Covid Battle Lines Moving from Emergency Room to Courtroom

The hotel receptionist pointed me through a swish, maximalist lobby to a conference room, where a Saturday morning crowd buzzed around in business attire over coffee and pastry trays. A smiling blond woman appeared suddenly in front of me — right in front of me — and asked how she could help. Her black t-shirt said “Misinformation Superspreader.” Despite the message, she did point me in the right direction of the media registration table.

I didn’t see a lot of other reporters at the Covid Litigation Conference, billed as the first-ever gathering of attorneys swapping tips on the growing practice of Covid-19 lawsuits. The 275 people who registered for the two-day event in late March — attorneys, doctors, activists, and like-minded spectators — came from 38 states, Canada and Australia and paid $600 apiece to listen to a long list of panelists who’ve earned a certain kind of fame, or notoriety, depending on whom you ask, for fighting government officials and the medical establishment. The group energy registered somewhere between a tent revival and the heady optimism of a house-flipping seminar — not quite peak Trump rally, but amped. When attorney Scott Lloyd took the podium mid-morning, the audience broke out into applause before he’d even said a word.

In the world of Covid-19 litigation, Lloyd is one of the heroes of the moment. Two days before, the Fifth Circuit Court of Appeals had upheld an injunction on President Joe Biden’s 2021 order that all federal employees must get a Covid-19 vaccine. It was a big win for the non-profit Lloyd represents — a group whose thousands of federal employee members who don’t want to be told what shot to get. But it was also a win for Lloyd’s emerging legal specialty. Before the pandemic, Lloyd told the audience, his career path was uncertain. “I’m a conservative-leaning civil rights attorney. Where am I going to get any work?” A laugh rippled around the room. “I put it in God’s hands, and all these mandates happened.”

The worst of the pandemic’s death toll might be behind us, but the battlelines have moved from the emergency room to the courtroom. Much like the post-9/11 lawsuits filed against the government by sickened first responders, cases challenging mask and testing mandates, vaccine requirements, quarantine measures, and medical malpractice make up a growing — and lucrative — area of U.S. civil law. “We got 30, 40, 50 calls a day,” said Ralph Lorigo, whose practice sued hospitals in 40 states that refused to give Covid patients ivermectin, a drug the NIH recommends against using. “We saved lives — and we also made money.”

The Atlanta event, a mix of newcomers and activists who have been in fight against vaccination requirements for years, was organized by the Mendenhall Law Group, which has represented small businesses, students and employees fighting Covid mitigation measures, and the Vaccine Safety Research Foundation, which says the Covid-19 vaccine is dangerous. (The Centers for Disease Control and Prevention says the vaccine is safe and that serious reactions to the drug, including death, are rare.)

Children’s Health Defense, a group led by Robert F. Kennedy Jr. that has been removed from social media platforms for spreading medical misinformation, was among the sponsors, as was the Front Line Covid-19 Critical Care Alliance, which promotes off-label use of ivermectin. “This is the greatest medical screw-up in the history of medicine, and maybe the history of the world,” VSRF founder Steve Kirsch told the audience. “Thank you for being in this fight. We will win.”

Whether you’re in the fight or firmly on the other side of it, there is no denying some of the lawyers challenging the government’s right to intervene in Americans’ health are winning. Between March 2020 and July 2022, there were more than 1,000 court rulings on challenges to government orders and regulations designed to control the spread of Covid, according to Public Health Law Watch. Most decisions sided with the government, but in several high-profile cases — and particularly in federal courts — the plaintiffs won.

Early in the pandemic, the Supreme Court blocked California and New York’s restrictions on religious gatherings to reduce Covid-19 transmission, as well as the CDC’s moratorium on evictions. In 2022, it stayed OSHA’s order that large companies require employees to be vaccinated or regularly tested for the virus. Federal courts have ruled against Biden’s Covid-19 vaccine requirement for federal employees and stopped the CDC’s mask mandate on public transportation. On March 31, a federal judge in Texas struck down the administration’s requirement that employees of Head Start programs be vaccinated.

Even with most Covid mitigation measures now lifted, many of those cases are still winding their way through lower courts. At the same time, lawyers are gearing up for a new wave of tort cases seeking compensation for alleged harm those measures have done — a wave, they say, that could rival opioid litigation or the tobacco lawsuits that were argued in courts for decades and which ultimately ended in Big Tobacco paying states more than $200 billion.

