Originally published on Legal Planet. Reprinted with permission.
Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.
In this post, I'm going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.
Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant's business operation, that better precautions would have prevented the exposure, and that they weren't exposed elsewhere.
Tort lawyers may be reluctant to take on such claims except in the unusual cases where there was no other significant exposure to the virus. In addition, the plaintiff will have to show that the business failed to take reasonable precautions, which won't be easy in many cases. Even if they prove all that, the damage award will be lowered if the plaintiffs failed to take reasonable precautions to protect themselves. A lawsuit will have to jump all these hurdles. The question is whether businesses need additional protection beyond that already provided by the ordinary rules of negligence law.
I've collected some of the specific proposals. They differ in details, but there are some common threads.
U.S. Chamber of Commerce
The U.S. Chamber of Commerce is the #1 representative of business interests in Washington, D.C. Here's a description of the Chamber's views on April 13. They were calling for the following:
National Federal of Independent Businesses (NFIB)
NFIB's core proposal is that "Businesses should be protected from liability to customers and other third-parties unless those customers or parties prove the business knowingly failed to develop and implement a reasonable plan for reducing the risk of exposure to COVID-19 and that failure caused the injury." The paragraph setting forth this proposal makes it clear that this liability protection would apply even if a business was not fully in compliance with federal or state health rules.
NFIB also proposes some subsidiary reforms:
Heritage Foundation
The Heritage Foundation has a multi-part proposal:
Underlying assumptions
Before turning to the specifics of the proposals, I should note that there are two key assumptions underlying them. None of the proposals attempts to defend those assumptions.
The first assumption is that frivolous tort claims are going to be a serious problem. I haven't seen any evidence to support this, either based on past experience or on lawsuits brought to date. Despite all the talk about unscrupulous plaintiffs' lawyers, we don't know how much of a problem they are.
The second assumption is that federal intervention is required. Tort law is a matter of state concern. If personal injury lawsuits are going to be an unfair burden on businesses and prevent the economy from reviving, why can't we trust state legislatures to respond? A related assumption seems to be that state courts can't be trusted to handle these cases. Again, there's no evidence to support this assumption. Whatever happened to states' rights?
Other gaps
Beyond the failure to defend these assumptions, there are other serious gaps in the argument for these proposals:
Overlooked benefits of liability. The proposals conspicuously ignore any possible justifications for imposing liability. In general, negligence liability has two justifications. First, it provides an incentive to exercise reasonable care. It's not implausible to assume that businesses will be more likely to take reasonable care if they face the threat of liability for carelessness. Second, negligence liability is based on the moral sense that someone who is at fault should compensate the victims of their carelessness. The reform proposals would undermine both goals to the extent that they protect businesses that actually failed to exercise reasonable care.
Failure to consider alternatives. If in fact unfounded lawsuits are an undue burden on businesses, there are alternative solutions. One would be some kind of federal support for business liability insurance, such as a tax credit for liability premiums. Another alternative would be to cap damages. A different option would be to add special procedural requirements for these lawsuits in order to allow frivolous claims to be weeded out quickly and inexpensively.
Workability issues. Shunting these lawsuits to federal court seems unworkable, given the limited number of federal judges and their already overloaded dockets. The proposal to have the federal government certify safety plans assumes that federal agencies have spare resources to devote to this task. Moreover, because many federal and state safety requirements are vague, it may be difficult for businesses to establish that they were in compliance. (Moreover, at this writing, the White House seems unwilling to allow CDC to issue reopening guidelines.) The requirement that plaintiffs show gross negligence may or may not be a deterrent to "unscrupulous trial lawyers."
In short, at this point, the supporters of these proposals have failed to show that negligence law is in need of a federal cure, that the cure will not be worse than the feared "epidemic" of unfounded litigation, or that the cure will work.
Showing 2,914 results
Daniel Farber | May 13, 2020
Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.
