The liability provisions in McConnell’s “HEALS Act” do not reflect a serious attempt to address problems with the tort system. This is pure political posturing (thread) 1/
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I say this as someone who has come out in favor of targeted tort reforms to address particular problems arising from the intersection of tort liability & the novel coronavirus (papers.ssrn.com/sol3/papers.cf) cc 2/
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As a preliminary matter: The “purpose” provisions of a statute don’t much matter, but the purpose provisions here are really from Mars. 3/
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McConnell predicted an “avalanche” of coronavirus exposure lawsuits; no such avalanche occurred; so now he’s shifted toward warning of a “risk of a tidal wave.” Can’t we at least keep our hydrological metaphors straight? 4/
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There also are needless digs at “opportunistic trial lawyers” (rather precious for a Senate GOP that is opportunistically inserting goodies for its Chamber of Commerce base into must-pass relief legislation). But onto the substance … 5/
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The bill’s “safe harbor” is a lot more than that. It eliminates *all* state tort liability arising from coronavirus exposure & replaces it w/a new, highly limited federal “coronavirus exposure action” 6/
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A plaintiff must prove by “clear & convincing evidence” (as compared to normal “more likely than not” standard) that the defendant “was not making reasonable efforts…to comply w/applicable gov’t standards/guidance” & was engaged in “gross negligence”/“willful misconduct” 7/
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The plaintiff also must prove actual causation by a clear-&-convincing standard, which is a very high bar given uncertainties about SARS-CoV-2 transmission. 8/
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“Applicable gov’t standards/guidance” refers only to *mandatory* standards. So if there’s no state/local mask mandate & a restaurant owner bars servers from wearing masks, resulting in an exposure, then there would appear to be no liability under McConnell’s bill 9/
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Btw, there is a carveout for state/local criminal/civil/administrative enforcement actions. So in the unlikely chance this passes & a state wants to devise a workaround, just create a “Consumer Compensation Board” & channel what-would’ve-been-tort-actions there 10/
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The bill also creates a rebuttable presumption that if a business has a written policy re mitigation of transmission, the business has followed that policy. (???} & it raises the bar in covid-19-related medical malpractice cases to gross negligence 11/
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Punitive damages can’t exceed compensatory damages, & the collateral source doctrine is repealed w/out any apparent right to subrogation (ie, neither you nor your insurer can recover insofar as damages = covered by insurance) 12/
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The bill gives federal district courts concurrent original jurisdiction over all coronavirus exposure actions & allows any defendant to remove a case from state court to federal district court 13/
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It then imposes some very high pleading requirements on plaintiffs. Basically, a complete accounting of where you were & who you saw in the 14 days prior to symptom onset. & an affidavit from a physician must be attached to the complaint 14/
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The bill allows interlocutory appeal to the circuit courts for denial of a motion to dismiss. (So if there really is a flood of claims, not only will we be flooding federal district courts—we’ll be flooding circuit courts too!) 15/
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The bill allows a potential defendant who receives a demand letter to sue the prospective plaintiff if the claim = “meritless” (not just “frivolous”) + recovery of attorneys’ fees + punitive damages (which are uncapped). What’s good for the goose is not good for the gander 16/
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Fortunately, the bill leaves state workers’ comp untouched. Employees who are exposed to SARS-CoV-2 in the workplace still will likely (not certainly) be able to recover through that route. (So that’s a positive ….) 17/
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All in all, the bill—if it became law—would be a total mess to implement. Coronavirus exposure actions are federal actions—that’s how we can give federal courts original jurisdiction over non-diverse suits under Article III …. 18/
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… So the federal courts will have to create a new “federal common law of corona.” This is going to be great for advanced torts & fed courts professors (😀), but totally bonkers if your goal is to make litigation less costly & less complicated 19/
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Btw: If you’re interested in *serious* covid-19 tort reform ideas: twitter.com/DanielJHemel/s. 20/20
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A few final points:
This is not (primarily) about the economy vs. public health. To have a functioning economy again, we need to contain the virus. Liability can make that easier ... or harder. A public health framework for liability can yield economic payoffs too 8/
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