Category Archives: Tort Reform

Oregon’s Supreme Court ruled that the $500,000 cap on such damages under state law violated the constitutional guarantee of access to a remedy in the courts.

“In enacting the damages cap (in 1987), the Legislature left defendants’ common-law duty of care intact, but deprived injured plaintiffs of the right to recover damages assessed for breach of that duty,” Chief Justice Martha Walters concluded for the court majority of five.

A man who lost his left leg after a garbage truck struck him in March 2015 will now get a chance to argue for an award of noneconomic damages exceeding $500,000.  The business had already conceded liability for the injury, so the sole issue was the amount of damages.

Scott Raymond Busch, now 62, was awarded $10.5 million in noneconomic damages — known as “pain-and-suffering damages” — plus $3 million in economic damages by a jury in May 2016.  Busch’s left leg ended up under the truck and had to be amputated above the knee. Circuit Judge Michael Greenlick then reduced the award for noneconomic damages to the $500,000 allowed under a 1987 law. (That amount, if linked to inflation, would be slightly less than $1.2 million today.)

Nursing home operators are anxiously anticipating another bailout and windfall in the fourth, and likely final, coronavirus relief package from the federal government. Observers assume Senate Majority Leader Mitch McConnell (R-KY) have a proposal ready to unveil by the time he returns tomorrow. He promised lawsuit protections and further checks to long-term care operators.

Cliff Porter, senior president of governmental affairs for the American Health Care Association, told McKnight’s Long-Term Care News said long-term care providers will be lobbying for delayed paybacks for a Medicare advance payment program. Operators will be pushing for more funding in any “relief” packages, Porter said.

Lawmakers will have just a few weeks before another recess kicks in and attention shifts to the fall elections. McConnell is worried about campaign contributions. Money is at the root of all his concerns.

In May, the Editorial Board of the New York Times wrote the below on Mitch McConnell’s plan to condition money to fight the COVID-19 virus on his demand to pass tort reform for his campaign contributors.  Pathetic.

“There’s a tension at the heart of all of the plans to reopen the country in the midst of the coronavirus pandemic: The economy needs Americans to get back to work, but workplaces need employees and customers to feel that coming back won’t endanger their health or their lives.

Mitch McConnell, the Senate majority leader, seems to be concerned primarily with the first half. The biggest obstacle, as he sees it, is not a deadly disease but rapacious trial lawyers, capitalizing on the virus to chase ambulances and bankrupt American businesses.

“If people don’t come and businesses are afraid to open because of the lawyers that are lurking on the curbside outside their doors, we won’t have the reopening we want,” he said late last month. He warned of “years of endless lawsuits” from employees and customers flooding the courthouses with claims that a business’s negligence infected them with the virus. He’s called this supposed wave of litigation a “second pandemic.”

As Congress gears up for the next installment of its stimulus package, Mr. McConnell has drawn a line: No more money for anyone until businesses get immunity from liability during the pandemic. The demands being debated include making it harder to claim that a business is at fault for a worker’s or customer’s infection, protecting businesses that are making personal protective equipment like masks for the first time, and protecting employers against privacy lawsuits if they disclose a worker’s infection.

The problem is that immunity doesn’t just shield the worst actors; it also punishes the best, by giving a competitive advantage to the businesses that decide to cut corners at the expense of worker and customer health and safety.

Consider what happened in Utah, which passed a bill immunizing businesses from pandemic-related litigation in most cases and issued only advisory guidelines. The next day, the Utah Press Herald reported that two businesses had told their employees to disregard the guidelines, and even ordered those who had tested positive for the coronavirus to report to work. At one of the businesses, nearly half of all employees tested positive.

In Missouri, a meatpacking plant operated by Smithfield Foods was sued by a worker and a local advocacy group for creating a public nuisance by forcing employees to work at high speed, in close quarters and without necessary safety gear. The complaint said workers couldn’t even cover their mouths when they coughed out of fear of missing a piece of meat coming down the line. Another Smithfield plant, in South Dakota, was shut down after briefly becoming the nation’s biggest coronavirus hot spot.

A spokeswoman for Smithfield blamed the South Dakota plant’s “large immigrant population” for the outbreak. “Living circumstances in certain cultures are different than they are with your traditional American family,” she said. Putting aside the crass chauvinism here, companies shouldn’t be able to pawn off responsibility for safer workplaces on their employees.

From nursing homes to Amazon warehouses to federal prisons, workers are getting sick because their bosses didn’t take necessary safety precautions.

Demands for more corporate immunity have always been at odds with the facts on the ground. But in the coronavirus era, the Republican Party’s push has turned reality upside down.

First, there is no tsunami of litigation coming to engulf the country. As a matter of law, it’s already extremely difficult for workers or consumers to succeed with tort claims. In most states, as long as a business shows that it followed regulations or guidelines, or even just took common-sense precautions, it will usually prevail. Mr. McConnell has said he doesn’t want to grant immunity to businesses that are grossly negligent or engage in willful misconduct, but that’s a very high bar to clear.

Some business groups say this is cold comfort: Even if they would eventually win a case, they are still forced to spend time and money defending against, and often settling, frivolous lawsuits by workers or customers who blame them for getting sick. But trial lawyers work on contingency, which means they get paid only if they win. That gives them a strong incentive not to bring lawsuits that are sure losers. This is all the more true in the case of the coronavirus, because its relatively long incubation period means it is nearly impossible to prove where someone caught it.

So far, the predicted wave of lawsuits has not materialized. Instead we’re seeing suits like the one brought against Smithfield, which asks not for money damages but for the business to take the most basic safety precautions.

