Reasonably Prudent and COVID-19

Hyperbole aside, the impacts from COVID-19 have been pervasive, touching all aspects of our society. Commentators continue to identify just how far and wide these impacts have been, and it will likely take a number of years for us all to truly understand the breadth of the changes being wrought, including in the legal industry generally, and in litigation specifically.

As life science companies and their counsel know full-well, a critical component of tort law in many jurisdictions is the concept of the “reasonable person” or the “reasonably prudent person.” What a “reasonable person” or a “reasonably prudent person”—or in the corporate context, what a “reasonable company” or a “reasonably prudent company” —would do is often a critical aspect of a tort plaintiff’s claims, as well as a critical aspect of the corporate defendant’s defenses. A plaintiff wants to demonstrate that the defendant company did not act reasonably in doing, or in failing to do, whatever it is that the plaintiff claims gives rise to the company’s liability to the plaintiff. On the other hand, the defendant company wants to show the jury that it did act reasonably. And in jurisdictions that allow the comparative fault of the plaintiff to also be examined, whether the plaintiff acted reasonably in either doing or not doing something will also be at issue.

As our country continues to navigate through and emerge from the societal impacts from COVID-19, people are grappling with whether, and to what extent, to conform their behavior to the guidance, recommendations, and regulations in effect on any given day in multiple jurisdictions. For example, recent news reports highlighted what appeared to some to be large numbers of people gathering together to celebrate the Memorial Day weekend in pools and bars. While some people—including, presumably, those involved in those gatherings—believed doing so was reasonable, others did not, fearing that the actions of those involved could result in an increased spread of COVID-19 infections and resultant health consequences in those communities.

In the inevitable wave of personal injury lawsuits that will come out of COVID-19, many juries will be asked to assess whether a plaintiff and/or a defendant acted reasonably in the context of whatever circumstances led to the individual claim at issue in a particular lawsuit. This kind of evaluation is, of course, not new, as it has been a foundation of tort law for decades.

But what is interesting to consider is whether our collective experience in recognizing and responding to COVID-19-related risks, and especially our collective experience in deciding whether and to what extent to modify our behavior in recognition and mitigation of those risks, will have a broader impact on our societal views as to what is “reasonable” or “reasonably prudent.” This may be hard to discern, but in the same way that life science companies and their counsel have had to recognize and adjust to changing societal views concerning, for example, access to information in developing effective communication strategies with juries, insight into whether COVID-19 will cause a shift in societal norms about reasonable or reasonably prudent conduct could be very useful in future litigation.



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