Legal Immunity and COVID-19–Controversy Continues

Earlier this month, we wrote about the looming debate over legal immunity against certain types of claims in lawsuits arising out of the COVID-19 crisis. On May 15, 2020, the New York Times published an opinion piece editorializing against the prospect of immunity from certain types of suits being contemplated by the Senate. Like many of the opponents of immunity, the Times fear-mongers, raises straw-man opposition, and is unmoored from the reality of what really happens in civil litigation, and will happen here.

The headline itself conflates the complex issues: “McConnell’s Rush to Protect Businesses Endangers Everyone Else.” The immunity debate involves different classes of periods–immunity for actions in the past, and immunity for actions in the future. The debate also involves what types of businesses and people will have immunity. Finally, it also involves what type of conduct will not be entitled to the protection of immunity.

As discussed in our earlier post, the immunity being discussed, and which has been passed does not protect bad actors from gross negligence or deliberate disregard of governmental requirements.

Everything in life is on a range. Height, weight, age, snowfall, rain, wind speed. The list goes on. Litigation too has a range. A single isolated case to class actions. A small value case to cases worth vast sums. From likely winners to likely losers. Trial lawyers know that there is no such thing as a “guaranteed winner” or a “sure loser.” Cases fall somewhere on a range from a likely win to a likely loss.

The editorial avers that the plaintiff’s trial bar will not take cases that are “sure losers,” implying that any case that is not a “sure loser” is one that would be brought. One can debate whether in normal circumstances that is true. What is undeniably true, despite the Times’ Pollyannaish prognostication, is that there will be a tsunami of litigation arising out of COVID-19 issues. Absent immunity, those cases will fall somewhere on a range from likely winner to likely loser. The likely winner cases are those where there was gross negligence or deliberate disregard of government regulations.

The immunity debate is about whether people or companies whose conduct does not rise to that level should receive immunity from civil litigation in order to allow our economy to recover, for people to go back to work, for innovations in critical areas like PPE, medical care, drug therapies, work place safety, as well as safety in millions of offices and stores and restaurants all across the United States.

As we have previously written,

Second guessing conduct claimed to be merely negligent in an environment where what was reasonable was changing day-today (and the changes based on incomplete and evolving information) is eminently unreasonable.

Likewise, allowing the plaintiffs’ bar to aggregate hundreds, thousands, hundreds of thousands, or perhaps millions of cases together to extort settlements in a fragile economic environment from already fragile companies and insurance carriers is also not good public policy.

The Times is right that there is a tension. However, the choices are not the binary ones that it posits. There must be a weighing of the complicated interplay between science, engineering, the law, medicine and the economic needs of every person in the United States. This is not a problem that can or should be solved by simplistic misguided assumptions that there will not be a tidal wave of litigation.

There will be such a wave and it will be in every aspect of life in the country. In the absence of immunity, the plaintiff’s trial bar will bring litigation on such a scale that the costs of litigating, when added to the risks of losing, brings a significant, and perhaps untenable, risk to all businesses – big, small or in the middle.

The societal issue that must be grappled with is whether that very real risk is one that is in the public good. Gross negligence or deliberate disregard of government requirements should not be rewarded by immunity. Of course, there is a risk that with that carve-out, cases will be brought that do not meet that standard in the hopes that a jury can be convinced otherwise. But that is not nearly the risk the country faces without immunity of the sort being proposed at the national level or in states around the country.

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