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Republicans insist on Covid “liability protections.” What does that mean? (Hint: It's terrible)

5 min read

Throughout all the recent legislative battles about economic and stimulus relief to combat Covid-19, Republicans have made one non-negotiable demand: protections for businesses against Covid liabilities and related lawsuits.

Given this centrality, and it’s troubling implications, what does this actually mean? Regrettably, I see little to no explanation in public reporting (or from Democrats generally).  So, provided below is a summary of the federal legislation as demanded by McConnell and Republicans — which in the interests of expediency is drawn largely from a summary provided by the prominent Skadden Arps law firm.   The issues are legal and technical, but relatively easy to understand and extremely important.  It is criminal that no public discussion of these issues is happening.

So, please read this summary description and weigh in below on what you think is reasonable, non-reasonable, grudgingly acceptable, or unacceptable.

Federal Cause of Action — The proposed bill would make claims for damages due to Covid-19 exposure an exclusive federal cause of action that could only be brought in federal courts.  In other words, no state court claims, lawsuits, or precedents.  [Generally speaking, federal courts are considered more competent, uniform, conservative and (arguably) pro-business as compared to state courts.  For example, most personal injury claims, medical malpractice claims, or asbestos litigation are brought in state courts.]

Higher Standard of Proof — The proposed legislation would impose a higher standard of proof on Covid plaintiffs: the “clear and convincing” evidence standard vs. the ordinary “preponderance of proof” standard.  The difference between the two is a bit abstract but it is often expressed as the difference between 51% (preponderance) vs. 70-75% (clear and convincing).  The preponderance standard is the default civil rule, but the clear and convincing standard has been adopted for other claims, such as (almost universally) fraud claims and (often) medical malpractice claims.  The burden of proof standard is often outcome determinative for many cases.

Elements of the Covid Claim — The proposed statue also defines the elements of a Covid liability claim:

a plaintiff asserting a coronavirus exposure claim to prove by clear and convincing evidence that: (a) the defendant business, educational institution or nonprofit organization did not make “reasonable efforts” to comply with applicable mandatory government health guidance; (b) the defendant engaged in gross negligence or willful misconduct; (c) those wrongful actions actually exposed the plaintiff to the coronavirus; and (d) the exposure actually caused the plaintiff to contract the coronavirus.

There are an awful lot of crucial, vague, pro-defendant, legal defenses packed into this clause, including: (i) what are “reasonable” efforts to comply with the law? (ii) a higher standard of gross negligence or willful misconduct — which basically requires some proof of intentionality as opposed to negligence, and (iii) proof of actual exposure from the defendant’s premises and proof that such actually caused the Covid illness.  These latter two elements — under a “clear and convincing” standard — may, practically, be insurmountable in almost all cases.  How would one prove this, overwhelmingly?

The proposed statute goes further to define “reasonable efforts” as complying with either state or federal guidelines — so that a state can define compliance down.  Plus, there is an absurd carve-out (to say the least) that provides businesses with a crucial presumption for merely “adopting in writing” a Covid policy that purports to comply with this law:

Moreover, if a defendant has a written or published policy on coronavirus exposure issues that complies with or exceeds any health guidance provided by the government, the defendant is presumed to have complied with government guidance. The plaintiff may be able to rebut this presumption, but the plaintiff must plead “particular facts giving rise to the strong inference that the person or entity was not complying with the written or published policy.” On the other hand, the absence of any written or published policies by the defendant does not create any presumptions.

The provision above is crazy objectionable.  Almost all of the rest of the above also is the true crux and fighting ground over this Republican demand.  It is very difficult to imagine what a viable complaint would look like.

One Year Statute of Limitations — Covid claims will be subject to a one-year statute of limitations that accrues on the date of the alleged exposure.  Most state law personal injury/malpractice claims range from two to three years.

Medical Liability Claims —  Such claims basically would follow all of the above, but the proposed law further provides that no gross negligence or willful misconduct claims can be based on any omissions resulting from a resource or staffing shortage.

Other Pleading/Procedural Obstacles — In addition to the above, the Republicans’ proposed bill includes a number of highly onerous pleading and procedural requirements that will make it very difficult — and maybe impossible — to even successfully initiate a claim. Rather than try to summarize it myself, let me quote the Skadden description:

The bill imposes heightened pleading standards for all coronavirus-related claims. A plaintiff is required to plead each element of his or her claim with particularity, which includes listing all places and persons he or she visited during the 14-day-period before the onset of his or her first coronavirus symptoms.

In addition, a plaintiff must file an affidavit by a physician or medical professional — who did not treat the plaintiff — attesting that the plaintiff suffers from the alleged injury and that, in the medical expert’s opinion, the injury was proximately caused by the defendant. The plaintiff must also file all relevant medical records detailing the injuries alleged to have been caused by the defendant.

The bill also requires that the plaintiff file separate statements accompanying the complaint that provide specific information about the nature of damages suffered and specific facts bearing on the required state of mind for each defendant. . . . Any denial of a motion to dismiss can be appealed immediately and that the stay of discovery will remain in effect while interlocutory review is underway.

There is more — including allowing damages, punitive damages and civil penalties by the Justice Department against plaintiffs’ lawyers who file a “pattern” of unsuccessful claims.

Conclusion:  Some of the above concepts are arguably reasonable on their face.  We often channel certain claims to federal court, decide on a statute of limitations, and/or consider the proper burden of proof.

The above is different.  It is a blank check for Defendants.

My own view is that Republicans don’t care much to at all about the cost of a Covid-relief bill.  The above “liability shield” legislation is the whole enchilada for them.  Republicans desperately hope that some legislation resembling this can pass — be rammed through with the other needed relief — without any real scrutiny or debate.  And, when something like this bill does pass . . . you will not see Republican support for another penny of Covid relief or stimulus.

The bottom line is that it is criminal that all this is happening without robust public reporting and debate.

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