Deere, Gaus & Odigwe: Public Nuisance, COVID-19, and the Re-Emergence of the "Super Tort"
For decades, plaintiffs’ lawyers, local governments, and advocacy groups have tried to use public nuisance litigation as a tool to force businesses and industries to pay for alleged harms stemming from widespread public health crises or coerce changes to otherwise lawful business practices (regulation through litigation). The COVID-19 pandemic is no different. As the virus rapidly spread throughout the country, these groups set their sights on segments of the economy particularly vulnerable to the disruption caused by the outbreak of an infectious and ever-changing disease. Unfortunately, these cases represent the continuation of a larger, more concerning transformation of traditional public nuisance litigation into a powerful weapon for plaintiffs’ counsel and public advocacy groups. Moreover, it is likely that these claims will not vanish as COVID-19 dissipates. As the American economy recovers, businesses across the country should learn from the successes—and failures—of past public nuisance litigation to prepare themselves for similar claims in the future.
