You may view a video of this recording on the Bolch Judicial Institute website.
David Levi: Hello and welcome to Coping With COVID, a podcast and video series jointly produced by the Bolch Judicial Institute at Duke Law School and The American Law Institute. This series examines the impact of the COVID-19 pandemic on the legal system. I am David Levi, the Director of the Bolch Judicial Institute and President of The American Law Institute.
I am joined today by four wonderful leaders at companies that are on the front lines of this pandemic. Ken Frazier is the CEO and former General Counsel at Merck and Company. Ken is a member of the Counsel of the American Law Institute. Malini Moorthy is Vice President and Chief Deputy General Counsel at Medtronic. Malini is a member of the Leadership Council of the Bolch Judicial Institute and a member of the ALI. Ivan Fong is Senior Vice President, General Counsel, and Secretary for 3M, and a member of the Counsel of the ALI. And Kate Adams is General Counsel and Senior Vice President of Legal and Global Security at Apple. Kate is a member of the ALI and has also been very much involved with Bolch Institute programs.
What a distinguished and capable group you are, and thank you for taking time today to talk with us about the challenges your companies are facing and the many legal issues that you may have to deal with as we work our way through this pandemic. Ken, I’ll start with you. You have said in the past that a person’s zip code is more determinative of their health than their genetic code. Are we seeing this in the context of COVID? And how can Merck and others help to address these kinds of health disparities in the midst of this emergency?
Ken Frazier: Thank you, David. We are definitely seeing this play out in very vivid ways in the context of the COVID-19 pandemic, which is exacerbating health disparities in a number of ways. So first of all, chronic conditions like hypertension, diabetes, COPD, and cancer increase the risk that an infected person will develop the more severe disease manifestations. And these chronic conditions are, frankly, more common in people of color and those in lower socioeconomic classes. New York City publishes a map every day of where the COVID-19 virus is striking more or less across the landscape in New York City, and it absolutely correlates with income. You can see certain areas of The Bronx, certain areas of Queens, certain areas of Brooklyn, et cetera where the number of cases is significantly higher. A lot of it’s because of the crowded conditions, people say, but a major part of it is the underlying health disparities that already existed in our society.
Then moving on, you have people like gig workers and self-employed workers and other lower wage workers who are often uninsured or under-insured before the pandemic, and many are now unemployed or have lost their health insurance coverage. So they’re not even getting the basic care they need for other conditions. Including, for example, vaccinations for pneumonia. Some people feel they certainly cannot afford to stay at home when they’re sick or exposed to COVID-19, so they’re not diagnosed early and they can spread the illness to other family members or contacts. So I think overall it’s really clear that one’s zip code is much more likely to lead to severe illness and death with this.
Levi: And what, if anything, this is sort of more in the area of national policy, but how can Merck and other companies help address these kinds of disparities and the situation more generally?
Frazier: Yeah. So first of all, our main priority right now as it relates to COVID is supporting research and development efforts for antivirals, immunotherapies, and vaccines to help end the pandemic and its devastating consequences. But we also are active in local areas. All healthcare is provided locally. So we are active in a lot of areas, trying to ensure that the people who are seeing these patients are very mindful of what I said at the very beginning, which is that people who show up with chronic conditions like hypertension or diabetes, the risk that they’re gonna get seriously ill and have to proceed to an ICU or a ventilator is much greater. So we have been working on this issue. I’ll just give one example. We gave to the UN a couple years ago to try to do something about maternal mortality. Again, in New York City, an African American woman is, like, 10 times more likely to die than a white counterpart in childbirth. And that has to do with the disparities in how healthcare is provided, as well as those underlying conditions.
Levi: Thank you. Kate, turning to Apple, I’ve read that Apple is getting involved in contact tracing. And I’m sure that there are lots and lots of decisions that surround this decision. It must be very complicated, probably very interesting. Can you tell us how the company decided to get involved with this and what some of the considerations are as you move into this space?
