Torsten Kracht, a litigation partner with Hunton Andrews Kurth, began to consider the impact COVID-19 would have on law long before the virus consumed the commonwealth.
“When COVID-19 was spreading in Europe back in February, and it seemed apparent it was coming over here too, I began thinking about what kind of litigation cases would be filed,” Kracht said, who lives in Fairfax but practices in Washington, DC.
In the calm just before the coronavirus storm, Kracht teamed up with Cognicion, a Richmond-based legal technology consulting firm, to develop the COVID-19 Complaint Tracker, a visual database of state and federal litigation involving COVID-19 claims made nationwide.
According to Kracht, the tracker garners complaints from a variety of electronic and manual sources, programmed to pull down complaints made in federal courts “as soon as they get filed” in addition to using keyword searches to suss out COVID-related litigation.
The complaint tracker was publicly launched on April 22, but Kracht’s team has been tracking litigation cases concerning the virus since January.
As of July 14, 3,466 litigation cases related to COVID-19 have been filed in the United States.
“In the beginning, we had to tweak our search methods and realized we were missing a few cases here and there,” said Matt Ronk, director of business development at Cognicion.
Kracht noted that many of his colleagues have taken on the task to comb through cases, as well.
“I think we’ve perfected our search to a point now where we’re capturing mostly everything out there,” Kracht said.
Kracht said the tracker is more than an informational resource; it’s also become a preventative tool for attorneys and businesses nationwide.
“One of the most prevalent uses it provides for our clients is they’re seeing the types of litigation being filed, where they’re being filed and how the courts are dealing with them so they can anticipate what kind of risks they may face and figure out how to avoid risks in the litigation being filed,” Kracht said.
Hunton Andrews Kurth has similarly utilized the tracker to help advise clients on what types of cases they’re seeing arise out of the pandemic and what they should be thinking about in order to avoid risk and liability.
“When we built [the tracker], we weren’t really thinking of ‘how’ or ‘who’ it would benefit. It was just information we felt needed to get out there,” Ronk said. “It’s a benefit to firms wanting to know where most litigation lies… And for organizations that want to understand where the litigation is happening.”
After researching how past pandemics (i.e., cholera and polio) have impacted law, Kracht anticipated that the most common types of litigation filed would be “force majeure” clauses, or contractual provisions that excuse one or both parties’ performance obligations when circumstances arise which are beyond the parties’ control.
However, the most common types of litigation filed have been insurance, civil rights and confinement conditions/prisoner petitions, with 838, 592 and 575 cases filed as of July 14, respectively.
Just one complaint has been filed in two of the tracker’s categories: trade and personal injury.
Kracht said he’s not surprised.
“There’s a big issue of proving causation in personal injury cases,” Kracht said. “I think we’re early on in the curve because this is a relatively new issue. Time will tell how this plays out.”
Personal injury lawyers have expressed similar sentiments across the state. Roanoke attorney Dan Frith said it would require “fairly unusual circumstances” for him to take on a personal injury case related to COVID-19, particularly those arising from nursing homes.
This is largely due to the governor’s April 28 order that provides immunity to health care providers during the pandemic.
“Families [are] calling more and more for help because of bad care, declining health, not enough staff, pressure ulcers, lack of information/communication and death,” said Frith’s colleague, Lauren Davis. “Can we help them by pursuing a lawsuit? The very unsettling answer is probably not, and definitely not without an uphill battle.”
Kracht anticipates more virus-related litigation will be filed in the upcoming months.
“The tendency in most cases isn’t to go out and sue; it’s to work things out and recognize your counterpart is dealing with the same things that you are,” Kracht said. “Everyone is still figuring out how to deal with the pandemic.”
Hunton Andrews Kurth has no plans to discontinue its tracking service anytime soon. If anything, Ronk said Cognicion will continue working with the firm to create additional resources to help legal communities across the country navigate the impacts the pandemic has on business and law.
“We are working constantly thinking about what we can do and the information we can make available to people and help them out during this unprecedented time,” Ronk said.