Causal Proof in the Pandemic

Abstract

In COVID-19 exposure cases, injured plaintiffs seeking compensation face a nearly insurmountable burden of proving causation given the highly contagious nature of the virus, the multiple sources of exposure plaintiffs may experience, and the developing state of the art on effective mitigation measures to prevent viral spread. This essay explores these issues. It examines the difficulty, in COVID-19 cases, of proving causation in different business settings, and compares those difficulties with other tort cases involving clusters of injury, such as toxic exposure and food poisoning cases. It concludes by examining whether the need to compensate COVID-19 victims, especially essential workers, would be better served by enactment of alternative federal compensation schemes, with lower causal proof requirements.

Keywords: Torts, Causal Proof, Evidence, Pandemic, COVID-19