Kate Adams: Sure, sure. Yeah, we’re really just delighted that we’ve been able to work with Google on this project. And this came together very, very quickly as the need to assist public health authorities in identifying exposures has become one of the critical mechanisms to prevent the spread of the virus as we attempt to reopen the economy outside of China. So this came together very quickly. And contact tracing, we also refer to it increasingly as exposure notification, which is probably a more precise way of describing what our APIs will do. It’s something that governments have used for years to help spread the slow of pandemics. And at a high level, contact tracing is the identification and follow-up with people who may have come into contact with someone with an infectious disease so that public health authorities can appropriately notify, isolate, test, or treat them.
So right now, public health authorities rightly are exploring the use of digital technology to aid in these contact tracing efforts. But there have been a number of challenges. And probably the most important one that we’ve tried to solve working with Google is fragmentation and what’s referred to as lack of interoperability across different operating systems. So of course Apple runs, for example, the iPhones in iOS and Google provides the Android platform. There are also things, more technical things underlying this like power and performance that can be impacted when you use Bluetooth, which is a near, a tool that allows you to show close contact as opposed to wider, more disparate contact. It allows you to show more clearly and precisely who has come into contact with who. And when that’s running the background constantly, it drains devices of power. And so it’s not really very appealing to use it for this purpose. Plus there’s also privacy concerns, as you might imagine, with amassing a lot of personal data and centralizing it in a way that others could have access to in an unconstrained way.
So what happened as the COVID-19 situation began to escalate, our engineering team started to think about how we could assist public health authorities in their contact tracing efforts. Their focus was on building an interoperable framework that would allow users to be notified in the event of an exposure, but also building in strong privacy protections, and needing to do that across the Android and iOS environments. Because if you don’t have both of them, really, it’s not gonna be very effective because you’re gonna have the world fragmented into two populations. Essentially, two populations using the two platforms. So we began talking to Google, and that led to the announcement we made about two weeks ago about our notification framework. And I can give a quick summary of the framework if you’re interested. I don’t want to take too much time.
Levi: Sure. Yeah, it would be interesting.
Adams: Yeah. But, so this is how it works. A user installs a public health authority app. And understand that those apps are designed by the public health authorities. They control how they decide what information is relevant from a public health perspective. Apple, speaking for us, I believe Google would say the same thing, we don’t pretend to know that. We’re not the health experts. We’re providing the technology to allow this information to be shared with the user’s consent, and that’s extremely important. It will not work without their consent. Their device would use Bluetooth to beacon a random identifier that changes every 10 to 20 minutes. These identifiers are generated on device, which is a much more secure and private technique to do this. And it does not include location or otherwise identifiable information. The device also receives and securely stores random identifiers that are broadcast from other devices around.
So if we were sitting in the same area, of course, unfortunately we’re not because we’re here all sitting in isolation, but our devices would be letting us know that we were near one another, but in a de-identified way. And then once a day the device downloads a list of the random identifiers for any of the individuals who have used the public health app to report that they have been diagnosed with COVID-19. Now, that’s very important because that is also the choice of the user to provide that information via a public health app. And so, built into the API is the consent requirement for that information as well. And the individual also has to consent to sharing their random identifier with the public health authority.
So the device is then capable, and again, on device, not on a server, of matching those two pieces of information and letting an individual know that they have come into contact with some unidentified person to a degree that indicates they should seek medical assistance. And the app, the public health authority will tell the user what to do at that point. So it’s quite, I think really quite innovative and really a remarkable way of getting important information into the public domain with privacy and security at the forefront.
Levi: Yeah, it sounds interesting. And then I take it you can restrict it in some way, or maybe the Bluetooth does, so that if the contacts are more than, oh gee, I was in the general vicinity of somebody, because that might just freak you out but you wouldn’t really be at any risk.
Adams: Yeah, and what’s happening now is public health authorities across the world are designing their apps with those health indicators built in. And we defer of course to them, what they consider to be a sufficiently proximate exposure and of sufficient duration. And so it might, for example, it would only notify if you are within six feet for more than 15 minutes. I just made that up.
Levi: Yeah, but something like that.
Adams: There will be a parameter that will keep it from being an overbroad communication.
Levi: Well, we might come back to that, because it’s sort of marrying up with what Ken was talking about and what you are talking about. It’s not a perfect match. If the virus is intensely located in certain communities or the impact is in those communities and those communities are not as likely to have iPhones or the Google equivalent, an Android, then we don’t, well, we don’t perfect coverage. And that’s not quite you’re describing anyway.
