- The Washington Times
Thursday, July 30, 2020

More than 40 passengers sued Princess Cruise Lines this year seeking cash payments for the emotional distress they claim to have suffered over fear of contracting the coronavirus while on board, though they never had symptoms or tested positive for COVID-19.

After four months of mounting attorneys’ fees and resources used in federal court, the judge threw out the combined 14 lawsuits.

They were among a flood of coronavirus lawsuits — more than 3,800 have already been filed — that Senate Republicans hope to avoid by granting liability protection to businesses as part of the next round of coronavirus relief.

“The system tolerates crazy lawsuits,” said Philip Howard, chair of Common Good, an anti-bureaucracy advocacy group. “The goal here is to instill trust in businesses. If they reopen, they won’t be dinged by some rogue lawsuit.”

Liability protection, which is a top priority of Senate Majority Leader Mitch McConnell, Kentucky Republican, also is a chief sticking point in negotiating the $1 trillion-plus package.

Mr. McConnell vowed not to bring to the floor any relief package without liability protection.

Democratic lawmakers, who usually side with trial lawyers, say the Republican plan goes too far and is a giveaway to big business at the expense of consumer protection.

“It’s a radical change of all liability law,” said Senate Minority Leader Charles E. Schumer, New York Democrat.

The law firm of Hunton Andrews Kurth has tracked COVID-19 legal cases and found that nearly 3,800 had been filed since March. New York, California and Florida are the states with the most lawsuits.

Not all COVID-19 cases deal with personal injury or wrongful death. More than 600 involve civil rights disputes such as court battles over business closures, stay-at-home orders and classifications of essential-versus-nonessential workers.

“The harm of the current litigation system is not the total number of lawsuits or the crazy verdicts,” Mr. Howard told The Washington Times. “The harm is the fear you might get sued in a system that doesn’t reliably prevent that.”

The Republican legislation, which Sen. John Cornyn of Texas authored, would limit lawsuits from people claiming they were exposed to COVID-19 at businesses, schools, colleges and nonprofit organizations. The five years of liability protection would be retroactive to Dec. 1, 2019, and last until Oct. 1, 2024.

The protection wouldn’t be a total liability holiday. Lawsuits alleging gross negligence and/or intentionally wrongful conduct could still be pursued, according to the draft legislation.

Critics say it fails to require any standards for schools, hospitals or businesses to safeguard students, patients or customers from the potentially deadly virus.

Republicans argue that allowing litigation for gross negligence and intentionally wrongful conduct provides adequate recourse.

“We are not going to let trial lawyers throw a party on the backs of the front-line workers and institutions who fought this new enemy on the front lines,” Mr. McConnell said on the chamber floor.

School districts also worry about getting hammered with coronavirus lawsuits.

The American Council on Education, the National School Boards Association, the School Superintendents Association and the Association of Educational Service Agencies have asked for temporary protections so educational resources aren’t squandered defending COVID-19 lawsuits when schools follow guidelines to prevent the spread of the coronavirus.

The education groups also fear that school districts will be sued if they can’t satisfy COVID-19 guidelines and simultaneously comply with the Individuals with Disabilities in Education Act, which guarantees that special-needs students get free public education tailored to their needs.

Dozens of various industries signed onto a letter from the U.S. Chamber of Commerce that was sent to lawmakers in May requesting the temporary legal shields. Those included the American Trucking Associations, Airlines for America, Associated Builders and Contractors, the National Association of Chain Drug Stores and the National Grocers Association.

The National Retail Federation, likewise, supported protections in the Republican bill known as the HEALS Act. The retailers say a legal shield is vital to the continued reopening of the economy.

The International Franchise Association also sent a letter to Congress pressing for the shield, which was signed by more than 7,000 business owners with franchises across the nation.

Mr. Schumer said the protections favored corporations and took issue with legal battles involving medical-related complications.

“It says: All medical malpractice — COVID-related or not — all state medical malpractice is gone till 2024,” Mr. Schumer said.

The text of the Republican proposal doesn’t match Mr. Schumer’s claim that it would put a moratorium on all medical malpractice lawsuits.

The term “medical malpractice” doesn’t appear in the bill, but the legislation would put limits on medical liability lawsuits over COVID-19. For example, the statute of limitations would run one year unless a plaintiff could prove fraud, intentional misconduct or the presence of a foreign body, such as a sponge, in the person that doesn’t have a medical necessity.

Additionally, claims against health care workers cannot be brought if medical supplies run short. Health care workers can be sued only if the patient-plaintiff can prove gross negligence or willful misconduct in providing care.

But a spokesperson for Mr. Schumer said the law could be used as an excuse for all medical mishaps as long as the providers claim it is a “result of coronavirus,” basically giving universal protection from malpractice claims through a back door.

“That definition would enable the preemption of essentially any medical malpractice suit for five years, even suits involving health care services that are not directly related to COVID treatment — because the provider can be expected to say that the pandemic impacted their decisions and activities for all services they provided,” spokesman Justin Goodman said.

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