Everyone has been impacted profoundly by the COVID-19 pandemic. As we gradually move to the economic recovery phase, another peril looms large – litigation.
Just like the girl in the horror film “Poltergeist” who stared at the T.V. and exclaimed, “THEY’RE HERE!” we are starting to see demons in our televisions in the form of trial lawyer ads that prey on the anxious and grief-stricken with promises of monetary relief for COVID-19 exposure. More are on the way. Hundreds of lawsuits already have been filed. More are on the way.
What are the targets and potential claims?
- Businesses for exposing customers to the virus
- Businesses for exposing employees to the virus
- Manufacturers for producing treatments, tests, or equipment that do not perform perfectly
- Companies for not giving adequate warning to investors regarding the economic impact of the pandemic
- Health care facilities and providers for decisions made under challenging circumstances, often in accordance with government directives
In some cases, plaintiffs’ lawyers will file large class action lawsuits against deep pocket companies. In others, they will pressure smaller businesses into quick settlements, holding over them potential reputational damage and massive costs associated with litigation. This Hobson’s Choice will factor into decisions about whether to reopen.
In an effort to perform at least a partial exorcism, policymakers are considering liability protections. Some governors have issued executive orders granting protections for health care providers. A few state legislatures have passed broader protections. The White House deems protections for businesses and providers essential to recovery. Senate Republicans are developing legislation.
Some advice for companies:
- Work with trade associations and legal reform groups that are advocating for protections at the state and federal levels. They can arm you with talking points, draft op-eds and other tools to make your voice heard.
- Be clear on messaging when speaking with policymakers and the press. Businesses are not seeking immunity. They are asking for narrow, temporary COVID-related liability protections for businesses that act reasonably. Bad actors will not be entitled to protections.
- Ensure compliance with relevant state and federal guidelines for reopening, as this may offer a safe harbor.
Cynthia W. Berry is a founding member of the Poligage Experts Network. She is the President and CEO of Micros Strategies LLC and has for the last seven years led a legal reform organization comprised of General Counsels of Fortune 100 corporations. Cynthia has spent 30 years working as a policy and business leader in the healthcare industry.
Book a private consultation with Cynthia today at Poligage.com to discuss the potential impacts of COVID-19 liability legislation on your organization and how to engage in this area effectively.