Abbott pushes virus suit defense
WASHINGTON — Gov. Greg Abbott wants to shield Texas businesses and health care providers from COVID-related lawsuits, making liability protections an emergency item for state lawmakers this session.
Texas is just the latest state to push such legislation after Republicans in Congress tried in vain to get a liability shield included in federal coronavirus relief packages.
More than a dozen states, including North Carolina, Nevada and Louisiana, have already passed protections limiting coronavirus-related litigation and GOP lawmakers in Florida are advancing a bill to offer them up, as well.
Businesses “have gone above and beyond throughout the pandemic to open and to operate safely,” Abbott said in his state of the state speech on Monday.
“And yet, those same businesses now face the crosshairs of lawsuits,” Abbott said. “Texas businesses that have operated in good faith shouldn’t have their livelihoods destroyed by frivolous lawsuits.”
Texas has seen among the most COVID-related lawsuits in the nation, according to the law firm Hunton Andrews Kurth, which is tracking coronavirus litigation. The firm found 8,199 suits nationally, 622 of which were in Texas — the thirdhighest count behind New York and California.
It’s unclear, however, how many of those would be covered by the shield Abbott is seeking, as many deal with eviction cases, battles over shutdown orders and prisoners petitioning for release.
Not many cases so far
Workplace-related cases are significantly fewer, with just 91 in Texas, according to Hunton Andrews Kurth. The labor and employment law firm Fisher Phillips has found just 86 in Texas.
State lawmakers haven’t yet introduced a bill on the subject, but state Sen. Kelly Hancock, R-North Richland Hills, is set to carry one drafted with help from the Texas Civil Justice League. The measure will retroactively offer protection businesses, health care providers and others who made “a good faith effort” to comply with state health guidance during the entirety of the public health crisis, the judicial reform group said in a release earlier this month.
“The timing of the governor’s emergency designation could not be more critical,” George Christian, the group’s senior counsel, said Monday. “Unfortunately, no one knows when the pandemic emergency will end, and we simply cannot afford to keep our health care providers and businesses in legal limbo for an indefinite period of time.”
Hancock’s office did not immediately respond to a request for comment Tuesday, while the governor’s press shop sent out a collection of feedback from advocates in support of the proposal, including leaders from the Texas Restaurants Association and the Texas Association of Builders.
Major sticking point “Bad actors should be held accountable, but businesses that follow the government's safety guidelines to protect their customers and employees from the coronavirus should be protected from predatory trial lawyers trying to profit from the pandemic," said Annie Spillman, the state director of the National Federation of Independent Business.
Liability protections were a major sticking point in congressional haggling over the coronavirus relief packages it passed last year and U.S. Sen. John Cornyn, a Texas Republican, led the charge to include protections for businesses, nonprofits, churches, schools and other organizations that followed state or federal guidance during the pandemic.
“Certainly people who intentionally or willfully engaged in misconduct should be held liable, but as we all know, the guidance we have gotten has evolved over time as we have learned more and more about the virus and I think it would be unfortunate to allow a game of gotcha when people were doing the best they could given the guidance that was available at the time,” Cornyn said last year.
But Democrats opposed the effort, arguing that legal hurdles are already high, and that businesses should be held accountable if they put their employees, clients or patrons at risk.
Letting firms off hook
“Let’s be clear about what COVID-19 ‘liability protections’ would mean: letting corporations off the hook if they decide they care more about making a quick buck than keeping workers safe,” U.S. Sen. Elizabeth Warren, a Massachusetts Democrat, tweeted as Congress debated relief efforts in December. “We can’t let businesses escape accountability for putting people’s lives at risk.”
Many workplace safety lawsuits alleging wrongful death or negligence filed in the first year of the pandemic were dismissed outright or settled, according to an analysis by Bloomberg Law. The Wall Street Journal reported similar findings, noting existing laws have funneled most employee claims against employers into workers’ compensation systems.
To prevail in court under current laws, plaintiffs must prove not only that the businesses failed to take adequate precautions, but also that the careless conduct was the actual source of infection or injury. Joseph Gagnon, a partner at the Fisher Phillips firm’s Houston office, said that might be a high hurdle — and defining the standard of proof will be a key component of the bill debate over the next few weeks.
“You have an invisible virus,” he said, pointing to asymptomatic carriers and the possibility of transmission outside the work environment.
“It’s relatively highly contagious. … How in the world can someone really prove causation?”
But even if the cases are difficult to argue in court, the cost of litigation could be “crippling” for large businesses and mom-and-pop shops alike, Gagnon said.
“Safety protocols, training, PPE, masks, distancing practices — they’ve changed the nature of how they do business just to stay open, and they’re still struggling,” he said. “And, on top of that, to pile on the burden of lawsuits? … Litigation is expensive.”