CPR Calls on Congress to Preserve Citizen Access to the Courts in Wake of Pandemic

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.

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.

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.

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."

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.”

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.

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.

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.

As Senate Republicans and corporations continue to lobby for the broadest possible "liability shields" in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court.