My dad’s 95. We spend a lot of time talking about the way things were and contrasting that to the way things are now.

Over his life social norms have changed tremendously.

During one specific conversation we both decided that there’s a lot of negative judgment when we look back at decisions.

There’s been a big movement to remove statutes of people who owned slaves.

The list has expanded to include people like Washington, Jefferson, Madison and even Ulysses S. Grant (who did a lot to end slavery).

We judge these people based on current values. What may have been within social norms at the time is now regarded as reprehensible.

I’m not saying that’s right or wrong. I’m just saying that’s the way it is.

The same principles apply in terms of safety.

We all remember Sally Draper in the dry-cleaning bag.  Not a big deal at the time.  A very big deal now.

The same is true with smoking.

And asbestos.

We look back at these things and think “how could people have been so stupid?”

Maybe they were uninformed.  Or maybe they unethically ignored unknown risks.  (Rumsfeld’s Known Unknowns.).

Regardless, it seems criminally irresponsible now to let your kids play in plastic bags, for doctors to promote smoking or for manufacturers to market asbestos tiles to housewives.

Actions in the past are judged by today’s standards. That applies to safety. And I think it’s going to apply in cases involving COVID-19.

Defendants are going to argue “but it’s the novel corona virus, how could we have known?”

But defendants responsible for aging or unhealthy populations (cruise ships, nursing homes, etc.) should have been ready for the next wave of corona or other infectious disease.

 

The first recorded pandemic occurred in 430 B.C. during the Peloponnesian War.  The disease passed through Libya, Ethiopia and Egypt; it crossed the Athenian walls as the Spartans laid siege.

 

Various plagues afflicted the early world.  In 1350 the Black Death moved from Asia to Europe and killed one-third of the world’s population.

 

In 1918 the Spanish Flu spread around the world and caused 50 million deaths.

 

In 1957 the Asian Flu started in Hong Kong, spread throughout China and then entered the United States.  It caused 1.1M deaths globally and 116,000 deaths in the United States.

 

In 2003 we encountered SARS (a coronavirus).  It spread from the animal to the human population in China and then migrated to other countries.  It was seen by global health professionals as a wake-up call to improve outbreak responses.

 

Following SARS, the world faced Ebola (2014-2016) and MERS (2015-Present) (MERS is also a coronavirus).

 

Before COVID-19 emerged, it was known that pandemics (involving coronaviruses) existed and would continue to occur.

 

And maybe even more importantly, defendants need to appreciate that juries are going to judge their actions in the late winter and early spring of 2020 based on what we know now. That potentially spells disaster for cruise lines and nursing homes.