Davis M. Walsh and Samuel L. Tarry Jr., had already commenced the compilation of a reference guide for litigators at the intersection of advances in science and the law, entitled Infectious Disease Litigation: Science, Law, and Procedure. The tome runs 372 pages and is broken into 16 chapters that provide insight into substantive and procedural issues impacting various aspects of litigation arising out of exposure to and illness from infectious diseases.
The first two chapters, on the basics of microbiology and epidemiology, are authored by bona fide scientists. The chapter on microbiology lays out specifics of the evolving understanding of microbes that cause disease and provides an intriguing history of the field. It culminates in a discussion of the most recent and advanced methodologies used to explore causation. Similarly, the chapter on epidemiology provides a detailed discussion of how epidemiological studies can be essential in establishing causation.
Both chapters provide lawyers, who may lack a basic scientific background, with the tools and terms necessary to understand complicated issues of evidence and causation particular to the area of infectious diseases. Moreover, these chapters provide an understanding of scientific terms of art that underline how diseases are studied, isolated, catalogued, and tracked, which is crucial in interpreting expert reports and epidemiological evidence.
From there, Infectious Disease Litigation delves into the different legal theories and arenas within which infectious disease litigation may be brought. The book has individual chapters on products liability, premises liability, food-borne illnesses, employment disputes, constitutional issues raised by quarantine and governmental restrictions, contract disputes, and insurance coverage issues. These chapters provide an overview of each area, laying out the elements of claims and defenses, along with a framework of decisional authority that can be applied in many jurisdictions. They further provide a historical perspective on how those theories of liability have evolved, as well as how they may continue to evolve given the current pandemic.
To be clear, this book is not a 50-state review. However, each chapter provides a thorough understanding of particular legal theories under which cases may be raised, how those theories might differ by jurisdiction, and the particular issues of which diligent litigators should be aware. Helpfully, each chapter comes complete with practice pointers that distill key points: an easy reference to help digest and refresh the main takeaways.
With this solid foundation in place, Infectious Disease Litigation then proceeds through chapters dedicated to practical application: discovery planning, HIPAA compliance, jurisdictional and venue considerations, multidistrict litigation, and class actions. The penultimate chapter deals with punitive damage considerations, and the book concludes with a chapter on jury trials. Each of these chapters provides helpful insights that can only be gained through experience, insights that the authors have generously provided. This is the proverbial “stuff” not taught in law school, and, notwithstanding the scientific chapters, brings the most value to Infectious Disease Litigation.
The book, being written during an unfolding pandemic, has managed to stay timely, even as the law and news of COVID-19 has quickly evolved, and has succeeded in being both scholarly and immediately helpful. Experienced and new attorneys alike will take from Infectious Disease Litigation a better understanding of the issues that are likely to impact their cases. A full read demonstrates that this is an exceptional guidebook for issues that will inevitably cross many a practitioner’s desk, if they have not yet already. Accordingly, Infectious Disease Litigation is a true desk reference. It should be included in every litigator’s library.
Grant H. Hackley is a contributing editor for Litigation News.
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