The COVID-19 pandemic proves that market forces alone and trickle-down economic policies have failed miserably to change the life of the poor. In an encyclical on the theme of human fraternity entitled “Fratelli Tutti” (Brothers All), Pope Francis mourned that many languish without anything while others dribble in lavishness. In the spirit of St. Francis, the Holy Father dismantled the trickle-down economic theory of neoliberal faith that favours tax breaks and other incentives for big-business, that sustain a misguided belief that somehow factory workers, and those in sacrifice zones miraculously benefit from economic inducements to the opulent. But the poor in Petit Trou, Trou Macaque, Never Dirty and those on the banks of the Poole river have trudged for generations in destitution. The only thing that is trickling down is crystal clear rain water through nail holes in a sheet of rusty galvanize into an empty pot on the floor.
In “The Birth of Biopolitics”, Foucault turns to “the unavoidable text” in which Adam Smith invokes his notorious image of the “invisible hand” — The Wealth of Nations. Foucault challenges Smith’s account that sees in the invisible hand a theological conception of the natural order and argues instead that what remains “invisible” is not a providential guiding hand but an economic device. For Foucault economic rationality is built on the invisibility of the economic and social totality. This invisibility, he argues, does not arise from the imperfection of human intelligence, which hinders humans noticing the hand behind them.
Rather, the collective good is simply incalculable as it results from the blind, self-interested actions of economic agents. By focusing on “invisibility” and not “the hand,” Foucault emphasises the critical role this trope plays in liberal governmental rationality: “the basic function of the invisible hand is to disqualify the political sovereign.” If there is no point from which the totality of economic relations becomes visible, Foucault suggests, then the deliberate attempt to pursue the public good is mistaken.
Five years of change happened in just six months of pandemic disorder. Now we pray for January 2020 to return like an Uber to take us and our luggage back to the decades before today. But like Samuel Beckett’s Vladimir and Estragon, who engage in a variety of discussions and encounters while awaiting Godot, who never arrives, we too must accept the discomforting detail that the freedoms we lost will never return. We may as well be waiting for Godot. We are stuck in an imposed permanent change and “take-home” novel coronavirus lawsuits shall be a novel feature of the Next Normal.
As 2020 slides into and conceivably infects 2021, a foreboding frontier of “take-home” lawsuits over COVID-19 infections from persons never known to have stepped a foot on your premises is budding. The butterfly effect of the tree that fell in the woods without anyone being allowed to be there to hear it gasp for air was triggered by Esperanza Ugalde of Illinois. In August 2020, Esperanza filed the world’s first COVID-19 related wrongful death “take-home” lawsuit, alleging that her mother died from a COVID-19 infection on May 2nd 2020 which her father contracted at the Aurora meat processing plant where he was a worker.
The U.S. compensation system for workers generally makes it challenging to sue for COVID-19. The scheme caps liability for businesses and bars costly lawsuits in return for quick financial settlements to workers, who are not required to prove fault. But Esperanza is not an employee of Aurora and this allows her to sue the company for her mother’s wrongful death.
Novel COVID-19 “take-home” lawsuits import facets of previous “take-home” asbestos cases that can leap over caps on liability for workplace injuries. And like a crowbar, they are prising open a Pandora’s box of costly damages for firms and factories. In 2013, six years before the Coronavirus contagion, a Superior Court in California ruled that Rose-Marie Grigg’s mesothelioma was caused by being exposed to asbestos fibres that were transported into her home in the 1950s on the work clothes of her then-husband who installed insulation for an affiliate of Owens-Illinois Inc. Rose-Marie Grigg, who was eighty-two in 2013 was awarded $27.3 million in compensatory and punitive damages nearly half of a century later.
Miriam Reynoso sued Byrne & Schaefer Inc., a manufacturer of electrical mechanisms in Lockport, Illinois, alleging that company negligence led to her contracting COVID-19 that resulted in “serious injuries to multiple organs.” Reynoso claims that she was infected while caring for her husband Servando who was a parts assembler at the business when he came home sick from work on April 8, 2020. Her claim lists eighteen categories of alleged shortcomings by Byrne & Schaefer, including failing to clean work areas and overlooking workers who said they had COVID-19 symptoms.
The risk of harm due to remote, derivative take-home exposure is climbing. It is now estimated that between 7% and 9% of the roughly 200,000 U.S. COVID-19 deaths are believed to stem from “take-home” infections. It is expected that COVID-19 “take-home” litigation could cost factories owners and businesses up to $21 billion if fatalities in the US cross the 300,000 boundary.
