Wendy Testa (Partner-Philadelphia, PA) collaborated with Andrew Rossi (Associate-Philadelphia, PA) on "Wrongful Death Liability & COVID-19 Claims," published in Bloomberg Law in October 2021.
The pandemic presents a unique set of circumstances for courts and potential defendants to consider as actions stemming from COVID-19-related deaths are pursued. Specifically, employers and medical/long-term care facilities have faced, and will likely continue to face, lawsuits brought by individuals, including administrators and executors of decedents' estates, who allege that a family member passed away after contracting COVID-19 at these locations.
As COVID-19 wrongful death actions are initiated, the statutorily required element of causation will be a central point of contention in the disposition of these cases. Failure to establish causation against an employer or a facility by a preponderance of the evidence results in a bar to recovery on wrongful death claims. Wrongful death claims generally are derivative of the decedent's injury or rights, so a claim exists only if the decedent would have had a viable claim had the decedent survived. This raises additional questions as to whether a wrongful death claim as a result of contracting COVID-19 in the workplace or in a facility can be maintained, as the decedent would be unlikely to have had a claim had they survived.
Wendy and Andrew explore defending wrongful death claims stemming from COVID-19 and conclude, "Millions of people have contracted COVID-19 through no fault of their own, and as such, it is difficult to establish a close nexus between the illness and the direct fault of another person or entity. Consequently, plaintiffs seeking damages for the death of a decedent who purportedly was infected with COVID-19 in the workplace or at a facility face a high bar to recovery due to the burden of proving that the defendant's conduct caused the resulting death."
In cases where a plaintiff claims their decedent contracted COVID-19 in the workplace, the connection between the death, the injury and the location may be too attenuated to impose liability on the employer. Foreseeability of injury or death in connection with the defendant's acts or omissions would need to be established to proceed with a wrongful death claim under the circumstances.
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