Trial Magazine

With the support of AAJ and a coalition of allied organizations, the House passed the Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 1423) in September 2019 to eliminate the private, secretive system of forced arbitration—providing injured consumers and workers with a real choice and making it clear that plaintiffs cannot be forced into arbitration against their will. But when the pandemic hit, AAJ was forced to shift gears, from promoting civil justice to staving off what can only be described as tort “reform” on steroids.

Holding back initial immunity proposals. In March, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act to help Americans suffering from the economic fallout of COVID-19. While the Senate version contained some immunity provisions (see the On the Hill column from the June issue of Trial, p. 58, for more details), the enacted law contained only modest changes. The CARES Act provided immunity for health care volunteers treating COVID-19 patients but contained exceptions from immunity for gross negligence and willful and reckless misconduct. In addition, the CARES Act added respirators to the existing list of “countermeasures” that are given immunity in emergency circumstances under the 2005 Public Readiness and Emergency Preparedness (PREP) Act.

Congress initially thought that the CARES Act might provide sufficient relief if the virus could be brought under control quickly, but that did not happen. In May, the House passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act—essentially part two of the CARES Act with no additional immunity provisions—to continue providing economic relief to people and businesses. Sen. Majority Leader Mitch McConnell (R-Ky.) then began discussing that immunity would be his “red line” and that such provisions needed to be part of any package that the Senate considered.

The tort ‘reform’ battle continues. In late July, just before multiple important CARES Act programs expired—including the $600 weekly federal unemployment benefit—the Senate introduced a series of bills that could be mixed and negotiated into a larger bill for a floor vote. Sens. John Cornyn (R-Texas) and McConnell introduced the Safe to Work Act, one of the most sweeping tort “reform” measures ever as a potential piece of this package, with McConnell reiterating that protecting businesses from lawsuits was his “red line.”

The Safe to Work Act would apply to all personal injury claims that potentially relate to the pandemic. For example, a non-COVID hospital patient’s medical negligence claim falls under the bill because it relates to the shortage of health care workers, hospital capacity, and other resources. Businesses also are provided immunity for negligence, and to bring a claim against them for gross negligence or willful misconduct, plaintiffs must jump through ridiculous hoops—removal to federal court, a heightened pleading standard that is almost impossible to meet, severe restrictions on discovery, and a heightened evidentiary burden of clear and convincing evidence.

The bill also would eliminate joint liability except in cases of actual fraud and severely restrict noneconomic damages, which could only be awarded by a judge in cases involving willful misconduct. All compensation would be offset by any benefit received, such as an insurance policy or other government benefit. The bill also would preempt all state laws nationwide that are more protective of businesses than people.

At the end of July, as the death toll from COVID-19 continued to rise, it was clear that the Senate did not have 60 votes to pass the package and that the White House and Congress were not on the same page. The White House began negotiations with House Speaker Nancy Pelosi (D-Calif.) and Sen. Minority Leader Chuck Schumer (D-N.Y.), but those negotiations fell apart in early August, resulting in the administration issuing four executive orders—these were immediately deemed inadequate and legally questionable. Congressional action likely is still necessary, and AAJ will continue to fight any immunity provisions.

AAJ would like to return to an agenda that promotes civil justice rather than fight immunity provisions. If you have questions about the voting record of your member of Congress, please contact AAJ Public Affairs at advocacy@justice.org.

Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.