Monday, July 27, 2020
The bill is here. It is every bit as sweeping as advertised. It is described in this manner: “To lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief.” I will not in this brief exposition discuss the structure of the Act in detail but it is comprised of three titles: Title I, “Liability Relief;” Title II, “Products;” and Title III, “General Provisions” (severability). This discussion solely concerns Title I (Liability Relief). Subtitle A pertains to “Individuals and Entities Engaged in Businesses, Services, Activities, or Accommodations.” Subtitle B pertains to “Health Care Providers.”
Bill’s Central Justification (From Sec. 2, Findings and Purposes):
“One of the chief impediments to the continued flow of interstate commerce as this public health crisis has unfolded is the risk of litigation. Small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies confront the risk of a tidal wave of lawsuits accusing them of exposing employees, customers, students, and worshipers to coronavirus. Health care workers face the threat of lawsuits arising from their efforts to fight the virus.” There is other similar, rambling language like the need “to prevent litigation brought to extract settlements and enrich trial lawyers rather than vindicate meritorious claims.” You get the idea.
A Very Important First Point
The bill would be effective until at least October 1, 2024 (!!)
A Very Brief Analysis
For this audience I will first say that the bill does not preempt state workers’ compensation law. Sec. 121(b)(3).
The bill “supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, or standards that are enacted, promulgated, or established under common law, related to recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to coronavirus.” Sec. 121 (b)(1). (So much for Federalism)
Under Sec. 122(a), “Notwithstanding any other provision of law, and except as otherwise provided in this section, no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that
(1) in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;
(2) the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
(3) the actual exposure to coronavirus caused the personal injury of the plaintiff.”
Under Sec. 3 definitions, gross negligence “means a conscious, voluntary act or omission in reckless disregard of— (A) a legal duty; (B) the consequences to another party; and applicable government standards and guidance.
Under willful misconduct “means an act or omission that is taken— (A) intentionally to achieve a wrongful purpose; (B) knowingly without legal or factual justification; and (C) in disregard of a known or obvious risk.”
Under Subtitle C, Sec. 161(a) the federal and state courts have original concurrent jurisdiction. Under Sec. 161(b)(1) a defendant may remove to federal court. Under Sec. 161(b)(1)(A) any defendant may remove over the objection of co-defendants. Under Sec. 161(b)(1)(B), actions already pending in state courts may be removed to federal court upon the enactment of the bill.
Bottom line: Coronavirus cases would be heard in, and routinely dismissed by, federal courts.
The bill does not preempt stricter state immunity laws. Sec. 121(b(2).
I recommend you read the bill in its entirety but it is clear to me that it quite simply extinguishes the law of negligence with respect to COVID-19 claims for over four years. Immunity is so sweeping that defense lawyers may find it worthwhile to connect any negligence action (somehow) to a COVID-19 theory: a real negligence holiday. All I can say, is that if you are a worker in a state in which workers’ compensation infectious diseases are excluded as a matter of law; or if you are a gig worker; or if you are a customer doing almost anything – watch out! If this becomes law my family will modify its activity accordingly. And I doubt we will be alone. The risk of pandemic carelessness in one fell swoop will have been shifted to the general public in an unprecedented and shameful manner, and in utter contravention of public safety. Workers without the luxury of being able to work remotely from home (overwhelmingly, Black, Brown, and poor) will be the real losers. Customers can at least reduce their offline shopping and dining.
Michael C. Duff