“We need to knock down the doors of every court that we can, and if the courts say, ‘We’re closed,’ we need meaningful legislative reform,” said Robert Barnes, who has represented InfoWars’ Alex Jones and taken on several Covid-related cases. “This can never happen again.”

The audience leapt to their feet to applaud.

‘How does this happen in this country?’

Helen Strilec-Schatiloff was one of those cheering audience members. Strilec-Schatiloff, who is 75, is a real estate agent and violinist with the New York City Ballet. She sat next to me at a table near the back of the room. When I asked what brought her here, she said she had flown to Atlanta for the weekend to look for a lawyer.

After she told the ballet company she had no plan to get vaccinated for Covid in 2021, they told her she couldn’t come back to work. They haven’t fired her, but she also hasn’t performed with the orchestra where she worked for 47 years ever since the dispute.

Strilec-Schatiloff found an attorney who charged her $2,700 to apply for a religious exemption, based on her beliefs as a member of the Eastern Orthodox church. But it was quickly denied. Now she’s looking for a lawyer who might be able to represent her and other musicians who have been marginalized for refusing the shot.

“My big question is: How does this happen in this country?” she asked. Raised by a mother who lived in the Soviet Union, she said she grew up hearing about the dangers of authoritarianism. She changed her political affiliation from Democrat to Republican years ago when she felt Democrats were wading into parts of people’s lives where they didn’t belong. But seeing how Washington conducted itself during the pandemic has changed the way she feels about the government “more than 100 percent.”

The shifting mask guidance, the social distancing requirements, the vaccine safety data — Strilec-Schatiloff said she doesn’t buy any of it. “The government makes stuff up, and people accept it,” she told me in a phone call after the conference. “Except for people who think for themselves and smell a rat.”

Strilec-Schatiloff’s experience is a small part of a seismic shift underway in how Americans think about their health and the government. For some, watching leaders like Anthony Fauci on the evening news during the scariest moments of the crisis deepened their sense of connection with the public health officials in charge of keeping America safe.

For others, the opposite was true. The pandemic shook millions of Americans’ relationship with their government, leaving people searching for answers in the blogs and social media feeds of doctors and lawyers like the ones who stood on stage at the Covid Litigation Conference. As public trust in scientists and health officials has declined, a wave of lawsuits and legislation has washed across the nation’s courts and statehouses.

The goals vary. Some plaintiffs seek compensation for a personal injury — a loss of employment or personal agency. But many see their claims in an altruistic light. They want to ensure that when the next virus comes along, neither the president nor federal officials like Fauci or CDC director Rochelle Walensky will be able to force anyone to wear a mask, shut a school or a business, stay at home or get a vaccine.

Federal health agencies know their mistakes during the pandemic — issuing confusing guidance, sluggish and bungled responses — contributed to this historic loss of public trust, and that regaining it is critical to being able to protect Americans during future health threats. The CDC, for its part, is in the throes of an agency overhaul designed at improving the way it communicates with the public and processes information to improve its ability to quickly recognize and respond to health threats.

But the misinformation that has flooded the nation during the pandemic complicates that correction. Both the FDA and Surgeon General Vivek Murthy have launched campaigns warning Americans over the rampant misinformation about vaccines and Covid treatments, among other things. During the conference, a member of the audience submitted a written question during a Q&A, asking the panelists if doctors are trying to “kill” people. Paul Marik, a doctor and co-founder of the Front Line Covid-19 Critical Care Alliance, didn’t endorse that idea, but he didn’t exactly come to the defense of the medical community. Hospital administrations, he said, were consumed with the pursuit of profit. “Hospitals are not there to help people,” he said. Doctors get “brainwashed” along the way.

It’s not always easy to untangle those beliefs from the personal liberty issues that attorneys are taking to court. And just because the individuals bringing these cases are embedded in a wider community that embraces misinformation doesn’t mean their legal arguments can be ignored.

