GOP's COVID-19 lawsuit immunity effort shifts to the states

Five Southern states have banned negligence lawsuits over COVID-19, and another five are considering it. Data from Husch Blackwell, via JDSupra.

The $1.9 trillion stimulus package moving through Congress does not include the immunity provision shielding businesses from lawsuits over COVID-19 demanded by Senate Minority Leader Mitch McConnell of Kentucky. This has led Republican lawmakers in Florida and other states to renew their push to protect corporations from being held legally accountable for exposing workers and consumers to the deadly virus. 
Last week, the GOP-controlled Florida House of Representatives passed a bill that provides broad immunity from COVID-19 lawsuits to businesses, nonprofits, schools, and other government entities. William Large, head of the business-funded Florida Justice Reform Institute (FJRI), praised the bill and said it would let the state get back to work without the fear of lawsuits." The state Senate, also under Republican control, is expected to pass a similar bill this week.
The measure was opposed by labor unions, consumer advocates, and the Florida Justice Association, a group of lawyers who represent injured workers and consumers. Steve Cain of the FJA said the bill, which is moving rapidly through the legislature, would take away "all incentives for businesses to do their best" at keeping workers and customers safe. 
The law would provide immunity as long as the business made "a good faith effort to substantially comply" with government-issued standards. A Democratic legislator pointed out that the bill insulates the government itself from accountability if it creates and follows its own guidelines, regardless of how lax they are. 
The measure also requires an infected worker or consumer, or their surviving families, to meet a much higher legal standard than in ordinary injury cases. They'd have to convince a court that the defendant was "grossly negligent," instead of just proving they acted unreasonably. 
Before they even get the chance to prove their case, the plaintiffs would have to provide an affidavit from a practicing physician, swearing that the infection was caused by the defendant's acts or omissions "within a reasonable degree of medical certainty." The FJA's Cain described that as "an obstacle that's frankly impossible to overcome" because physicians won't have the evidence needed to make that determination. 
Republicans shot down amendments offered by Democrats, including proposals to remove the need for a physician's affidavit and exempt lawsuits filed by school employees and first responders. 
The Florida Senate will soon take up a similar bill, along with another proposal that provides broad legal immunity for health care providers over COVID-19 exposure. That includes nursing homes, which have been hit especially hard by the virus. Jeff Johnson of the Florida chapter of AARP, an advocacy group for people over the age of 50, noted that 9,000 Florida nursing home patients have died from COVID-19 "without family by their sides."
"Now the Florida legislature would strip from grieving families the right to seek justice for deceased and injured loved ones who may have been hurt or killed by negligent care," Johnson said. Republicans in the state House are working on a similar bill.
None of the Florida immunity bills apply to lawsuits that have already been filed. The family of Gerardo Gutierrez of Miami Beach, for example, filed suit against his former employer, the Publix grocery store chain headquartered in Lakeland, Florida. When the pandemic began, Publix initially banned facial masks at the workplace and refused Gutierrez's request to wear one. He died from COVID-19 last April.
In December, Publix cosponsored a conference that included a golf tournament for legislators and corporate executives to discuss legal immunity from COVID-19 lawsuits. Republican Gov. Ron DeSantis, who spoke at the conference, has called on lawmakers to pass immunity legislation. 
The governor encountered criticism for reopening his state last fall, even as COVID-19 cases were still surging. DeSantis recently touted his handling of the pandemic. "While so many other states were locking people down over these many months," he said, "Florida lifted people up."
Nearly 2 million Floridians contracted COVID-19, and tens of thousands died. The DeSantis administration has been criticized for attempting to downplay or cover up the number of deaths. 
The governor has said he'll sign the bills. When he does, Florida will join dozens of other states that have already banned negligence lawsuits over COVID-19 exposure. 
COVID-19 legal immunity bills are pending in legislatures nationwide, including in the Southern states of Arkansas, Georgia, Kentucky, and South Carolina, according to a roundup by the Husch Blackwell law firm. Except for the Kentucky bill, these measures build on existing laws or executive orders. The Georgia bill, for example, would extend the temporary legal immunity that the legislature conferred on businesses in a May 2020 bill that borrowed language from a corporate lobbyist. In some of these states, thousands of meatpacking workers were infected with COVID-19.
Almost all of these bills and executive orders were enacted by Republican officials. But in North Carolina, the GOP-controlled legislature unanimously passed a ban on most negligence lawsuits last May as part of a broader COVID-19 bill. Gov. Roy Cooper, a Democrat, signed it into law.
These bills are supported by state Chambers of Commerce and other corporate-funded groups that have long pushed for limits on lawsuits filed by injured people. These so-called "tort reform" groups were initially established decades ago by Big Tobacco, pharmaceutical companies, and other corporations that didn't like being sued. They pushed misleading propaganda about "frivolous lawsuits" to justify limits on jury verdicts, even though these limits have the greatest impact on plaintiffs with the most severe injuries. 
Republicans in the Florida legislature are using similar rhetoric. Meanwhile, the FJRI searched for notices of potential lawsuits received by businesses and found only 53 filed in a state of 21.5 million people, one-fifth of whom are elderly. Lawsuits have been filed against Publix, cruise lines, health care providers, and jails. 
Rich Templin of the Florida AFL-CIO criticized the GOP's argument. "There seems to be this assumption that lawyers are just evil devils and workers are just freeloaders looking to sue, and the business community is just saints and angels," he said. "And that's just not the reality."