The Covid-19 pandemic has sparked myriad state legislation providing some form of business immunity from Covid-19-related lawsuits. This appears to be good news for businesses, but much of the enacted and proposed legislation provides little practical protection because it is immunity from liability—not from litigation.
Plaintiffs will undoubtedly face obstacles in proving causation because they must demonstrate they contracted the virus at a defendant’s business, but plaintiffs have overcome similar obstacles in the past.
Shield #1: Liability Immunity for Covid-19 Claims
The 2005 federal Public Readiness and Emergency Preparedness Act (PREP Act), which also provides liability immunity against Covid-19 lawsuits, is more limited in scope in this context. Unlike the state legislation discussed here, the PREP Act provides liability immunity only to “covered persons” for activities related to medical countermeasures against Covid-19. Therefore, the PREP Act would not extend to all businesses that would find protection under state legislation.
Regarding state legislation, 20 states thus far, as of April 30, 2021, provide some form of immunity to businesses for civil actions commenced by employees who contract or are exposed to Covid-19. Those states include Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Montana, Nevada, New Jersey, New York, North Carolina, Oklahoma, South Dakota, Tennessee, Utah, Wisconsin, and Wyoming.
For immunity to attach, the laws generally require that businesses have made a good faith effort and/or be in substantial compliance with applicable local, state, and federal public health guidance. Many states exclude from immunity businesses that have acted with gross negligence or that engaged in willful, wanton, reckless, and/or intentional misconduct.
Although most states end their guidance there regarding immunity provisions, some have taken a more nuanced approach as their stated language sheds light on the trajectory of Covid-19-related lawsuits.
The Nevada law (NV SB4), for example, sets forth a heightened pleading standard for such actions and identifies the court—as opposed to a jury—as the finder of fact on compliance issues. It requires any complaint “be pled with particularity” and that “the court…determine substantial compliance with controlling health standards.”
Tennessee law (SB 8002) and Florida law (SB 72) similarly establish a claimant’s burden of proof for such claims—the more rigorous clear and convincing standard—and impose a set of requirements at the pleading stage, which, if absent, will render a pleading subject to dismissal. Tennessee requires a verified complaint and certificate of good faith regarding expert medical causation, and requires proof “by clear and convincing evidence.” Florida requires the same except for the verified complaint.
Both the Nevada and Tennessee laws also impose upon potential claimants higher standards for relief, as they purport to preclude liability for negligence and limit liability to acts or omissions constituting gross negligence or willful misconduct. Other states, including New Jersey, North Dakota, and South Carolina, are currently grappling with similar issues and are expected to pass similar laws soon.
As seen in medical malpractice litigation—where expert medical affidavits are required to accompany a complaint—and in litigation asserting fraud claims, many cases will overcome these pleading challenges and move through the discovery stage. Therefore, businesses can expect to incur defense costs and should not exclude that line item from their expenditures.
Shield #2: Causation as a Plaintiff’s Uphill Battle
Given the highly contagious nature of the Covid-19 virus and the nearly infinite sources of exposure plaintiffs can encounter, meeting the burden of proof—especially the heightened “clear and convincing” burden—seems insurmountable.
Defendants will readily employ this argument. In fact, they already have. In Kantrow v. Celebrity Cruises Inc. (S.D. Fla.), Celebrity Cruises moved to dismiss a proposed class suit by a New York couple who say they contracted Covid-19 on board, arguing the couple cannot prove they were infected on the ship, as opposed to while traveling from New York to South America to board the ship.
But insurmountable is not impossible. There are other litigations, such as toxic torts, in which causation presented a challenge to plaintiffs but they overcame it in many instances.
In those scenarios, and possible here, the use of probabilities and statistics to determine exposure, such as demonstrating multiple instances of the same harm within temporal and physical proximity, was ultimately deemed sufficient to prove a causal nexus to the trier of fact. Thus, the success of a Covid-19 claim will be highly fact dependent.
As a result, regardless of the presence of an immunity statute, defendants should be prepared to engage in an extensive discovery process because both a plaintiff’s conduct and a defendant’s mitigation measures will be critical to determining causation.
State-enacted liability shields against Covid-19 lawsuits, while providing for heightened pleading and steep causal proof requirements, provide limited security to businesses, as these shields will bar only frivolous claims.
Many cases will overcome pleading challenges and move through discovery, which will be sweeping. Businesses would be well advised not to rely on these shields too heavily, and instead should prepare for battle.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Enjoliqué Aytch Lett, a Greenberg Traurig shareholder, focuses her practice on pharmaceutical, medical device, and health-care sector litigation. She often leads bet-the-company litigation for clients and is experienced in mass tort and multi-district litigation.
Akiesha Gilcrist Sainvil, an associate at Greenberg Traurig, focuses her practice on defending medical device, pharmaceutical, and consumer products manufacturers in high-stakes complex products liability and mass torts litigation.