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Legal Experts: McConnell’s HEALS Act Is ‘Bonkers’ If Goal Was To Make Coronavirus Litigation Less Costly


Senate Majority Leader Mitch McConnell (R-Ky.) on Monday released the Republican Party’s $1 trillion coronavirus economic relief package, called the HEALS Act. (HEALS stands for Health, Economic Assistance, Liability Protection, and Schools). In describing the plan, McConnell has emphasized that staunch litigation protections for businesses were needed to protect against “an epidemic of lawsuits” that he suspected would arise if workers sued their employers over coronavirus exposure. Legal experts pointed out that there has been a dearth of such lawsuit. Now, if they were to materialize, the HEALS Act would only make the process more costly and more burdensome, they say.

While McConnell warned about an inevitable “avalanche” of personal injury lawsuits, according to a coronavirus complaint tracker from law firm Hunton Andrews Kurth, less than 200 of the nearly 4,000 lawsuits filed in relation to the pandemic were filed as personal injury suits – the kind McConnell said would become an “epidemic.”

“The evidence suggests there has been no explosion in legal claims related to Covid,” Nicole Berner, general counsel for the Service Employees International Union, told Politico Monday evening.

Berner said the bill created an “escape from legal liability” for businesses, adding that what was needed for the average employee was “more protections, not less.” But that would result in litigation against businesses — which the bill arguably seeks to avoid.

University of Chicago law professor Daniel Hemel said the bill was “pure political posturing” and claimed the measure’s litigation protections would contradict its purpose while being nearly impossible to implement.

“The good thing about tort liability in a pandemic is that it encourages potential defendants to take precautions.  The bad thing about tort liability in a pandemic is that it sometimes discourages potential defendants from taking measures *after* transmission of the virus to inform potential plaintiffs of what’s gone on,” Hemel wrote in an email to Law&Crime.

“McConnell’s bill gets rid of most of the good, doesn’t entirely deal with the bad, and creates a super-complicated federal-state legal regime along the way that could well raise overall litigation costs.”

Hemel also wrote an extensive Twitter thread pointing out some of the problems that will result from the bill’s overly complex litigation procedures.

He first noted that the bill’s “safe harbor” provisions – which are supposed to protect businesses, schools, and healthcare providers from liability – is actually “a lot more than that.”

“It eliminates *all* state tort liability arising from coronavirus exposure & replaces it with a new, highly limited federal ‘coronavirus exposure action,’” he wrote. “A plaintiff must prove by ‘clear and convincing evidence’ (as compared to normal ‘more likely than not’ standard) that the defendant ‘was not making reasonable efforts…to comply with applicable government standards/guidance’ and was engaged in ‘gross negligence’ or ‘willful misconduct.’”

Adding to a potential plaintiff’s difficulties, those filing lawsuits must show that their employers’ conduct was the “actual cause” of their injury by “clear and convincing” evidence.

According to Hemel, this “is a very high bar to reach, particularly given uncertainties about SARS-CoV-2 transmission.”

A more technical problem arises regarding the Act’s jurisdictional provisions, which give federal district courts concurrent original jurisdiction over all cases concerning coronavirus litigation and permits litigants to remove cases from state court to federal court.

This provides the very real chance that federal district courts, which for the most part already handle a grueling caseload, will be flooded with new coronavirus litigation.

In addition to the district courts being put in jeopardy of overloading, the legislation also threatens appeals courts at the circuit level.

“The bill allows interlocutory appeal to the circuit courts for denial of a motion to dismiss. (So if there really is a flood of claims, not only will we be flooding federal district courts—we’ll be flooding circuit courts too!),” Hemel wrote.

“All in all, the bill—if it became law—would be a total mess to implement. Coronavirus exposure actions are federal actions—that’s how we can give federal courts original jurisdiction over non-diverse suits under Article III,” he wrote. “So the federal courts will have to create a new ‘federal common law of corona.’ This is going to be great for advanced torts and fed courts professors, but totally bonkers if your goal is to make litigation less costly & less complicated.”

In other words, the bill makes litigation more burdensome — and, its critics might argue, less likely to succeed.  But that might be the plan.

The bill is just a proposal; it is not yet law.

[image via Drew Angerer/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.