In 2017, an estimated 11 million people worldwide died of sepsis, the body’s reaction to an infection. Even before the current pandemic, facts such as this were highlighting the growing pace of communicable disease transmission as more people were traveling more often in a world more connected than ever. In 2019, Samuel Tarry Jr., L’94, began working with a colleague on a book about the legal issues they saw arising from localized outbreaks and regional epidemics. The project was seen — rightfully, he acknowledges — as “kind of a niche book” by his publisher at the American Bar Association.

Tarry is an obvious fit for the subject matter. A partner at McGuireWoods based at its Richmond office, he is a member of the firm’s trial practice steering committee and a past chair of the product and consumer litigation department. For nearly three decades, he has represented clients in matters ranging from public health litigation to product liability and food contamination suits. His co-editor, Davis M. Walsh, also a litigator at McGuireWoods, added further expertise in medical product liability litigation and other areas.

As they merrily typed away on their niche project, “the world changed in a month in March of 2020,” Tarry said. “We didn’t realize until the COVID outbreak, when we started talking about quarantines and lockdowns, how much litigation gets driven and created. I say that agnostically. Litigation is better than beating each other over the head.”

Their publisher had one main question for them: “Can you guys draft any faster than that?”

They could. The book, Infectious Disease Litigation: Science, Law, and Procedure, came out in February. Six additional Richmond Law alumni, all colleagues of Tarry and Walsh at McGuireWoods, are among the book’s 32 authors.

“Some of them wrote entirely from home,” Tarry said. “Some wrote from the office, but the work experience had changed. Everybody had a different work experience than they would have had if we had published a year earlier, and they had different personal perspectives.”

The following are just a few takeaways from Spider-written sections of the book.


#1 - You might think you know how vast the litigation issues are. You probably still don’t realize just how vast.

Although Tarry and Walsh were already working on a book about infectious disease litigation, even they were surprised by the legal implications that became apparent once the full force of the pandemic and the response to it hit.

“In 2020, as COVID-19 overwhelmed governments and significant segments of the population and paralyzed many courts, we became painfully aware of the magnitude of risk carried around in tiny bacteria and viruses,” they write in their introduction.

Once the pandemic overtook normal life, the publisher urged Tarry and Walsh to expand their outline. They added chapters on topics such as employment law and insurance. They also worked with authors to expand chapters already in the works. For example, when plaintiffs began filing lawsuits against cruise lines, Frank Talbott, L’13, revisited and expanded his chapter on punitive damages. The entire book, Tarry said, “became deeper and richer.”

In an interview, Tarry said he thinks that we’re still only beginning to understand what a post-COVID-19 society might look like. “Human behavior has changed, it’s continuing to change, and it’s not going to go back to the baseline after we get the vaccine,” he said. The sniffling co-worker who stays at the office will likely go from being admired for their work ethic to being considered a workplace safety issue. Businesses will likely be held to higher standards of cleanliness, and even the fist bump may be here to stay. As our attitudes about our interactions with one another continue to shift, so too will the legal landscape governing what constitutes reasonable conduct.

#2 - Know your science.

The book opens with chapters on microbiology and epidemiology. This up-front placement underscores how important it is for practitioners to have a solid grounding in the applicable science.

The scientific method and advocacy can seem like clashing mindsets, Tarry said. A scientist designs a test and gathers evidence to rigorously but dispassionately evaluate a hypothesis. An attorney emphasizes evidence that best fits their argument and seeks ways to explain away what doesn’t. Zealous advocacy isn’t just a strategy; it’s an obligation.

But a smart practitioner will not see them in conflict. “When you have to convince a judge and a jury, you have to have credibility,” he said. To have that, you have to know the science. “The best legal argument about a case is one where you’ve thought like a scientist.”

Just as the law is always evolving, so is the science. Ongoing education is a must.

#3 - Product litigation standards are likely to continue shifting, so know your jurisdiction.

Many of the book’s authors worked on their chapters at a time when they were not only thinking about the effects of a pandemic but living through them, too. Margaret Bowman, L’13, was in an even more interesting personal situation. She was at home with her new baby girl, immersing herself in a subject every new parent worries about: product safety issues.

“When you’re a new parent, you’re pretty anxious and you’ve got all kinds of things running through your head, a lot of what-ifs,” she said. “I expected I would be that way as a parent, and it turned out to be quite the opposite.” Lawyers, by their nature, are trained to imagine a worst-case scenario, “but I also know in my job that a worst-case scenario is very unlikely to happen.”

This idea — how we think about risk — is at the heart of an ongoing shift in product liability thinking that Bowman believes the pandemic will accelerate. For decades, lawmakers and courts have generally moved away from a strict liability standard to a negligence standard. The latter standard places more emphasis on the actions of the defendant, particularly whether it acted reasonably given what it knew.

Take, for example, a company that manufactures personal protective equipment, such as masks. It’s been selling them for years when a new virus strain emerges with unknown transmissibility characteristics. “Imagine someone is wearing those masks because they think they will protect them, but of course the company didn’t test for [the new strain] because it didn’t know about it,” she said. Under a strict liability standard, a suit might be possible, she said, but it becomes a much tougher case to make under a negligence standard. (She also notes that under either standard, causation would be a very tough hurdle to clear.)

Her advice to practitioners navigating this shift? “You’ve got to figure out the landscape of the jurisdiction’s liability laws,” she said. “Craft your case so that it’s aligned with the law as it is and where it is heading, not where it was 20 or 30 years ago.”