For public health experts who want to see the government maintain a wide range of powers to protect the public from future outbreaks, events like this conference are an alarming development. “This isn’t trivial,” said Lawrence Gostin, director of Georgetown Law’s O’Neill Institute for National & Global Health Law. “If you were to ask me: Is America more prepared now for a pandemic than it was before Covid? I would say no, even though we experienced it and saw the devastation. What we’ve seen is a decimation of public health authority.”

‘The epitome of David versus Goliath’

Lawyers at the conference were worried about the next public health crisis as well — but for altogether different reasons. Warner Mendenhall, whose firm was one of the conference organizers, is worried when another disease hits, the government will try to bring Covid-era restrictions back.

“We’re all very concerned about what the next thing is,” he told me during a break between panels. “We have to get back to where we trust people to do the right thing for themselves and their families… The government needs to be in an advisory capacity, not a mandatory capacity.”

The cases discussed at the conference were broken up by genre: employer and education mandates, hospital negligence, civil rights, fraud, medical license and board certification, vaccine injury, and censorship. In the employer mandates panel, New York lawyers Steven Warshawsky and James Mermigis, who’s been called the “Anti-Shutdown Lawyer” in local media for his fight against the state and city’s lockdowns, talked about representing businesses and individuals challenging Covid vaccine mandates and lockdown orders, offering advice on which courts might be more friendly to their cases than others. On a panel about civil rights cases, attorney Dana Wefer of New Jersey spoke about her cases against testing mandates and representing a group of nurses required to get a Covid booster who refused.

Mendenhall is bullish about the opportunity — and the money to be made — for attorneys getting into this area of law. He says a medical malpractice suit involving Covid treatment, which he admits attorneys are still “figuring out,” could bring in hundreds of thousands of dollars in attorney fees.

“We believe there’s a villa in France for the person who can figure out how to sue on remdesivir,” said John Pfleiderer, a lawyer at Mendenhall’s firm, during the hospital negligence panel. He was referring to the Covid treatment, approved by the FDA for Covid and recommended by NIH as a treatment option, that some doctors and lawyers at the conference said is harming patients.

Several lawsuits have already been filed alleging remdesivir has been linked with patient injury or death, though none have won yet, Mendenhall said. He said lawyers are working on bringing a mass tort claim.

The broad bucket of Covid-related tort cases that lawyers here and elsewhere in the country are pursuing are “hard cases to bring,” says Wendy Parmet, the faculty co-director at the Center for Health Policy and Law at Northeastern University. They “may succeed in some situations,” Parmet said. “And they are more likely to attract lawyers, because there’s money to be had.” Many lawyers can easily recall the late 1990s, the heyday of tobacco lawsuits, when massive settlements made lawyers millions of dollars in fees.

There are several legal defenses that make these cases challenging, Parmet said, including immunity for Covid medical countermeasures granted by the PREP Act, federal qualified immunity that protects public health officials charged with violations of federal law and state sovereign immunity doctrines, which make it hard to sue state officials for discretionary good-faith actions.

But even if most don’t succeed, they will have an impact. “It creates some second thoughts” among those getting sued, Parmet said. “Combined with this political climate that in much of the country is so hostile to health interventions, the fear is that health officials will be wary of doing things that may be necessary to protect the public health.”

On my way out of the conference on Saturday, I bumped into an attorney outside the main conference room who was visiting from Florida and requested not to use his name to protect his family’s privacy. He said he’d just quit his job at a consulting firm after getting into a fight with his employer over not getting vaccinated on religious grounds. He felt like he’d been sidelined and retaliated against professionally after that and quit his job on St. Patricks’ Day.

Now he’s planning to set out as a solo practitioner and is interested in “doing everything I can to protect people” from government mandates. Sure, he said, there’s money to be made in this business, but for him, “it’s not about the financial remuneration. I don’t think that’s the real reason people are here.”

Indeed, not all the attorneys who spoke said they were succeeding in their fights. Some cautioned that the medical malpractice cases, while potentially lucrative, were extremely challenging to win. Others said they were doing it for free, driven by the deep-seated belief that they are on the right side of history against a government that has violated millions of Americans’ rights.

“My case against the governor is the epitome of David versus Goliath,” said Bobbie Anne Flower Cox, who challenged New York Gov. Kathy Hochul’s quarantine regulations. A state supreme court sided with Cox’s clients; Hochul, a Democrat, is appealing the ruling. “If I can do it and win, you can do it and win.”