Second, tort law is the province of the states, which can help incentivize good behavior by allowing people to sue when they are harmed by a business’s negligence or wrongdoing. Any immunity provision passed by Congress would pre-empt these state laws, making it virtually impossible for them to protect their own citizens. Such a provision might even violate the Constitution, said David Vladeck, a law professor at Georgetown who testified before the Senate.

Everybody wins when businesses follow clear, science-based guidelines to protect health and safety: Workers and customers are less likely to get exposed to the virus, and businesses are less likely to get exposed to litigation. So where are those guidelines? In April, the Centers for Disease Control and Prevention proposed a 63-page list of safe reopening guidelines for businesses across the board: schools and day care centers, restaurants and bars, churches and mass-transit systems. But the Trump administration refused to release the list, saying it was too prescriptive and would make it harder for the economy to fully reopen. (On Thursday, the C.D.C. released an abbreviated version of the list.)

Despite pleas from organized labor, the Occupational Safety and Health Administration has so far shirked its responsibility to safeguard workers, refusing to offer anything beyond mild suggestions. This has already had consequences: A federal judge dismissed the case against Smithfield Foods in Missouri, saying it was OSHA’s job to hold businesses responsible for worker safety.

It’s no surprise that many businesses are confused about what they should do, and fearful of what might happen if they don’t do it. The answer is to give them good, clear and mandatory guidelines, not immunity from liability. Until those guidelines are in place, it’s premature to talk about granting even more immunity to businesses.

Everyone wants the American economy to reopen. The point here isn’t to punish businesses in that process, it’s to incentivize them to protect their workers and customers. This, more than any immunity, will ensure that millions of Americans can get back to work as safely and as quickly as possible.

Paul Bland is executive director at Public Justice, a national public interest law firm that works to protect environmental sustainability efforts and challenge predatory corporate conduct and government abuses.  He recently wrote about tort reform measures being pushed by the nursing home industry and others.

“In response to COVID-19, nearly every state has put in place guidelines aimed at curbing the pandemic and protecting public health and safety. Many businesses have had to shut down or at least greatly slow down, and unemployment numbers continue to climb to rates not seen since the Great Depression.

Given that grim news, it’s natural that many people are focused on how to get people back to work and jumpstart an economic recovery. Some lawmakers, however, are proposing a dangerous plan that would link efforts to revive the economy to broad immunity for corporations, blocking them from lawsuits related to COVID-19. That proposal, led by Sen. Mitch McConnell (R-Ky.), would free corporations of any responsibility — even when a corporation’s unreasonable and dangerous actions hurt people.

That’s especially precarious for workers in jobs that are at a higher risk for contracting the virus, such as meat packing plants. Recent headlines have exposed such plants as among the most problematic workplaces during the current pandemic — as well as among the least responsive to CDC guidance aimed at protecting employee and public health.

Lawmakers should be wary of putting constituents who work at those plants and in other dangerous but essential industries at risk of losing their access to the justice system.

Passage of broad national immunity will not only result in more widespread sickness (and in some cases death), but it will do little to revive the economy. In fact, evidence points in exactly the opposite direction. Americans need first and foremost to feel safe before they feel comfortable going back to work or patronizing businesses. Few people will voluntarily re-enter America’s commercial life if they believe they are taking a major risk with their lives or jeopardizing the safety of someone who is vulnerable, including older loved ones and senior citizens.

Indeed, it would hardly be reassuring to workers, consumers or anyone else if corporations are immune to accountability even when they act unreasonably and expose people to COVID-19. If Congress grants that immunity, corporations have no incentive to operate safely and will never face responsibility — no matter the corners they cut or risks they impose. Such action is likely to slow down any recovery. Who would feel safe working at, or doing business with, a big corporation that can do whatever it wants without having to face any legal accountability?

Supporters of corporate immunity, such as former Sen. Judd Gregg, who advocated in this publication for shielding corporations no matter the impact on real people and real lives, like to imagine that America will face a wave of unjustified lawsuits against innocent businesses. Gregg knows full well, however, that even under current law, corporations can only be held liable in limited circumstances. Before a worker could hold their employer responsible for an injury, for example, the company would have had to have clearly acted in a way that no reasonable business would under the circumstances — and the worker would have to show that the injuries they suffered were caused by this breach. The court system has consistently demonstrated that it is well equipped to throw out weak cases well before they ever become a threat to businesses.

However, giving corporations immunity even if they operate unsafely will also certainly mean more people get sick and die. In addition to risking the lives of their own workers, corporations that don’t prioritize safety will also be jeopardizing the health and safety of workers’ families, neighbors and the entire community in which they operate.

“Loser-pays” proposals – hitting workers who challenge unsafe conditions with ruinous fees for corporate lawyers if they narrowly lose a case — would be the same as giving immunity, ensuring no one ever steps forward.

If corporations cut corners and a second wave of infections take place, the economic consequences will be far worse than if the country opens up in a safer way. It’s in everybody’s interest to get back to work in a smart way, where workers and consumers know that corporations have an incentive to operate safely.

The Occupational Safety and Health Administration (“OSHA”) has issued guidance for businesses on how to protect workers from COVID-19, but it has insisted that these are just suggestions, not regulations. So even though a few bad actors have already had significant COVID workplace outbreaks as a result of ignoring basic safety guidance, the government is taking no steps to actually protect people. That means workers will need to protect themselves, and the courts are the only way they can do that.

Keeping our courts open and available to workers is the only way to ensure that some corporations take seriously their responsibilities to protect their people.

In truth, the proposal to limit lawsuits will only please big corporate campaign donors, but would be costly to Americans’ health and our economy. Congress should prioritize the health and well-being of the American people and our economy — and oppose any effort to immunize unreasonable corporate conduct. If proposals like those being advocated by Gregg become law, America will be less safe, and our economic recovery will be slower.