Personal injury attorneys address liability of mask-makers
In ordinary times, businesses and individuals could find themselves under scrutiny by personal injury attorneys if they were to suddenly begin making a product without any real experience and something went wrong.
But the COVID-19 pandemic is anything but ordinary, which is why some prominent Chicago-area personal injury attorneys say they expect legal leeway for companies that have flipped business models, for sewing enthusiasts in their homes and for others now producing cloth or protective respirator-type masks in an effort to prevent spread of the infection.
Fueling the suburban demand for masks is a new requirement by the state to wear them in indoor public spaces, such as grocery stores, and outside in locations where a 6-foot social distance cannot be maintained. Gov. J.B. Pritzker suggested high-tech masks are unnecessary.
But attorney Thomas Demetrio predicted cases will arise despite the difficulties in proving a defective mask accusation in a lawsuit. He's founding partner of Corboy & Demetrio, which has achieved about $4 billion in verdicts and settlements for plaintiffs in medical negligence, product liability and other cases.
"You are I will be watching TV one night and some lawyer is going to pop up on our screen stating, 'If you've got the virus and you had a mask, call 1-800-CORONAVIRUS,'" Demetrio said. "It's going to happen, but the consumer has to be very, very cautious before hiring a lawyer and have that lawyer be very detailed in, 'How do you expect to prove my case?' And that lawyer is going to be very hard-pressed to answer that question."
To prove negligence led to a COVID-19 infection, Demetrio said, a lawyer would need to show a direct relationship between an allegedly defective mask and someone becoming diseased. For example, he said, if someone became infected with COVID-19 in a medical setting after a nearby co-worker wearing an N-95 respirator mask sneezed, it would be nearly impossible to link the two because people touch surfaces where the virus can live and other variables.
Still, there are potential liability issues for the mask startups, said Arlington Heights attorney Charles Adler, whose firm handled a personal injury lawsuit that was grouped with others in the United States that resulted a $775 million global settlement from the maker of a blood thinner.
Adler said sellers must be careful in how they portray the masks now required to be worn by Illinois residents in certain situations.
"If I open up a home business and I'm making cloth face masks and I'm saying to you, the buyer, these are $5. These will protect you. They're up to standards -- whatever the standards may be -- and they're not, that presents a totally different situation," Adler said.
He added there likely would be a difference in the law between a gratuitous act with no representations and a business making claims about a mask. He said he'd rely on federal Centers for Disease Control and Prevention guidelines on face masks if he were to handle a coronavirus-related claim against a business or individual selling them.
Attorney Patrick Salvi II said he does not expect potential lawsuit problems for individuals and businesses making a good-faith effort to help others by taking up mask making or other similar manufacturing during the pandemic.
"I certainly wouldn't be taking those types of cases," said Salvi, whose firm Salvi, Schostok & Pritchard has secured about $1.5 billion in verdicts and settlements for clients.
But he added a company could face legal ramifications if it decided to further its own interests by haphazardly making personal protective equipment, such as the N-95 respirator masks, that can be shown to have led to people becoming sick.
"I think the key is that folks just act in good faith, do it for the right reasons and don't seek to capitalize on this by pretending to be the good guy, because that's when they'll get into trouble," Salvi said.