Adams: Yeah, yeah. And then you’re relying on traditional contact tracing using person-to-person information and communication.
Levi: So let’s turn to Ivan. Ivan, you have such a remarkable career. You have been general counsel at a gigantic federal agency, Homeland Security, and now you’re at 3M. And I think you’re in the best position to give some good advice on crisis management to other general counsels in the corporate and government sectors. What would that advice be?
Ivan Fong: Well thank you, David. And it’s an honor to be part of this distinguished program, as you said. So for better or worse, I have had the privilege, I suppose, of dealing with a number of crises. I would say each one is different, but there may be some elements that could translate more generally.
So, I’ll try to extract a few things that I’ve learned. First, I’d say it’s important to stay calm and collected. A crisis requires clear and strategic thinking, I think that goes without saying, and that’s harder when everybody is stressed because of the crisis. The good news is that generally this is a strength of lawyers and legal professionals, perhaps because of our training or our professional culture or ethos.
Second, one of the first things to do is to stand up a crisis action team. This is a group of people who meet frequently, especially in the early days of a crisis, to make plans and tee up decisions for decision makers. It’s important to get the right people in the room. Not too many and not too few. And one of the lessons I’ve learned is to separate facts from speculation. I once had somebody at the Department of Homeland Security say “salt away the fat,” which is something that is a memorable phrase. I have found that the fog of war is real. And as, I think it was Donald Rumsfeld who said, “Separate the known knowns from the known unknowns.” And you may not even have time to think about the unknown unknowns in the beginning. Part of crisis preparation is to make sure that your crisis action team actually has worked together before. They know each other. There’s a level of trust. And that is a key learning, that make sure you practice and you exercise this team together so that they know how to handle even the basics of remote communication and the complexity of decision making under pressure and with imperfect information. And then finally, this team is tasked with doing scenario planning. Think about what needs to be done immediately and what needs to be done depending on how the facts and the crisis plays itself out.
Third, I would say this is the moment for leadership. Leaders need to establish clear priorities for the organization. Principally, typically it will be protecting the health and safety of people in the organization. I once, one of the former 3M CEOs I worked with said there are two essential tasks of a leader: to confront reality and to provide hope. And I think those are two top of mind things that leaders should do. And then of course it’s important to communicate throughout the organization. There’s going to be a hunger for information within the organization and externally. So communicating with candor to build trust, showing compassion and empathy for those impacted by the crisis. And then finally, sort of personal advice, it’s critical to pace yourself. Some of these crises can play out over many weeks and months, as this one has. So I’ve been reminding our leadership teams to take care of themselves, to take care of their physical and mental health. There’s an old saying. You’ve got to put on your own oxygen mask before you can help others. And so if the leadership team is healthy, I think it will be more effective. So I’ll pause there, and I’m interested in hearing other perspectives on this. Because there are many others on this program who have dealt with crises as well.
Levi: Yeah. Well, it sounds like very good advice. The part about staying healthy and cool under fire. And I do think you’re right that lawyers, to some extent lawyers, they thrive on stress. But certainly trial lawyers are used to coping with stress, and we all have had to learn how to exhale from time to time and know that we don’t do our best work when we’re running around in multiple different directions and fear takes over. We can come back to that in a moment.
Malini, so here’s a topic that’s much on everybody’s minds. People are wondering about supply chains and why aren’t there more paper products? Probably people are more focused on paper products than anything else. But ventilators are very high on the list, and Medtronic makes ventilators. I’m not sure that we’re so focused on ventilators anymore, but we were very focused on them, at least a few weeks ago. And so all of a sudden Medtronic is faced with a world where the demand for ventilators just shoots through the roof. And can you tell us what’s involved when a company all of a sudden experiences this surge of demand, intense demand for a product that, really, it had no reason to expect?
Malini Moorthy: Yeah, absolutely. Thank you, David, for including me with this very august group. During this COVID-19 crisis we’ve gone from being known as a pacemaker company to a ventilator company. I think a lot of the things that Ivan said were very much in place for us, which I think has helped us navigate the issue. And a couple of things that are foundational. One is we have a very, very strong mission. And in fact, I think this has only crystallized and deepened that commitment, its core principle being alleviating pain, restoring health, and extending life.
