Senate Majority Leader
Warning that an avalanche of litigation would undercut any rebound from the pandemic’s economic damage, McConnell has repeatedly said he won’t let a bill to pass the Senate without a temporary shield from most coronavirus-related lawsuits for businesses that follow public health guidelines.
But the proposal remains in limbo with talks on a stimulus package stalled. Action by President
McConnell’s view that that liability protections must be part of an eventual deal doesn’t appear to be shared evenly by Trump and White House officials. Chief of Staff
McConnell continues to bring up the liability shield at every opportunity. “I don’t think the economy has any shot at all of getting back to normal if every entity in the country is dealing with frivolous lawsuits,” he said last week on CNBC. But he’s also made clear he’ll go along with whatever deal can be extracted in negotiations between the Trump administration and Democratic leaders.
The Republican legislation, written by Senator
Cornyn’s bill would also limit liability to gross negligence and willful misconduct for medical liability claims arising out of coronavirus care by licensed health-care workers. And it would limit lawsuits related to Covid-19 testing and personal protective equipment if that equipment meets U.S. Food and Drug Administration standards.
“The scope of this is radical,” said Michael Duff, a law professor at the University of Wyoming. “What this really is about is to build a structure that will curb bringing these actions in the first place.”
Business groups backing the Republican proposal said in a letter to lawmakers on July 30 that it would provide a baseline of protection to stop “a growing wave of lawsuits from inhibiting our return to a robust economy and healthy citizenry.”
Bad for Consumers?
Schumer and House Speaker
Chairs of the House Judiciary and Education & Labor committees sent an analysis to fellow Democrats last week that suggests the Senate bill “stacks the legal deck in favor of those who are guilty of negligent conduct.” It characterizes the bill as a stark contrast to the House-passed plan to provide enforceable federal standards through the Occupational Safety and Health Administration.
Independent counts are squishy. One oft-cited complaint-tracking effort by the law firm
The information sent out last week by the House panels highlighted the tracker and said there had been “fewer than 200” lawsuits filed nationally alleging injury or death resulting from Covid exposure.
Duff, the University of Wyoming professor, said the range of potential lawsuits is much broader, and that Democrats should be cautious in suggesting the risk is low.
“My quibble with the Democrats is that I think even if there were substantial numbers of lawsuits, that in itself would not be a basis to eviscerate the law of negligence, woven into our legal DNA.” he said.
Durbin, who’s argued that the existing system of trying cases under state tort law shouldn’t be replaced, said last week that he could see a compromise if a federal agency like OSHA or the Centers for Disease Control and Prevention set standards for safe reopening. Even then, negotiators would still have to reach agreement on issues such as whether some states could keep jurisdiction, and whether the shield would apply only to future cases.
“They need to establish and state the national acceptable standards for a business or a school when it comes to dealing with this pandemic,” Durbin said.
Cornyn last week questioned how new standards, from OSHA or elsewhere, could achieve the Republican goal of offering retroactive liability protection.
“I’d be happy to talk to any of the Democrats who want to talk,” Cornyn said, adding that they’ve so far indicated unwillingness to discuss the matter.
(Updates with press secretary’s remarks in fourth paragraph)
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