The state is apparently on the path to granting businesses, schools and just about every other conceivable organization broad immunity from liability in COVID-19 lawsuits, meaning organizations and individuals would not be liable for their own COVID-related negligence.
While organizations in favor of the liability protection say it is needed to stop a flow of frivolous lawsuits, a group representing trial lawyers said those lawsuits do not exist.
Each house of the legislature has passed its own version of immunity protection. Neither the assembly nor the senate bill would provide protection for “reckless or wanton conduct or intentional misconduct.” The version adopted by the assembly specifies, however, that violating an order to close or limit the capacity of an entity is not reckless or wanton conduct. The senate version does not include that sizeable loophole.
WMC’s Footnote Problems
Wisconsin Manufacturers & Commerce supports them both. In its legislative testimony, WMC said “the business community is now faced with an epidemic of largely frivolous lawsuits.” WMC did not, however, identify any Wisconsin lawsuits.
“Advertisements soliciting plaintiffs for COVID-19 related mass tort lawsuits are up,” WMC said, and in a footnote cited as a source a Legal Newsline story that did not say that. Instead, the story features the ads of four very small, out-of-state law firms that mention or allude to the pandemic, but that do not solicit clients for mass torts. In the ads “lawyers searching for business are touting their abilities to handle problems the coronavirus poses in the legal community,” the story says.
WMC also cites a Reuters story for the same “mass tort” statement, but that story doesn’t really support the WMC, either. Instead, the Reuters story that says lawyers are buying more TV ads looking for clients for lawsuits against drug and consumer products manufacturers because advertising prices have dropped amid the pandemic. The story does not say the law firms are seeking to file COVID-related lawsuits. Actually, a Reuters article on January 21, 2021 stated that lawyers’ advertising for plaintiffs for tort clients was down 33% from last year.
Jay Urban, president of the Wisconsin Association for Justice, which represents lawyers, said there have been no COVID liability suits filed in Wisconsin and the liability protections proposed are not needed. If there are lawsuits down the line, the courts already are equipped to handle them, he said. “Our system is set up to handle all kinds of situations,” he said in an interview. The Seventh Amendment to the U.S. Constitution guarantees the right to have civil disputes tried by a jury, he said. “WAJ believes that the civil justice system and trial by jury should be unhindered by immunity,” he said. “WAJ, on behalf of consumers, is very much against anything worse and this is one step that is unnecessary and less safe than the status quo.”
Nearly half a million state residents have been diagnosed with COVID-19 and almost 5,000 have died, the association said in its legislative testimony. “And yet, to our knowledge, not a single workplace safety lawsuit has been filed in Wisconsin,” WAJ continued. “If the actual prevalence of litigation matched the fears of litigation described by some today, you would see hundreds or even thousands of lawsuits already filed. And yet, they have not been”
Immunity would not stop lawsuits
In any event, the immunity protections included in bills before the senate and assembly would not stop lawsuits from being filed, although they could discourage some potential suits. Organizations and individuals could still be sued and incur costs of defending against those suits.
Those offering legislative testimony in favor of immunity spoke of frivolous lawsuits and litigation costs, but generally did not mention those sickened by the disease through negligence or carelessness who may look to civil courts for relief. Urban said the fear of a flood of frivolous suits is unfounded, no matter how many times that specter is raised. “Just because you say something doesn’t make it true,” he said. “There is no such thing as a get-rich-quick frivolous lawsuit.”
Current litigation standards would require a plaintiff to prove that a specific exposure led to an infection—something that, since people have so many potential sources of exposure—is almost impossible to do, he said. Other opponents to liability immunity measures have argued that the protections could give a competitive advantage to businesses (and other organizations) that are less careful about protecting workers, customers, and clients.
Gretchen Schuldt is Executive Director of Wisconsin Justice Initiative.