By Jeff Overley and Y. Peter Kang

Law360 (May 17, 2022, 2:59 PM EDT ) COVID-19's death toll in the U.S., which on Tuesday surpassed 1 million lives, has been a dark backdrop to wide-ranging litigation over failures to protect thousands of older Americans, extraordinary assertions of government power and a historic overhaul of the nation's health insurance system.

The number of deaths hit seven figures Tuesday afternoon in a database maintained by Johns Hopkins University, which has tracked coronavirus casualties since the pandemic's early days.

Here, Law360 takes stock of key rulings during the public health crisis and important legal fights that are still in flux.


"Terrible Tragedy": Nursing Homes Bear Brunt of Virus

COVID-19 has killed more than 200,000 residents and staff of U.S. nursing homes, according to the Kaiser Family Foundation, and those facilities have been swarmed with suits alleging they fueled deadly outbreaks by failing to implement proper safety protocols.

The bulk of the lawsuits are centered on negligence that allegedly occurred during the first two months of the pandemic. In one of the most significant cases, a Massachusetts veterans' home operated by the state agreed on May 12 to pay $56 million in connection with an outbreak that killed scores of its residents. Gov. Charlie Baker last week lamented the "terrible tragedy," and a McDermott Will & Emery LLP probe in 2020 faulted a series of "baffling" decisions.

The lion's share of litigation, however, has been tied up in federal appeals courts, with only a handful of matters settled for mostly undisclosed amounts. Nursing homes have fought to keep cases in federal court, which they view as a more favorable forum than state courts.

The nursing homes have largely focused on two issues: whether the Public Readiness and Emergency Preparedness Act preempts the claims and whether the so-called federal officer removal statute warrants keeping the cases federal. So far, the nursing homes have been getting steamrolled in the circuit courts, which have held that there's no good reason for state-based tort claims to proceed in federal court.

In October, the Third Circuit became the first appellate court to reject the nursing home industry's forum preference, and in the following months the Ninth Circuit and Fifth Circuit reached similar conclusions. Oral arguments have been held in pending cases before the Eleventh Circuit and the D.C. Circuit, and the Seventh Circuit will hear arguments on June 2.

The meatpacking industry is facing similar suits stemming from the COVID-19 deaths of workers at processing facilities in Iowa, Texas and elsewhere. Tyson Foods, for example, unsuccessfully argued to the Eighth Circuit that because it was operating under the direction of the federal government, the disputes belong in federal court under the federal officer statute. Tyson recently made the same argument before the Fifth Circuit in a similar case involving Texas workers.

"No Everyday Exercise of Federal Power"

The mandatory use of coronavirus vaccines — clearly proven to protect against serious illness and death from COVID-19 — has emerged as perhaps the pandemic's most crucial and controversial policy measure. The mandates come in many forms and have spawned countless lawsuits centered on weighty questions about public health, individual liberty and government power.

One of the most significant rulings occurred on Jan. 13, when the U.S. Supreme Court's conservative bloc rejected the Occupational Safety and Health Administration's requirement that employees of large businesses be either inoculated or tested weekly.

"This is no everyday exercise of federal power," the majority held. "It is instead a significant encroachment into the lives — and health — of a vast number of employees."

On the same day, in a separate ruling of comparable significance, the high court's three liberals were joined by two conservatives in upholding a vaccination rule for health care workers issued by the Centers for Medicare & Medicaid Services.

"Ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm," the high court wrote.

Many other courts have ruled on other jab-or-job mandates at the federal, state and local levels. Those cases have often hinged on medical and religious exemptions, judicial deference to elected officials, and allegedly arbitrary standards that required vaccines for utility workers but not professional athletes.

On a related front, the mandatory use of face masks — divisive since the early days of the pandemic — also sparked bitter battles in which the policymaking moves of municipal bureaucrats were described by opponents as akin to decrees of authoritarian regimes.

One of the biggest rulings in that arena occurred on April 18, when a Florida federal judge — formerly an associate at Jones Day and clerk for U.S. Supreme Court Justice Clarence Thomas — blocked a federal mask mandate covering planes, trains and other public transportation.

Businesses Chafe at Regulations

As with vaccine and mask mandates, government efforts to promote social distancing have sparked intense litigation replete with references to tyranny. Elected officials have frequently found themselves described as dictators, with "edict" being one of the more popular pejoratives for challenged policies.

Some of the more prominent cases have featured a Pittsburgh-area diner called The Cracked Egg calling the government "tyrannical," a New Jersey gym determined to exercise its constitutional rights and a New York guitarist seeking to shred live-music restrictions.

In other situations, public officials have been in the ring attacking one another, duking it out in tests of state authority and local control, as when El Paso County's top executive attempted to enforce a curfew despite opposition from the Texas attorney general.

Rulings of immense importance have occurred in state courts, as when the Supreme Judicial Court of Massachusetts backed Baker, the state's Republican governor, in a case brought by two hair salons, a tanning salon, a boxing gym, two restaurants, two houses of worship and a family entertainment center, among others, over coronavirus restrictions.

But decisions of the U.S. Supreme Court have naturally attracted the most attention. The justices initially tended to uphold pandemic safety measures but gradually became less accommodating, The shift appeared to reflect an evolving understanding of coronavirus risks as well as an evolving ideological balance on the high court.

Early in the pandemic, for example, the Supreme Court narrowly rejected challenges brought by religious groups in Nevada and California against restrictions on large gatherings. But in late 2020, the high court ruled the opposite way in a challenge to limits on religious services in New York.

"Instrumental" Health Law Sees Existence Threatened 

On March 2, 2020 — when COVID-19 was not yet officially a pandemic, and the U.S. had confirmed barely 100 cases of the disease — the Supreme Court agreed for the third time to hear a case aimed at toppling the Affordable Care Act. By the end of the month, the rampaging virus had killed 5,000 Americans, painting a dark backdrop for litigation that threatened to eliminate health insurance coverage and benefits for tens of millions of people.

Democratic state attorneys general and House Democrats led the law's defense against Republican state attorneys general after the Trump administration refused to fight the case — an extraordinary capitulation that prompted revolt among U.S. Department of Justice trial lawyers. The Democratic backers warned that kicking vast numbers of lower-income people off their health insurance, and ending near-universal consumer protections such as a guarantee coverage won't be denied based on preexisting medical conditions, would be unwise in normal times and borderline catastrophic in a pandemic.

"The act has ... been instrumental in our nation's response to the COVID-19 pandemic," the Democratic attorneys general wrote when briefing began in May 2020.

Their Republican counterparts would later argue that "[Democrats] defend the ACA as good policy, citing the current pandemic" but also insist that "policy considerations cannot create Article I [legislative] power."

That was a reference to congressional taxing power, which the Supreme Court had previously cited to uphold the ACA's individual mandate to maintain health insurance. The Republicans argued that the mandate had become unconstitutional after Congress eliminated the mandate's tax penalty, and that the mandate's importance meant the whole ACA also had to be struck down.

On June 17, 2021 — when the pandemic death toll stood at 600,000 in the U.S. — the high court issued a 7-2 opinion that rejected the case on standing grounds and didn't address the merits. During the case's pendency, ACA coverage via Medicaid or private insurance ballooned to more than 30 million from 20 million.

--Additional reporting by Brian Dowling, Chris Villani, Linda Chiem, Madison Arnold, Shawn Rice and Ben Zigterman. Editing by Jill Coffey and Brian Baresch.

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