And then the second is very early on, our leadership made it very crystal clear that our priorities were our people, closely followed by patients and our communities. So the ventilator issue just fit right in that. And with that kind of foundation, I think we were prepared to address it. And I am really grateful that, touch wood, so far, while a lot of people have feared a ventilator shortage, so far it hasn’t materialized in any significant way and I hope that continues to be the case. With respect to ventilators, it really, breaking it down, three principle areas. One is the production, right? Tying into the manufacturing and supply. And maintaining the supply chain. For us it was increasing production. But it wasn’t just about what we were doing. It was also about our suppliers. And in both instances, maintaining employee safety was critical and paramount.
And another part of that is we were also facing shelter in place shutdown orders, really globally. And so ensuring that we fell within the definition of essential services was very critical. Our government affairs team and legal, but really here, our government affairs team has been critical to ensuring that lobbying and dealing with governments to pave the way where needed.
The second is fair allocation. And in the absence of governments really working with each other to ensure that we were fairly allocating ventilators, it really has fell upon us to identify a methodology, data-based, that is based on high risk and high need. And so that’s the second part. And then the third was trying to be innovative. And I think the most innovative thing we did was open sourcing the design specifications and IP in general for one of our ventilators, the PB 560. And we chose that one because it was one that easily could be replicated, essentially. Or people could take those design specs and potentially do something with it. And legal of course played a critical role there, because we developed a permissive license that did what it needed to do to protect Medtronic, but also paves the way for other companies to manufacture and sell the product.
Levi: So interesting. Could we follow up on Ivan’s point that you need a crisis management team that has some experience with one another to get you through a crisis like this? I’d just be interested, Ken and Kate and Malini, do each one of your companies, do they have such a thing, Ken?
Frazier: Absolutely. We have in place a crisis management team which has handled a number of crises. Last year we ended up having a different kind of virus, a computer virus which almost shut down our entire global operations. And so if we didn’t have in place a team of people who have both the familiarity with each other and the ability to work together, but also the empowerment to make quick decisions, we wouldn’t be able to handle this. And so my senior team, the most senior team in Merck, has delegated to a cross-divisional emergency management team many aspects of how we’re going to handle our operations in this pandemic. Also, a lot of the day-to-day communications that are necessary to keep people informed are delegated to that team. And I think if we didn’t have that team in place, if they were not familiar with one another, if they did not have a set of standard operating procedures, we would be running around sort of like chickens with our heads cut off.
Levi: Yeah. Kate?
Adams: Yes, we also, I think as all of these wonderful companies do, have an existing crisis management staff and team. And actually, this is on a scale that we did not obviously anticipate, but we have had quite a few things that we have had to weather from a crisis perspective. Mostly more regional issues. For example, the earthquake in Japan had a big impact on people in that area. I mean, you can think of a lot of examples over the past five or 10 years of situations that had a more localized effect. And so the team has had, unfortunately, some good opportunities to learn to work together. Though again, on something that is less broad-based than this has been. So we have a professional staff that’s responsible for this, but it’s also done at the direction of the functional business leaders. And so they operationalize and try to coordinate the response, but for example, at the end of the day, anything on the legal front would be my responsibility or on the security front. Similarly, financial still roll up to the CFO. But we have people who are trained in the organizational and sort of process aspects of this so we have the infrastructure to do the things that we need to do quickly and with clear lines of authority.
Levi: Malini, I think you said you have such a team.
Moorthy: We do. And I think that preparation and having that in place is critical. Like Kate, and I mean, and I’m sure like for Ken and for Ivan, this isn’t our first one, unfortunately. And we have had both the natural disasters as well as other issues that we’ve had to address. So having that playbook in place I think is critical. I also think with respect to COVID, this has been an unfolding one. We really started to address and react as soon as the issue emerged in China. We’re a global company. We have significant Chinese operations, a large employee base there. So we had seen this. I mean, some of our employees have been sheltering in place now since January. And we have employees who have been displaced. I have colleagues who haven’t been able to return to China since January. So when you think about that, I think we’ve really been addressing it. And at that point itself, increased our bandwidth, for example. I think it would have been impossible to continue to operate in the way we’ve been able to without doing something as might seem, it’s not minor, right? But that people don’t necessarily automatically think of.
