Mounting Covid lawsuits will challenge dozens of state liability shield laws and executive actions

By W.J. Kennedy

WASHINGTON (Legal Newsline) – It will take a few years before we know the extent of the effectiveness of laws approved in 15 states, and executive actions in 23 more, shielding health care providers and businesses from Covid lawsuits, says Cary Silverman, partner with Shook, Hardy & Bacon, and expert in product liability and tort law, and civil justice reform.

“The lawsuits have started but the bulk of them will likely come in another two years or so, near the end of the three-year statute of limitations,” Silverman told Legal Newsline. “It will then be another year or two before we see how they are resolved.”

Liability protections range from immunity for health care practitioners in most circumstances via executive order in Pennsylvania to premise liability protection for businesses as part of a four-bill package approved in June by the Louisiana Legislature, according to a list maintained by the American Tort Reform Association (ATRA).

Among other things, the laws contain provisions that raise the standard from bare negligence, where someone knew or should have known of a risk, to gross negligence or recklessness, where a person actually knew of a substantial risk, and did nothing to eliminate it.

“The higher standard is warranted because protecting against COVID exposure is not the same as guarding against someone slipping and falling in a store, for example, where what is expected is long understood,” Silverman said. “With COVID, what we know about the virus and its transmission, and the measures that should be taken to guard against it is continually evolving and changing. What is considered operating responsibly three weeks ago might not be viewed as taking sufficient measures today. Businesses are concerned that they will be subject to liability for exposures based on 20-20 hindsight.”

Still, it’s unclear how well the protections will stand up to legal strategies employed by the trial bar.

One broad shot from the trial lawyers will be to challenge a governor’s authority to use emergency powers during the pandemic to sign an executive order granting immunity in the first place.

“The risk is that this type of executive action has not been tested in court,” ATRA wrote in a white paper published in April.

Another trial lawyer strategy will allege that an injury did result from gross negligence, the carve-out in many of the liability protections. Covid lawsuits targeting Walmart Inc, Safeway Inc., Tyson Foods Inc. and numerous health care facilities are alleging gross negligence or wrongful death, according to a July 31 report published by the Wall Street Journal.

“Employees’ loved ones contend the companies failed to protect workers from the deadly virus and should compensate their family members as a result,” the article said.

Survivors are also seeking payments for medical bills, future earnings and additional damages.

Charges of gross negligence against employers would not only allow suits under the state liability protection laws but in some circumstances could allow trial lawyers to sidestep the confines of state workers’ compensation laws, which limit an employer’s exposure in exchange for the injured worker receiving payments for medical care, lost wages and disability. ATRA also warned in its white paper that trial lawyers are increasingly using the argument that an intentional tort in the workplace – typically needed to circumvent the workers’ compensation system —  includes an action or omission that is “substantially certain” to result in an injury, such as exposure to the virus.

In other cases, trial lawyers will bring actions against businesses and health care providers for plaintiffs who have mild symptoms from the virus, or never developed symptoms at all, ATRA says

“These lawsuits will claim that exposure to coronavirus led a person to experience emotional distress stemming from fear of contracting the disease, the expense of visiting a doctor or testing, or economic loss due to quarantine.,” the white paper said.

A liability protection law approved in June in Iowa prohibits claims by those who allege exposure, but never developed symptoms, or symptoms they did develop never required hospitalization for treatment.

Silverman says there will be “tons more” lawsuits and sheer number of them against a particular business could, as a practical matter, preclude the need to show causation — that exposure to the virus occurred at a specific place and time.

“The recent Roundup settlement is a good example of that,” Silverman said. “Nothing ever linked the use of Roundup to non-Hodgkin’s lymphoma, but the cost of litigating got to be greater than the cost of settling.”

Another way around causation is to bring the action in a “Judicial Hellhole,” a label ATRA gives to jurisdictions notorious for bias against defendants.

Victor Schwartz, who chairs Shook’s Public Policy Practice Group,  wrote in May in “Trial Lawyer Greed in Time of Need: The COVID-19 Tort Fest and How to Curb It:

“Of all the places the plaintiff has been, of all the objects he or she touched, and of all the people the plaintiff has been near, how can the plaintiff prove that his or her illness came from a visit to a particular place of business? As a practical matter, this should present a considerable challenge, but, again, Judicial Hellholes jurisdictions may open the door to such claims.”

As an added precaution against Covid lawsuits, Silverman advises businesses to document how they have followed workplace safety guidelines published by the Center for Disease Control, and state public health agencies.

“Many of the state Covid laws provide a safe harbor from liability if a business operated consistently with guidance applicable at the time of the alleged exposure,” Silverman said.