Litigation related to the COVID-19 pandemic is the subject of a recent article penned by 3rd Judicial District Circuit Court Judge Thomas J. Wright and his summer clerk, S. Cole Wheeler. “Pandemic Damages: Who Can You Sue?” looks at several different categories of COVID-19-related lawsuits, examining which have the highest likelihood of success in court. These categories include lawsuits against foreign states, lawsuits against local, state, and federal governments, and private sector lawsuits.
The article was published on the website of the Tennessee Bar Association and reprinted in the Greeneville Sun.
Judge Wright and Wheeler argue that lawsuits against foreign states and domestic governments face a number of hurdles, statutory and otherwise, that may render most of them ineffectual. Foreign states, for instance, are protected by the Foreign Sovereign Immunities Act, while local governments may be protected by provisions like Tennessee’s Governmental Tort Liability Act. There is also the matter of judicial deference: “Judicial review in these constitutional rights cases is highly deferential to the executive branch,” Judge Wright and Wheeler write. “The state’s exercise of police power to protect the health and welfare of its citizens, particularly during a public health crisis, is a legislative and executive function which will not be lightly disturbed by the judiciary.”
They do point out, though, that “suits seeking to vindicate protected liberty interests from state or local infringement” have a higher chance of success than those accusing government officials of “negligence in enacting pandemic restrictions” or failing to enforce those restrictions.
Judge Wright and Wheeler contend that the greatest volume of COVID-related lawsuits will pertain to the private sector.
“Suits in the areas of negligence, breach of duty, breach of contract, discrimination, and wrongful death will potentially reach the courts in large volume,” they write of these private sector lawsuits. “Negligence in failure to comply with state recommended precautions resulting in damages is likely to be the leading cause of action seen in the wake of the pandemic.”
They hold that this will be the case even in the face of legislative efforts to immunize businesses from liability for COVID-related losses.
“Despite the efforts to provide immunity from COVID-19-related suits there are still likely to be an increased number of tort and contract cases related to various aspects of this pandemic,” they write.
S. Cole Wheeler is a 2L at The University of Miami School of Law and served as a summer law clerk for Judge Wright this year.
Judge Wright was first elected to the 3rd Judicial District Circuit Court in 2006 and was reelected in 2014. From 1998 to 2006 he served as Greene County General Sessions and Juvenile Court Judge. From 1992 to 1998 he was an assistant federal defender in East Tennessee, and prior to that he was in private legal practice for several years.
Judge Wright earned his juris doctor at the University of Tennessee College of Law and his undergraduate degree at the University of Arkansas.
He is a fellow of the Tennessee Bar Foundation and has won numerous awards over the years, including the State of Tennessee ADAT Award for Excellence in 2004.
