Plaintiffs’ Goal: Many Solvent Defendants with Deep Pockets
Manufacturers, product distributors, parts or component suppliers, sales representatives, and others should not be surprised to see their names in a product liability lawsuit. Depending on the jurisdiction, claims may be brought against parties in the chain of commerce.
Plaintiffs’ attorneys are filing and advertising for product claims related to
- failing to warn about the presence of COVID-19 in manufacturing or distribution facilities;
- sanitizers, protective gear, and disinfectants misrepresenting the protection against viruses, germs, and bacteria;
- products claiming to protect against COVID-19;
- dietary supplements and other foods allegedly curing, treating, or mitigating COVID-19 and its symptoms;
- drugs and vaccines claiming to treat COVID-19 or lessen its impact;
- tests claiming to detect COVID-19 or related antibodies;
- products claiming to boost immune systems;
- exposure to COVID-19 from contaminated devices or packaging; and
- failing to warn about potential side effects or impacts caused by drugs or devices.
These claims could be brought by individuals, by companies, or in a mass tort suit or class action by groups such as healthcare workers, employees, and consumers.
Governmental actions are also on the table. The U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) have issued warning letters to companies for selling fraudulent COVID-19 products. The FDA and FTC indicate that “warning letters are just the first step.” A list of FTC warning letters and actions are available on the Coronavirus Response: Enforcement Actions page of its website.
The Next Step: What Types of Claims Will Plaintiffs Bring?
Lawyers certainly do not have a crystal ball and they recognize that novel tort claims will likely emerge from the pandemic. We can, however, lean on our experience to understand the types of claims most likely to be brought. Product liability claims generally focus on whether a product is “defective.”
Lawsuits related to COVID-19 may include allegations that a defendant
- defectively designed a product;
- defectively manufactured or assembled a product;
- sold or marketed a product with insufficient labeling, improper instructions, or inadequate warnings;
- acted with negligence;
- fraudulently misrepresented a product’s characteristics or abilities;
- breached an express warranty;
- breached an implied warranty, such as the implied warranty of merchantability or implied warranty of fitness for a particular purpose; and
- is strictly liable for a defect that made a product unreasonably dangerous.
Plaintiffs’ “shotgun” tactics quickly increase costs and emphasize the need to proactively protect against litigation. Their goal is to accumulate a sufficient volume of claims—regardless of merit—to become an economic threat and attempt to force settlements.