#4 - Have a plan for HIPAA compliance.

Pandemic-related litigation requires attention to HIPAA compliance. HIPAA — the Health Insurance Portability and Accountability Act — protects individuals’ medical records and other personal health information and establishes safeguards for the protection of this information. Developing “a HIPAA compliant discovery plan at the beginning of any such litigation and before sensitive documents are exchanged” is absolutely essential, write Etahjayne Harris, L’18, and two co-authors.

The costs of not putting protocols in place to ensure HIPAA compliance can be steep. They offer the example of a small medical practice in Utah that paid $100,000 as part of a settlement involving, among other problems, its failure to ensure security measures.

For practitioners, key practice points include planning HIPAA compliance measures early, vetting vendors to ensure their compliance, encrypting data at every stage of its use, and using technology to automate the identification and redaction of protected information. These steps will ultimately reduce both risks and costs.

#5 - A Pandemic tests the limits of governmental power.

While federal, state, and local governments have extensive powers to act during a health crisis, citizens do not lose their constitutional rights during one. These two truths can lead to disputes about government overreach. The devil, as always, is in the details, write Brandon Santos, L’07, and his co-authors in a chapter on quarantines and other governmental restrictions.

Issues have arisen in everything from governors’ attempts to close state borders to the strings attached to emergency government relief doled out to the private sector. Terminology can be contentious, such as what constitutes an “essential business.” Businesses have generally been able to appeal governors’ designations that are adverse to their interests. However, it is often “unclear who reviews the petitions or the standards used to determine whether a business falls under one of the essential categories,” Santos and his co-authors write.

In the area of criminal justice, courts that delay proceedings risk running afoul of the constitutional guarantee of a speedy trial. The COVID-19 outbreak has also raised questions about confinement, as prisoners across the country have petitioned for release from high-risk infectious environments.

In general, the authors write, the government has wide latitude to decide how to respond to an ongoing outbreak, as long as it avoids differential treatment that infringes a fundamental right. Even so, businesses should be cautious about responding quickly to measures such as the lifting of regulatory burdens. They could return quickly once the emergency passes.

#6 - Be ready for multidistrict litigation, but cast a skeptical eye on a class action strategy.

As a pandemic spreads, it becomes more likely that plaintiffs will bring similar allegations containing common questions of fact to courts in multiple jurisdictions. This common focus on the defendant’s conduct “makes outbreak litigation a prime candidate for an MDL,” write Sylvia Macon Kastens, L’17, and three co-authors in a chapter on multidistrict litigation.

Take the example of a complaint filed in April 2020 by two plaintiffs against a cruise line, alleging that it ignored significant risk to passengers as the pandemic spread. Hypothetically, the authors write, other passengers on other cruise ships might also sue other cruise lines based on essentially the same set of facts. “It could arguably serve as a basis for forming an MDL,” they write.

Just because an argument can be made for consolidation does not mean that a practitioner should make one. Consider the pros and cons. Litigating in one forum is cheaper and more efficient than in multiple forums at every stage, from strategic planning to discovery to settlement negotiations. It can, however, incentivize new claims and force plaintiffs to work together who may not want to. Weak claims might be easier to contest separately.

Once a case is transferred to an MDL, stay organized to benefit from the MDL structure. “MDLs always have many different moving parts,” Kastens and her co-authors write.

Class action certifications, on the other hand, will be less likely, particularly when rooted in personal injury claims, write Bethany G. Lukitsch, L’98, and a co-author in their chapter on class actions. They note that class action certification is rare in personal injury cases generally and may be very difficult in pandemic-related cases involving economic loss. The reason is that class action cases have to clear hurdles of standardization in class treatment that do not impact MDLs.


#7 - None of it matters if the jury doesn’t understand exactly what happened.

Cases arising from infectious disease outbreaks are less likely than other cases to go to jury trials, but when they do, a jury’s ability to understand complex issues will play a significant role. Causation is likely to be particularly thorny in pandemic-related litigation, as there is often a combination of factors in play. For example, a case involving a customer who contracts the coronavirus after dining at a restaurant raises a host of uncertainties. Did the restaurant take reasonable precautions? Is a fellow diner more culpable? Did the infection even occur at the restaurant? The issues are complex, and expert testimony will be necessary to clarify them.

“Our brains are big enough to understand that three or four or five different things can be true at once,” Tarry said. “They’re not often either this or that. I think that the COVID experience is helping people realize that even where there is fault, there are often multiple chains of a fault. ... It’s not just defending whether your client was perfect and somebody else was to blame. We have to help juries fully understand what actually happened, that there are typically multiple links and a causal chain.”


#8 - Calculate the punitive damage.

Generally speaking, the law channels Richard Nixon’s accusers during Watergate when assessing punitive damages: What did the defendant know, when did it know it, and what did it do with that knowledge?

During an outbreak of infectious disease, the first question turns on whether a defendant was aware of, or should have been aware of, a risk of harm related to its actions. If so, did it conceal or ignore the risk, or did it take steps to prevent harm?

The bar for acceptable response is not high, according to Tarry, Talbott, and co-authors of the chapter on punitive damages. “The care demonstrated does not need to be successful or even vigorous — there just needs to be a modicum of effort on the defendant’s part,” they write. The standard is whether the conduct was reprehensible. “Society [does not] normally gain from punishing those who, after being alerted to an outbreak, seek to protect the public,” however imperfect their efforts, they write.