You might have read that genetic sequencing can track down genetic changes such that you can identify the “infector.” A careful review of an article claiming this shows that genetic sequencing alone can’t do diddly.
“Even with all of the advances in sequencing over the past decade, our ability to conduct genetic investigations is only as good as our public health infrastructure. The most advanced technologies are useless without ongoing disease surveillance.”
One non-peer-reviewed lay article does say genetic sequencing could identify the infector. But the original scientific article detailing the use of the technology in a cholera epidemic contains a limiting disclaimer – requiring both genome sequencing and classic epidemiologic track and trace.
Legal liability
Theoretically, states could amend their laws to make suing “the infector” actionable, but this possibility does not exist currently. Courts don’t really like new causes of action. Even if they did – you would be hard-pressed to find a lawyer to take on your case.
Generally speaking, for someone to be held liable, they first have to have trespassed on a legal duty and breached the standard of care or violated a law (i.e., done something ‘wrong’). We have no laws mandating vaccination right now, and mask mandate laws are sketchy. Could you prove that not vaccinating was wrong “by a preponderance of the credible evidence” - keeping in mind that the decision-makers would be a jury of six or twelve people from your community, maybe half of whom don’t support vaccination? Maybe.
Assuming you can surmount that hurdle, you’d then have to prove, more probably than not, that the person you claim infected you was the actual source. Will the genetic-tracking methodology work? Probably not in court. There is no established technology that can prove that I got my COVID from you, as opposed to any other individual I was exposed to on the same day.
In short, there is no legally admissible scientific testing that can pinpoint one individual or another in identifying the infectious source to the appropriate degree of certainty. While the technology might exist in theory, to be legally admissible, it would have to be validated for COVID. [1] And, of course, the burden of proof is on the one bringing the lawsuit.
Even if you could find a legally admissible test, passing the Daubert [2] test for scientific reliability and relevance, those tests cost lots of money. And the tests themselves don’t walk into court. Practically speaking, you now need an “expert” witness to introduce them into evidence. And that costs even more money (we’re talking in the multi-thousands here).
Let’s say you have the money to spare – and you’ve overcome these legal hurdles, you still need a sample from the alleged “infector” to test.
How do you compel the suspected “infector” to give you a swab-sample to test?!
You can’t.
That’s right. You can’t. You can’t walk into court and get a subpoena – or take any other similar action in a civil case such as this. So, there is no way you will be able to prove ‘causation’ – the third element required.
Humor me, you say. Let’s say you could. And the tests come back positive. All’s good, right?
Not so fast.
There are defenses to tort claims.
One is comparative negligence. The first question the defense asks in your cross-examination is: “Were you vaccinated.?”
If your answer is no, you probably will be held to have contributed to your condition. Even if the vaccine is not 100% reliable, a 60% success rate would enable a jury to say with a reasonable degree of certainty that vaccination would have protected you – either completely or at least enough so you wouldn’t have had a serious enough disease to file a lawsuit. [3] In other words, you can’t blame someone else for your negligence.
What if you can’t be vaccinated- you’re a kid, say. Then the defense of assumption of the risk might kick in. You could have stayed home. You could have worn a mask. You went out – or your parent allowed you to go out – and assumed the risk of catching COVID. Either you assumed the risk, or your parent can be held responsible for letting you go out.
Where’s the humanity here?
All this business of suing over a COVID infection misses the point. Tort suits for damages occur AFTER harm is done. Vaccination is done to prevent disease. That prevention has three effects:
- you don’t get sick,
- the hospitals don’t get overrun (in turn preventing more deaths), and
- there are fewer live bodies in which the virus can evolve and morph into an even more dangerous mutant.
Prevention, societally speaking, has a far greater positive impact than a lawsuit, which by its very nature not only taxes the public health system but the legal system as well. Suppose swaths of society refuse to vaccinate for a serious disease. In that case, the question is not can the government compel vaccination – the answer is surely yes (4) the question is, should that “swath” get vaccinated?
That question is much harder to answer. But it is that question that must be confronted head-on. The diversionary tactic, “don’t worry, you can always sue,” is legally, medically, and morally wrong. It also bespeaks a lack of humanity.
Do yourself, your loved ones -- and society -- a favor, get vaccinated:
COVID kills people. Even if you could overcome all the legal hurdles, the legal threshold for bringing an action, the testing reliability, the sampling requirement, the defenses, one question remains:
How much money could ever compensate you for the death of a loved one?
There are limits to our freedoms: Most states don’t sanction assisted suicide – or euthanasia- precisely because society does not confer unlimited self-governance -- even over our own bodies. We don’t allow people to take illicit drugs – even if it’s only their own body that they are poisoning.
To belong to a democracy, paraphrasing John Locke, allows individuals the advantages of what a government provides that individuals themselves can’t. This includes defense from foreign enemies, a court system to resolve disputes; police power providing safety; sewage, and waste disposal facilities. In return, we relinquish certain “rights” when these negatively impact – or might imminently impact in the future - the rights of others. We also should recognize that failure to vaccinate is a threat to national security – we now know that much anti-vax rhetoric is seeded on social media by the Soviet Union and China.
And even if you don’t agree with the law, respect it, please. For when the rule of law breaks down, so does society.
[1] Most courts would require two studies published in peer-reviewed journals - something we might expect long into the future, if ever.
[2] Daubert v. Merrell Dow is the hallmark case that places on judges the onus of acting as gatekeepers to exclude junk science from the courtroom. It is used as legal shorthand for making sure that only reliable and relevant evidence is considered. Various tests are employed, including the consensus of scientific opinion, the prevalence of peer-reviewed studies.
[3] Mild cases are not court-worthy. As Judge Cardozo once said, “the law has no cure for trifles.”)
(4) State and local governments surely have that power (see Jacobson v. Mass), but in some circumstances, the federal government does as well, including in certain workplace scenarios.
Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice; all information is for general informational purposes only. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.
