COVID-19: Impact on Product Liability Litigation

The Coronavirus (COVID-19) pandemic is impacting product liability litigation in many jurisdictions due to limitations on discovery from healthcare providers, modified court procedures and scheduling, and tolling of statutes of limitations. Because the situation is rapidly evolving, product liability defendants should regularly check the most current court and state announcements and orders, and consult with legal counsel to determine the impact of the COVID-19 pandemic on any threatened or pending claims. For your convenience, a summary of key considerations is provided below:

Limitations on Healthcare Provider Discovery

Several jurisdictions have imposed limitations on conducting discovery on healthcare providers due to the need for healthcare providers to be available to assist with responding to COVID-19.

KEY TAKEAWAY: Product liability defendants should work with their outside counsel to stay on top of these evolving limitations on healthcare provider discovery in jurisdictions in which they have pending matters, in order to continue advancing this critical discovery to the extent possible in defending these claims.

To date, the limitations are primarily aimed at restricting discovery from those healthcare providers who can demonstrate that responding to the discovery directly impacts their ability to respond to COVID-19. For example, the New Jersey Supreme Court issued an order [NJ Supreme Court Order] suspending all depositions and appearances of doctors, nurses, and other healthcare professionals who are involved in responding to COVID-19, except for appearances and depositions (i) that are requested by the doctor, nurse, or healthcare professional, or (ii) that are for matters related to COVID-19.

Magistrate Judges in some federal district courts have also issued orders requiring leave of court before conducting discovery on healthcare providers. In the U.S. District Court for the Northern District of Alabama, Magistrate Judge Staci G. Cornelius issued a Standing Order [Judge Cornelius Standing Order] requiring parties to obtain leave of court before seeking any discovery from healthcare providers in her pending civil cases, with certain limited exceptions.Similarly, in the U.S. District Court for the Northern District of Illinois, Magistrate Judge Gabriel A. Fuentes implemented a protocol for depositions of medical providers in the two cases listed below. The protocol prohibits service of a subpoena on a medical provider without a court order, and requires, among other things, that a party seeking to depose a medical provider submit information to the court regarding the proposed deponent's involvement in responding to COVID-19 and the availability of alternative methods of obtaining the evidence.

• Lipsey v. Walmart, Inc., No. 19 C 7681, 2020 WL 1322850, at *4 (N.D. Ill. Mar. 20, 2020);
• DeVine v. XPO Freight Logistics, No. 18 C 1264, 2020 WL 1275087, at *3-4 (N.D. Ill. Mar. 17, 2020).

Modified Court Procedures, Scheduling Orders, and Deadlines

Federal and state courts across the country are modifying court procedures, scheduling orders, and deadlines due to COVID-19. Approaches vary widely by jurisdiction, and include measures such as closing courthouses, postponing proceedings and trials, and conducting hearings and other appearances by telephone. A list of federal court orders related to COVID-19 can be found on the federal court website, and state court orders can be found on the respective state court websites.

KEY TAKEAWAY: In light of these constantly evolving changes, product liability defendants should work with their outside counsel to continue the best practice of routinely monitoring local rules, orders, and preferences of courts and judges when calculating deadlines and in advance of all filings and hearings.

Tolling of Statutes of Limitations

Many states have tolled statutes of limitations for filing judicial proceedings, including civil cases, for certain limited time periods, including Connecticut, Delaware, Iowa, Kansas, Louisiana, Massachusetts, Minnesota, New Jersey, New York, Ohio, Oklahoma, Tennessee, and West Virginia. In addition, some superior courts in California have effectively tolled statutes of limitations by issuing orders designating certain date ranges as holidays for the purposes of computing time.

In contrast, Alabama, Missouri, North Dakota, Utah, and Vermont expressly stated that their COVID-19-related orders did not toll statutes of limitations. Other states, such as Texas and Rhode Island, have authorized judges to extend statutes of limitations under certain circumstances.

KEY TAKEAWAY: Product liability defendants should work with their outside counsel to stay on top of these and any other statutes of limitations tolling orders, both now and in the future, to evaluate the timeliness of claims and any applicable statues of limitations. Moreover, counsel should review and evaluate any pre-COVID-19 tolling agreements in light of these recent changes as well.

We Can Help

Please contact Maslon's Product Liability Group if you have questions or need assistance determining how COVID-19 may impact your defense of product liability claims.