Tort lawsuits filed in federal courts increased slightly in the second quarter of 2020, with most of the 173 cases related to the COVID-19 pandemic alleging negligence against cruise lines, according to a report from Lex Machina.
Lex Machina’s first “Torts Litigation Report,” released Thursday, defined a tort as a case in which “a party seeks compensation for loss or harm caused by personal injury or one’s reputational harm to an individual.” The report, which looked at filings from 2010 through Sept. 30, 2020, found case filings increased until mid-2019, after which they dropped, but they began rising again in 2020 with 4,582 cases filed in the third quarter.
That shows that, even with the COVID-19 pandemic, law firms are busy filing tort cases, said Anne Wise Kann, legal data expert at Lex Machina.
“We were kind of expecting there would be more of a downturn during COVID as far as filings were concerned,” she said. “The data does not reflect the dip in filings and the consequential loss of business for law firms that I think a lot of people were expecting to happen, or maybe even thought was happening. There was a little wobble we can attribute to COVID-19, but I think people were expecting a nosedive.”
The report also looked at cases specifically related to the COVID-19 pandemic. Of the 173 tort cases that fell in this category, most were for negligence against cruise lines and nursing homes, followed by meatpacking plants and Chinese government entities. Kann said she expected more to come “rolling in” during 2021.
“I personally expect this is going to continue,” she said. “We have not seen that many tort cases that get this COVID categorization yet, but we’ve got a long way to go.”
In its separate COVID-19 Impact Analyzer, released last month, Lex Machina, a Lexis Nexis company, found that 3,362 new filings through Aug. 31 made up a “first wave” of cases tied to COVID-19. Most of the COVID-19 cases—defined as those that would not have been filed had there not been a pandemic, or circumstances related to the pandemic exacerbated an existing dispute—involved insurance and contract disputes.
The report is separate from Lex Machina’s 2020 Product Liability Litigation Report, which featured lawsuits involving talcum powder and Xarelto against Johnson & Johnson, Monsanto’s Roundup herbicide, Volkswagen’s emissions scandal and The Boeing Co.’s Max 8 aircraft crashes in 2018 and 2019.
Lex Machina divided tort cases into four of the most common claims: the Federal Tort Claims Act, medical malpractice, motor vehicle and premises liability.
It also noted whether the numbers included or excluded “mass tort cases,” defined as lawsuits tied to four specific litigation matters: the Deepwater Horizon oil spill in 2010; the C-8 water contamination at DuPont’s facility in West Virginia; the Sept. 11, 2001, terrorist attacks; and environmental cases tied to a Doe Run lead smelter in Peru.
When excluding those mass tort cases, the number of filings was steadier over the past two years, with a slight uptick from 4,173 to 4,582 cases during third-quarter 2020.
Other trends highlighted in the report were:
- The busiest court for tort filings was the Eastern District of Louisiana, where the Deepwater Horizon multidistrict litigation is pending, which had 7,795 cases. The next highest were the Southern District of Florida, with 4,224 cases, many of which are against cruise lines, and the District of New Jersey, which had 3,192 cases. Other top districts were in Texas, Pennsylvania and New York.
- The top plaintiffs firm in number of filings was The Nations Law Firm in Houston, with 5,166 cases, many related to the Deepwater Horizon MDL. New York’s Napoli Shkolnik was No. 2, with 2,316 cases, and The Gori Law Firm in Edwardsville, Illinois, with 2,097 cases. Other top firms were Cory Watson, Morgan & Morgan and Edelson.
- The top defense firm was the U.S. Department of Justice, which represented federal government entities in Federal Tort Claims Act cases, as well as motor vehicle accidents involving postal workers or medical malpractice cases against Veterans Affairs. Other top defense firms were Delaware’s Maron Marvel Bradley Anderson & Tardy; Williams & Connolly; Liskow & Lewis in New Orleans; and Hunton Andrews Kurth.
- Excluding the mass tort cases, the top five defendants were Walmart and Target, primarily with premises liability cases, and cruise ship operator Carnival Corp. The National Collegiate Athletic Association made an appearance due to the concussion litigation.