Current lawsuits against pandemic response could force responsible behavior

While civil litigation can be — and is — abused, in this case it's a deterrent to reckless behavior.



October 18, 2021 - 9:30 AM

In Wisconsin, families are suing two school districts for dropping their mask mandates, claiming it resulted in their children’s coronavirus infections. In Illinois, a lawsuit alleges a meat processing employee brought the virus home from work and infected his wife, killing her. Such actions are still relatively rare, but in a nation that sues over all kinds of disputes far less serious than the reckless transmission of a deadly disease, civil litigation might — and perhaps should — become more common.

It’s not often this newspaper argues that more litigation is just what America needs. But private and public plaintiffs all over the country, including Missouri Attorney General Eric Schmitt, are suing those who follow the science and attempt to combat the coronavirus. It’s an upside-down ethos that screams out for pushback in the nation’s courts.

While civil litigation can be —and is — abused, in concept it’s a valuable tool for both legitimate compensation for injured plaintiffs and, more crucially for society, a deterrent to reckless behavior.

Reckless behavior is what Aurora Packing Co. allegedly engaged in when it had employees working “shoulder to shoulder” at its Illinois processing plant in April. Employee Ricardo Ugalde was infected and gave the infection to his wife, Esperanza Ugalde, who died. The family’s lawsuit claims the company knew there had been a coronavirus outbreak in the plant but failed to warn workers or take preventative measures.

The two lawsuits in Wisconsin claim public school districts there also engaged in reckless behavior by failing to have mask mandates in place for students, leading to infections that several students brought home to their families. Those suits aren’t seeking financial judgments but seek to compel the districts to impose mask mandates.

While it’s true that it can be a challenge for plaintiffs to prove where a particular coronavirus case originated — whether it was from contact at a given school or workplace, or somewhere else — knowledge of the virus’s behavior, along with testing, can often help in tracing the infection to its source. Litigation against tobacco companies over illnesses caused by second-hand smoke faced the same difficulties of proving cause-and-effect relationships, yet they’ve been successful.

Employers and school districts that refuse to employ basic precautions against a deadly disease are, like those cigarette companies, engaging in reckless behavior that willfully ignores medical science results in injury to innocent people. Knowing they might end up facing expensive litigation for that recklessness could provide the impetus for responsible policy changes.

The fact that public officials like Schmitt, Texas Gov. Greg Abbott and others are trying to force those entities to engage in reckless behavior obviously complicates matters. But if America’s legal system still functions the way it’s supposed to, forcing risk onto an unsuspecting public for the sake of one’s own political advancement won’t ultimately stand up in court.