James Goodwin | May 12, 2020
Yesterday, a group of 20 Center for Progressive Reform Board Members, Member Scholars, and staff joined a letter to House and Senate leaders calling on them to reject efforts to attach to future COVID-19 pandemic-related legislation provisions that would interfere with the ability of workers, consumers, and members of their families to hold businesses accountable when their unreasonably dangerous actions have caused workers or consumers to contract the virus. Instead, as the letter urges, lawmakers should ensure that our courthouse doors remain open to all Americans to pursue any meritorious civil justice claims for injuries they suffer arising from companies' failure to guard against the spread of the coronavirus.
John Echeverria | May 11, 2020
Anyone following the news about the coronavirus knows about the vocal opposition by libertarians and other right-wing extremists to government measures designed to control the pandemic. On television, the coverage has focused on angry, gun-toting protesters. But there's another avenue of opposition to the virus-related safeguards, one that's less photogenic but no less divorced from reality. In recent weeks, a number of land and business owners have filed lawsuits claiming stay-at-home orders and business closings represent “takings” of private property under the Fifth Amendment to the U.S. Constitution. These takings claims should be -- and likely will be -- rejected based on firm U.S. Supreme Court precedent.
Matthew Freeman | May 8, 2020
In the latest episode of CPR Board President Rob Verchick's Connect the Dots podcast, he and CPR Member Scholars Michael Duff and Thomas McGarity explore worker safety issues in the era of the coronavirus. McGarity begins the conversation with the story of Annie Grant, a 15-year veteran of the packing line at a Tyson Food poultry processing plant in Camilla, Georgia. One morning in late March, weeks after the nation had awakened to the danger of the coronavirus and states had begun locking down, she felt feverish. When her children urged her to stay home rather than work with a fever on the chilled poultry line, she told them that the company insisted that she continue to work.
Daniel Farber | May 7, 2020
If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”
Matthew Freeman | May 7, 2020
In a recent op-ed in the Waco Tribune-Herald, CPR Board Member Thomas McGarity lays bare the real cost of Senate Majority Leader Mitch McConnell's efforts to extend a liability shield over businesses that endanger employees or customers by failing to take adequate precautions to prevent the spread of the coronavirus. Such a shield, he writes, would "destroy a powerful incentive for companies to protect their workers, their consumers, and their neighbors from this invisible killer."
Matthew Freeman | May 6, 2020
One of the most telling aspects of the COVID-19 pandemic has been its disparate impact on minority communities in the United States. At least three factors seem to be at work in the elevated death rate: uneven access to health care, greater prevalence of preexisting (and often inadequately treated) comorbidities, and greater likelihood of on-the-job exposure. Writing in the Boston Globe last week, CPR Member Scholar Shalanda Baker, together with co-authors Alecia McGregor, Camara Jones, and Michelle Morse, point out yet another way that the pandemic is taking a particular toll on low-income communities and communities of color.
Michael C. Duff | May 6, 2020
In what for me is an ominous development, the Smithfield Foods public nuisance case, about which I blogged earlier, has been summarily denied by a Missouri federal district court and the case has been dismissed. The decision took all of twelve days. In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set "mood points." And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers' compensation or tort law.
Darya Minovi | May 5, 2020
As the COVID-19 pandemic spreads across the globe, public health data continues to show that the virus’s worst effects are felt by communities already weighed down by the burden of multiple social and environmental stressors. As of May 3, in CPR’s home city of Washington, DC, African Americans account for 79 percent of coronavirus deaths, despite making up only 45 percent of the city’s population and 47 percent of diagnosed cases. This inequitable trend appears to be playing out across the country. These issues and more were addressed last week in CPR’s fourth installment of our climate justice webinar series, titled, “Vulnerability and Resilience to COVID-19 and the Climate Crisis.” The featured speakers were Dan Farber, Dr. Monica Schoch-Spana, and Dr. Aaron Bernstein.