Levi: Let’s talk about employees. I know that the safety of your workforce is extremely important to all of you. But let’s focus on looking forward. So, we need to get back to work, whether it’s tomorrow or the next day or the next month or the next six months. Whatever you think the right timeframe is. At some point or another, you’re going to be asking people to come back to work and some of them are not going to be altogether too sure whether your timeframe is the same as their timeframe and there’s steps you’re going to want to take. And I’m wondering how any of you are thinking and planning for this day when people are back to work. Many of your people maybe are at work and so you have some basis for going forward. Any of you want to take that one?
Ivan, are you ready?
Fong: Sure, I’ll start. Every company is thinking about this and making plans. So, I think what I’m about to say may not be unique. But it’s a start. So, I think the overarching principle is that people won’t return to the workplace unless and until they feel safe to do so. Many of our production workers, like others, are not able to work remotely. And so they have been deemed both essential in the fight against COVID-19 and are working, in fact, 24/7 to produce critical medical supplies such as the 3M N95 respirators. We have ramped up production as well. We saw this early, given our experience both with prior pandemics like SARS and H1N1, as well as what was happening in China.
So for those employees, we are practicing physical distancing so that their workstations are farther apart. Alternative work arrangements with barriers between them. Staggering the shifts so that they are not all coming to work at the same time. Obviously stringent cleaning protocols. Making sure they have the right personal protective equipment. With respect to others, obviously we’ve all been, or many of us have been working from home if we are able. And for them we have a framework that envisions a phased return process. Multiple phases, in fact. So groups of employees will return depending on what the situation looks like.
And the framework has a list of sort of internal and external factors. Factors that include health data, right? How is the virus propagating? Or what kind of community spread there is. What are the regional and local government requirements? What are their decrees or recommendations? And third, operational considerations. Can we ensure a safe work environment? Whether through social distancing, personal hygiene practices, enhanced cleaning protocols, self-monitoring for symptoms. So there’s a whole array of things that have to happen before we’re going to allow the first few phases of people to return to the work site. And each site will be different. We’re a global company. All of these factors need to be site specific and localized.
And then you alluded to an important consideration, which are the personal circumstances that I think are going to be relevant. There are some people for whom they have childcare needs. They may have health factors. Their overall comfort level may not be where it needs to be for them to return to the workplace. And for them, we want to make sure that we are providing flexibility and giving people choice. That if you want to continue to work from home and you’re able to do so, I think that’s going to be fine. And we envision a future workplace where the workplace may well be different from what we’ve been used to.
Levi: The intersection of privacy and probably some of the labor laws and perfection here, it’s not easy. And what I’m thinking about is testing. I mean, you want to say, gee, we’re going to take a temperature of everybody before they enter into the workplace or we’ll have periodic testing. But that could become problematic, I suppose. If you tell somebody they have to go home because their temperature is raised somewhat, they may not think that’s fair. I’m sure you’ve got a lot of people working through this stuff from outside counsel. Is testing the most complex part of dealing with employees or are there other issues as well? Anybody.
Moorthy: I think it touches upon it. I think it’s the balancing fundamentally, right? Between what you need to do to protect public health, the health of your employees, with this encroachment on individual freedom, right? And it’s that tension. And I think it is going to be a risk-based analysis. There’s been some relaxation of privacy laws, which has helped. So we actually have, with our manufacturing, already have active screening in place, which includes a certain set of questions and a temperature check. You don’t touch the individual, but done at the forehead. So we already have that in place. But I think for the whole return to office, the big challenge here is we have a virus that people are still trying to figure out the mechanism, and I’m so glad that Ken’s company is doing the research that it is, as well as getting our arms around the contagion effect. And so I think for us, realistically, for those people who do not need to be onsite, we will be working from home for the foreseeable future.
