Judd Gregg: The next pandemic — trial lawyers

By Judd Greg

Let’s presume you have a small business that employs 20 or 30 folks.

Maybe it is a restaurant or a hardware store or a small software company or a construction group.

You know you have to get your business up and running again or the people you employ will lose their jobs for good.

You call your team back.

You do it in stages so not too many workers will arrive at once. You insist they wear masks and to the best of your ability you institute social distancing and require employees to assert they are healthy.

But someone comes back to work, showing no signs or symptoms of the virus, and it turns out they have a problem.

They are told to quarantine as soon as their situation is obvious, but by then they may have spread the coronavirus to others, maybe their families.

Your business is open. It survives. Most of your people are working again.

You think you are out of the woods; you have weathered the worst.

Then, six months or a year later, you get a summons.

You have been rolled into a large class action against similar employers — small businesspeople who tried to restart their lives but who had an employee who got the virus and possibly spread it.

The charges in the lawsuit claim damages that are enormous.

The cost of defending, of paying for the lawyers and discovery that it requires, are immediate and must be paid whether or not you are actually liable.

The virus has returned to your door, only this time it is in the form of the trial bar.

Like moths drawn to a flame, the trial bar in America is gearing up to cash in on this virus.

The trial attorneys are developing new and creative ways to sue employers who may have employees who developed the coronavirus.

It is new and fertile ground for the lawyers’ limitless avarice.

Their strategy is to generate lawsuits, preferably class actions, the defense of which is so staggering that those sued will simply have to settle. Of course, a large percentage of the settlement goes to the trial lawyers.

Like kids on Christmas Eve, the trial bar sees sugarplums of great worth headed their way.

This newfound vein of gold arises out of the misery of this virus.

Businesses that must employ people in settings where the virus may propagate, even when sensible protective actions have been taken, are the source of this opportunity.

This is, for the lawyers, not about protecting anyone.

It is a chance to make money off of actions, no matter how well intentioned, that unfortunately still lead to the virus being spread.

Congress is now considering possible ways to mute this likely explosion of predatory lawsuits.

But the Democratic leadership in Congress says such proposals will harm working Americans.

Their argument might have some validity except for two very obvious facts.

First, the trial bar is one of the largest contributors to Democrats in Congress, along with a few major union groups.

Its contributions dwarf almost every other group. The trial lawyers have, in a most brazen and aggressive manner, set out to buy the protection of Congressional Democrats. They have succeeded.

Any attempt over the years to institute even the most tepid effort at tort reform has been blocked by the Democratic leadership on Capitol Hill.

It is ironic that those on the left who are always pointing to the influence of corporate money in campaigns are uniquely and deafeningly silent on the influence of trial lawyers’ money on their own positions and activities.

Second, in this case, there is the key question of the need to protect employees and specifically their jobs as the nation’s economy resumes from a dead-stop.

Sadly, there is no doubt that there will be some reintroduction of the sickness.

Most employers are working aggressively to make this type of event the exception by following the appropriate guidelines.

The effort to re-open America’s Main Street is all about protecting workers  — not about harming workers, as Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles Schumer (D-N.Y.) assert, repeating the talking points of the trial bar.

Nothing is more harmful to most Americans whose jobs are in limbo than to not be able to earn a living for themselves and their families.

No one is going to bring people back to work in an atmosphere that causes them to get sick. In fact, employers have exactly the opposite motivation. Any thoughtful employer would want to protect employees.

All employers, especially small business owners, need some protection from the predatory practices of the trial bar.

If Congress does not want to dramatically escalate the economic and emotional trauma caused by this virus, it must institute protections for those who fairly and honestly approach opening up their workplaces.

The limitations on the trial bar should include a number of fair and obvious ideas.

Any class action generated against employers for purportedly failing to protect their employees should include the English concept of “loser pays.”

Under the present law, there is essentially no downside to bringing class actions even based on the most spurious of facts.

The costs all fall on the employer, especially the costs of discovery. This makes settlement, even when employers believe they have acted appropriately, a foregone conclusion. The cost of discovery in and of itself is often higher than the cost of settlement.

Our jurisprudence system is directly derived from the English common law. Adopting some English common sense on “loser pays” would reduce lawsuits of questionable worth.

Further, there should also be a safe harbor for employers who follow government standards in terms of creating a healthy environment for workers.

This would mean that anyone wishing to initiate a class action would have to meet the burden of proof that such ‘safe harbor’ actions were not taken.

Employers also need to have immunity from claims that involve invasion of privacy when those claims relate to information that the employer may have passed on in order to manage the threat of the virus.

It is fairly common for the trial bar to forum shop. There are certain state courts where the trial lawyers know the atmosphere is favorable for any class actions they may bring.

Employers whose business operations cross state lines should not have to defend themselves in numerous state jurisdictions which are chosen by the trial bar simply because the plaintiffs’ lawyers fancy their chances there.

Senate Majority Leader Mitch McConnell (R-Ky.) has stated tort reform as it relates to these potential lawsuits during this difficult time is essential. He has said there will be no additional funding bills that do not include this type of reform.

The trial bar, one suspects, would willingly forgo further assistance to those in need of economic relief rather than give up on any of their potential lucrative activity.

It will be interesting to see if the stranglehold that the trial lawyers have on the Democrats in Congress, especially the party’s leaders, will hold in this instance.

If Congressional Democrats accede to the trial lawyers’ wishes once again, they will cause great harm, not just to employers but to Americans who want and need to go back to work.

These constituents, the people on Main Street, will be barred from getting their economic lives back because Democrats in Congress put a special interest group first.

Judd Gregg (R) is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee, and as ranking member of the Senate Appropriations Foreign Operations subcommittee.