Attorney Dan Kagan Authors Op-ed: Don’t Buy the “Coronavirus Lawsuit” Hoax

This opinion piece appeared in the Maine Voices section of the Portland Press Herald: Don’t Buy the ‘Coronavirus Lawsuit’ Hoax

Most Maine businesses are acting responsibly and they are obeying the law – which is the best immunity one can get from a lawsuit. 

Some small-business-owning friends here in Maine confided to me that the news has them scared about COVID-19 lawsuits. The COVID-19 lawsuit hoax has added a needless layer of stress for them and other small-business owners already struggling to balance their business needs with the health needs of our community.

While no immunologist or virologist, I am a Maine trial lawyer, and after 32 years of practice I feel qualified to state there is no looming “COVID19 lawsuit crisis.”  Here are four reasons why.

“Reasonableness.” Under the law, businesses need only act “reasonably”  under COVID19.  The law holds no one to a standard of perfection.  By following the law and applying well-publicized safeguards that the community would consider reasonable, there can be no claim of negligence.

“Causation.” To win a COVID19 lawsuit, a claimant would have to prove that their COVID19 exposure happened at a particular business.  There is no signature tracer for this virus. Almost everyone – and certainly those who are venturing out to shop or dine – will have multiple potential exposure locations.  Nailing down proof of which was responsible for a claimant’s exposure would be exceedingly difficult, which means the lawsuit will likely fail.

“Damages.” According to the Johns Hopkins University Coronavirus Dashboard, with obviously sad and sometimes tragic exceptions, nearly everyone who gets coronavirus recovers.  Typically that recovery takes 2-6 weeks.  To win money damages in a lawsuit, you have to prove enough harm that a court or jury will want to compensate for it.  Without minimizing how difficult that recovery period can be for some, for most people the recovery will not merit a substantial damage award. And for those whose recovery is much longer or more difficult – and for those who die – there are usually other health factors that create uncertainty about whether COVID19 is the culprit (see “causation” above).

“Comparative fault.” Maine law requires that a claimant’s conduct be factored in, too.  Called “comparative fault”, it allows the court to consider whether a claimant’s own conduct was reasonable. If a claimant ignores a business’ safety protocols – refuses to keep 6’ buffers from others while inside the business, for example – the claimant can be at fault and thus denied damages. Similarly, those in high-risk categories have a responsibility to protect themselves, which means avoiding places that, even with safety protocols in place, carry at least some risk of exposure.

These are reasons why I, and all of the trial lawyers I know and respect, will be bringing few if any COVID19 exposure cases.  I hope this glimpse of the truth helps business owners see that the “COVID19 lawsuit crisis” is a hoax.  Most Maine businesses are acting responsibly. They are obeying the law.  By doing so, they are acting “reasonably” – which is the best immunity one  can get from a lawsuit.

This is not to say there will never be a COVID19 case.  Knowing this should help our community feel safe doing business and dining out as soon as the law allows.  Most of our friends who own businesses and restaurants are trying their best to protect us. And the last thing law-abiding businesses and restaurants want is to give blanket immunity – in other words, a get-out-of-jail-free card – to those few lawbreakers who hurt their industry by ignoring or cheating on reasonable safety protocols designed to protect us. Responsible businesses want you comfortable and safe, and lawbreaking businesses who take that comfort and safety away hurt everyone.