Levi: So Ken, you’re the CEO in the room. And let me just ask you, when we go through a crisis like this which is in some sense existential for the economy, does your philosophical point of view change as you look at your company and the different constituencies that your company has? We have shareholder value. You have your workforce. You have the markets. You have a board. And you’re trying to get through this thing as best you can. Do you change your priorities?
Frazier: Absolutely. Speaking from our perspective, this is an unprecedented challenge for the entire world. And the idea that we’re going to be focusing at this time on short or even long term profitability doesn’t strike me as the right way for a company like Merck to operate. So we are investing a significant amount of resources into research around antivirals, around antibiotics that are still necessary. Because most people are actually dying from bacterial pneumonia. Also importantly around vaccine research. We intend to make those medicines and vaccines to the extent that we are successful. And I’d point out that over 90% of all the medicines and vaccines that we put in humans fail, ultimately. So we’re putting a lot of capital at risk for a lot of gain potentially, but we’re unlikely to be successful in any of these programs.
And so from my perspective, we have to think about society first. We have to think about patients. I think it’s important for our shareholders to understand that and we’ve tried to be very clear that we’re actually going to be very focused on that going forward. But it is an unprecedented global public health emergency.
And I’ll just say very quickly, because Malini made this comment, one of the biggest challenges that we have with constituencies is that governments around the world are not cooperating. Science crosses borders. So we need to collaborate across borders. Our supply chains go across borders. Obviously this pandemic, this virus is not a respecter of borders. And the struggle we often have is in order for us to proceed, for example, with a vaccine program, we might need some IP that’s resident in France or we might need to collaborate with someone in the UK. We’re finding particularly European governments throwing up roadblocks for the research we want to do, saying we will help you get this off the ground, we will help you take this risk, but we want some assurance that our populations come first. As opposed to thinking about it the way that we would think about it, which is certain populations across borders. Let’s say, for example, healthcare workers or those people who are at greater risk of severe illness or death, we would prioritize those people first. But we’re now struggling governments that are really getting ultranationalist in this time.
Levi: That’s such an interesting point. And I think Malini referred to it as well. Dealing with government during a crisis like this must be just so complicated. Because even just domestically, you have the mayors, then you have the governors, you have the president, you have the legislatures, and then you have probably a lot of other officials who try to get into the act. And they all are capable of at least asserting extraordinary powers during a health emergency. And you might wake up and find that they think that they can take over your production. And I think the president actually has that authority.
So how do you, and here we are isolated at home, how do you think that, and Ken, you just said it’s an international problem as well. How does a company deal with these possibilities that you might wake up the next day to find out you’ve been nationalized or something in effect? Maybe not in the United States. Maybe in someplace else. How do you cope with it? Is that part of your crisis management or is it some other team? Anybody.
Frazier: So, absolutely it’s part of our crisis management. The most important thing for us to do is to help governments, whether they’re international in nature, whether it’s the federal government. And the federal government has a very important role to play, for example, in ensuring that we have the kind of surge capacity we’re going to need to make vaccines for hundreds of millions if not billions of people. We have to help them understand how our business runs to ensure that they don’t put artificial roadblocks. We’ve seen this happen with respect to certain companies like, with respect to 3M, with respect to General Motors, where the government comes in and says we’re going to help you guys be inspired to do what you were already inspired and incentivized to do, which is to save lives. So for us, it’s really about making sure that they understand just how difficult it is for us to move from one stage to another in research. We’re being pressured to develop vaccines at an unprecedented speed and to manufacture and deploy them at an unprecedented scale. And we have to remind people that we have to ensure that those vaccines are proven to be safe and effective before we inject them into millions of people.
– I was just gonna–
– Ken, yeah.
– Oh, go ahead.
Fong: Ken, you’ve described my life for the last six or seven weeks. As you know, there is in the United States a law called the Defense Production Act, which Congress passed soon after the Korean War that gives the president broad authority, as Ken said, to order necessary defense materials, defense articles, needs to be met by private industry. So while it’s not nationalizing, it is something that many companies have now felt the brunt of. And as Ken said, we have all along ramped up production. This is a global issue. The fact that the demand for N95 respirators far outstrips the supply. So it’s not as if we were sitting around waiting to make more of these critical medical supplies. We very strongly doubled our production and will be investing to add capacity and double again in the next 12 months. So this is something we take very seriously. It is a top priority.
