“The Incarnation of David Against Goliath”
Lawyers at the conference were also worried about the upcoming public health crisis, but for quite different reasons. Warner Mendenhall, whose company was one of the organizers of the conference, worries when another disease strikes the government will try to bring back Covid-era restrictions.
“We’re all very concerned about what’s next,” he told me during a break between panels. “We need to get back to where we trust people to do the right thing for themselves and their families…Government needs to play an advisory role, not a mandatory one.
The cases discussed at the conference were divided by gender: employer and education warrants, hospital negligence, civil rights, fraud, medical license and board certification, vaccine-related injury, and censorship. In the panel of employer mandates, New York lawyers Steven Warshawsky and James Mermigis, who has been called “the anti-closure advocate‘ in local media for his fight against state and city lockdowns, spoke about representing businesses and individuals challenging Covid vaccine mandates and lockdown orders, offering advice on courts that could be more supportive of their cases than others.During a panel on civil rights cases, New Jersey attorney Dana Wefer spoke about her cases against test warrants and representing a group of nurses held to get a Covid reminder who declined.
Mendenhall is optimistic about the opportunity — and the money to be made — for attorneys entering this area of law. He says a medical malpractice lawsuit involving Covid treatment, which he admits lawyers are still “figuring out”, could net hundreds of thousands of dollars in attorney fees.
“We think there’s a villa in France for the person who can figure out how to bring an action against remdesivir,” John Pfleiderer, a lawyer at Mendenhall, said during the hospital’s negligence panel. He was referring to the Covid treatment, FDA approved for Covid and recommended by the NIH as a treatment option, which some doctors and lawyers at the conference said harms patients.
Several lawsuits have already been filed alleging remdesivir has been linked to patient injury or death, though none have yet won, Mendenhall said. He said lawyers are working to file a mass tort action.
The wide range of Covid-related tort cases that attorneys are pursuing here and around the country are “hard cases to bear,” says Wendy Parmet, co-director of faculty at Northeastern University’s Center for Health Policy and Law. They “can be successful in certain situations,” Parmet said. “And they’re more likely to attract lawyers, because there’s money to be made.” Many lawyers easily remember the late 1990s, the height of tobacco litigation, when massive settlements made lawyers millions of dollars in fees.
There are several legal defenses that make these cases difficult, Parmet said, including immunity for Covid medical countermeasures. granted by the PREP lawFederal qualified immunity that shields public health officials accused of violations of federal law and state sovereign immunity doctrines, making it difficult to prosecute state officials for good faith discretionary actions.
But even if most don’t succeed, they will have an impact. “It creates doubts” among those being 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 might be necessary to protect public health.”
Coming out of the conference on Saturday, I ran into an attorney outside the main conference room who was from Florida and asked not to use his name to protect his family’s privacy. He said he had just quit his job at a consulting firm after arguing with his employer over not getting vaccinated for religious reasons. He felt like he was ostracized and facing professional retaliation after that and quitting his job on St. Patrick’s Day.
Now he is considering going as a solo practitioner and wants to “do everything I can to protect people” from government mandates. Certainly, he says, there is money to be made in this profession, but for him, “it is not a question of financial remuneration. I don’t think that’s the real reason people are here.
Indeed, not all the lawyers who spoke said that they were successful in their fights. Some have warned that medical malpractice cases, while potentially lucrative, are extremely difficult to win. Others said they were doing it for free, driven by a deep belief that they were on the right side of history against a government that violated the rights of millions of Americans.
“My case against the governor is the epitome of David versus Goliath,” said Bobbie Anne Flower Cox, who challenged New York Governor Kathy Hochul’s quarantine regulations. A state supreme court sided with Cox’s clients; Hochul, a Democrat, is appealing the decision. “If I can do it and win, you can do it and win.”