WASHINGTON (CN) — In a country still very much in the muck of a global pandemic, the tide of business reopenings is likely to carry with it a new problem of coronavirus-related lawsuits.
This impending wave of torts spurred a signal flare from the National Association of Manufacturers and several other trade groups, which asked House and Senate leaders Friday to enact “limited and rational safe harbors” that would curtail any “misguided litigation.”
Businesses that have kept their doors open in these times “of remarkable legal uncertainty ... risk becoming the targets of coronavirus-related lawsuits that will ultimately do nothing to reduce the spread of this disease or address the suffering that Americans have endured because of it,” according to a draft of the letter shared with Courthouse News.
“Companies doing their best to control the spread of this disease with the limited guidance available deserve legal protection,” it continues.
While disclaiming that they seek any safe harbors for “bad actors that operate in reckless or intentional disregard,” the groups also calls for a temporary suspension of suits “that threaten to shut down vital industries — including even health care providers.”
The association’s general counsel did not immediately respond to an email seeking comment on the letter.
Both the U.S. Chamber of Commerce and the American Tort Reform Association have published recent white papers that closely track the letter’s requests, warning that the failure to change evidentiary rules or workers’ compensation laws could usher in an onslaught of Covid-19-related lawsuits.
Consumer advocacy groups, unions and plaintiff-side lawyers are not waiting to contest these curbs on liability as the Covid-19 crisis builds.
“They are asking for immunity from acting unreasonably,” said Julia Duncan, senior director for government affairs at the American Association for Justice. “If you give companies immunity from acting unreasonably, what is the incentive for companies to act reasonably?”
Already certain industries have been targeted for Covid-19 liability, including cruise lines that kept infected people on board and nursing homes where dozens of residents died from the virus. But even smaller companies now fear the T-word over Covid-19.
“There is no lack of creativity when it comes to new kinds of torts,” Karen Harned, executive director of the legal center at the National Federation of Independent Businesses, said in an interview. “Covid is one that is tailormade, sadly, for abusive lawsuits.”
The Trump administration already is debating whether it will act to curb liability. Last month White House economic adviser Larry Kudlow told reporters that a liability shield from Covid-19 lawsuits “can be done through executive order or regulatory changes, and some of it might require legislation.”
Legislation may soon come down the pike. In a statement earlier this week, Senate Majority Leader Mitch McConnell hinted he would help lead the fight for liability blankets and class-action safe harbors for all manner of companies that face what he says are “years of endless lawsuits” over Covid-19 exposure.
“We cannot let that happen,” the Kentucky Republican said. “Our nation is facing the worst pandemic in over a century and potentially the worst economic shock since the Great Depression. Our response must not be slowed, weakened, or exploited to set up the biggest trial lawyer bonanza in history.”
Republicans spoiling for a fight will likely find one from Speaker Nancy Pelosi, who countered on Wednesday that protections for workers, consumers and patients must be at the forefront of new legislation. “So we would not be inclined to be supporting any immunity from liability,” Pelosi told reporters.
Unions and consumer advocacy groups also plan to fight any such proposals to liability.