And as Ken said, I think the challenge of working with government partners to achieve shared missions is something that really requires sort of an extra layer of leadership. Because not only are you making decisions under pressure with incomplete information, but there’s the glare of the media. Not only social media, but just the 24-hour news cycle and managing a situation where there are multiple stakeholder interests. And focusing on sort of not only true to your values, right, do the right thing, be a responsible corporate citizen, communicate with candor and empathy, but also have that sixth sense of what does this do to our reputation as a company? What are the optics? How can we look around corners to make sure that our well-intentioned actions are not misconstrued or twisted in the worst case to be used against us? So it is very difficult. And our goal remains to serve our customers, serve shareholders, serve other stakeholders. But just the degree of difficulty and complexity during the current crisis, I think it’s just, as others have said, it’s unprecedented.
Moorthy: I was just going to add, right, is that reputational management piece is very much part of this and the role of the communications team. And I work very, very closely with them. And it’s both the internal, because you also have to communicate regularly with your own internal employees, but that external management of stakeholders is significant. And with respect to the government, again, it’s that engagement. It is demonstrating the partnership. But I do think the lack of understanding of the scientific issues, the technology, right? I mean, our ventilators, I mean, our acute care, critical care ventilator has something like 1500 parts to it. Right? And it’s a global supply chain. And so on the one hand, you’re trying to address this demand that feels impossible, and I think is where supply outstrips demand. On the other hand, you are facing increasingly nationalistic orders. Which makes sense, I will say. From a containment standpoint, I get it. Right? We have to manage that locally. I get it. But from a care and treatment and a solution standpoint, we really have to be thinking globally.
Levi: All of this will be clearer a few years from now when we’re able to look back on it. But it has occurred to me that one of the dangers here is that we get so focused on the virus, and I think maybe Ken kind of alluded to this. There are a lot of other associated conditions that we can actually treat like heart disease and diabetes and things like that that may go untreated. And you could end up in a situation where, I don’t want to say more people, but a lot of people die or become really sick from illnesses that we can treat because they’re too scared to go to the hospital or because everybody’s attention is diverted to COVID, which maybe we’re less able to treat in the severe cases. I hope that’s not what is happening. Are there other challenges out there? I mean, that we haven’t talked to. If you had to pick one, maybe that kind of keeps you up at night, is there something else maybe that we haven’t touched on? Anybody?
Frazier: Well, I can tell you one thing that I worry about, and that is that this particular contagion, this particular virus I think is natural in its origins. But I’ll go back to just a few years ago when we had concerns about anthrax spores. And our government was very much focused on bioterrorism preparedness. I think the one lesson that we have to learn from this is how quickly a virus like COVID-19 can spread around the entire world. And if we don’t have in place the right kind of antivirals, vaccines, antibiotics, antifungals, we can be very much subject to those kinds of lessons. I guess what I’m trying to say is this is an evolutionary struggle between our species and these microbes that have been around for billions of years. And it’s not clear who wins this in the long run, and we have to be prepared. We can’t just scramble when we learn about the next infection.
Fong: So David, I have been thinking about a couple of challenges that I think are longer term. The umbrella point is that in a crisis, it’s easy to manage the urgent and it’s important to remember we also have to do the important as well. And I think three things that are sort of longer-term consequences that I don’t know how will play out. First, I alluded to this earlier. I do think the long-term impact to people’s mental health and wellness, we are just starting to appreciate. I think with the increased isolation, with unemployment, the economic impacts, many people would say that there will be increased instances of depression, of severe anxiety, of substance abuse. And I think long term, not just for our profession, but for our society generally, we will see some long-term consequences.
A second thing that I worry about, many of us have long promoted and supported diversity and inclusion within our organizations. And I think with the crisis, my hope is that we don’t put that on the back seat, that we continue to advocate for diversity and inclusion. And I think the intersection of inclusion and wellbeing and mental health is an important lever, that as we start returning to a new normal, making sure that we keep our eye on inclusion, belonging, making people feel welcomed, valued in their organizations. I think that’s going to go a long way to making sure that people are back to positive mental energies and mental health.
And then the last point that really I think is the hard one, this is going to have a very lasting impact on the way people think about the economy. I think many, I don’t want to say orders of magnitude, but like people who lived through The Depression, I think it’s changed them in ways that we won’t really appreciate until many decades from now. That there will be things that we will do as a generation that our children and grandchildren will look at and say, why do you do that? And we will say, well, it’s because when you live through a pandemic, this is how we, why do you wash your hands so much? Well, that’s just something we learned to do.
Adams: David, just taking your question and maybe thinking about it from the positive perspective. I do think there’s some things I hope will come out of this for us as humankind. One is a newfound appreciation for our frontline people who are doing critical work in this time that might have in the past been considered mundane or menial activities. Our people that are working in grocery stores. People who are picking up the garbage. People who are doing, coming out of their homes and not socially isolating in order to keep the fabric of society from unraveling. All the first responders, of course. The medical profession, which I think has been underappreciated, deeply underappreciated in many ways.
And so I do, my optimistic side of me says that we will learn from this and have a deeper respect. And for teachers, for example, as parents are now homeschooling and realizing, oh my gosh, it’s so hard to be an educator. The other vector that has been alluded to in some of the conversations about government is, I think that we’re developing a much-needed respect for facts and for science. And the respect that Dr. Fauci, for example, has commanded is one example of this. People are gravitating toward those who can speak with authority, with knowledge, with candor, and as a beacon of truth and a path forward in a very ambiguous environment. And I hope that that becomes something that we embrace for the long haul and not just in the immediate term.
– Well those are–
– Can I just follow up on that, David?
– Please, yes.
Moorthy: Which is, I agree. And I also think that the role of data, artificial intelligence, predictive analytics, in particular in healthcare, which I think we have been behind in, I think will now accelerate. I think people recognize its importance and I think there will be some balancing and maybe leveling again in terms of privacy, right? Where how can we anonymize the data? What can we do to leverage it, but still protect individual privacy? I think there will be some balancing there. We’re also seeing, I do think there’s going to be some transformative things in healthcare in terms of telehealth, remote monitoring, things like that. I share some of the concerns that, actually all of the concerns, that Ivan has raised. I will say there have been some silver linings for us in this, because this has been the great equalizer in the professional environment. I totally recognize that while we’re in the same storm, we’re all in different boats in how we’re experiencing it. But what I mean is in terms of, I feel we’ve accelerated in the inclusion space. Because, and we’ve also accelerated our global outlook. Because by having everyone work virtually, it really has level set us in many ways.
So I think there is some positive outgrowth. And I think it’s also going to transform business travel. I think the fact that we can function as seamlessly as we have, I don’t mean to suggest it hasn’t been difficult, but I have been surprised at how easily people switched the way they operate. Certainly for our company. And that it’s been relatively seamless. It doesn’t mean it hasn’t been difficult, but I think, so this is going to have some transformative effects in how we work.
Levi: Well, you get the last word. And I think what all of you are saying is that we can’t afford any longer the kind of divisiveness that we’ve had in our society. It’s kind of a, maybe it’s a luxury we can’t afford to make a big deal out of little issues when you see these big picture kinds of threats, as Ken said, actually to our species. But more in the short term, just an appreciation of what everybody does. And you see this in a crisis situation. I experienced it when I was a judge picking juries. When you hear from people just from every walk of life, you realize how valuable everybody is to the shared endeavor of trying to build a fair and just society and raise your family and just lead a good life. And so many people do that at all levels.
So thank you, all of you so much. We’re so lucky to have leadership like you involved in dealing with this terrible pandemic and we’re so proud from the ALI and the Bolch Judicial Institute to have the four of you as friends and colleagues. The challenges you face are staggering, but hearing your thoughtfulness, your vision, your determination, your innovativeness, you’re meeting these challenges. And as Ivan says, you’re looking at reality, but you’re also giving us some hope and confidence in the future. And I wish you all good luck. I hope you get plenty of sleep and exercise. Thank you for all you are doing to help us fight this terrible problem, to make our communities safer and healthier.
This has been Coping With COVID, a podcast and video series produced by the Bolch Judicial Institute at Duke Law School and by The American Law Institute. I’m David Levi. Thanks for joining us.