By Y. Peter Kang

Law360 (July 20, 2020, 11:41 PM EDT) -- Plaintiffs attorneys and consumer advocacy groups on Monday decried Senate Majority Leader Mitch McConnell's proposal to provide a liability shield for businesses as part of the next COVID-19 relief package, saying the proposal is "morally reprehensible" as it could result in an increase in infections.

Senate Republicans recently released proposed terms of a liability shield that would give businesses, schools and frontline medical professionals five years of limited immunity from civil suits related to exposure to the novel coronavirus, so long as they can establish that they made "reasonable efforts" to follow applicable public health guidelines and did not commit gross negligence or intentional misconduct.

Under the proposal, all coronavirus-related personal injury and medical malpractice suits will be heard in federal courts and be subject to "heightened pleading standards, clear-and-convincing-evidence burden of proof, and damages caps."

"Our country can't afford a second epidemic of frivolous lawsuits while we fight the COVID-19 pandemic," McConnell said in a statement posted on Monday via Twitter. "The next relief package should focus on four things: Jobs, healthcare, kids in school, and liability protections for those helping us fight the coronavirus."

But consumer and worker advocacy groups said this purported threat of a flood of coronavirus-related litigation has simply not materialized and if businesses are shielded from such suits it could increase the number of COVID-19 infections.

"Sen. McConnell is more concerned about an imaginary epidemic of lawsuits than he is about the reality of the worst pandemic to hit this country and the planet in the last century," said Robert Weissman, president of Public Citizen, a nonprofit consumer advocacy group, during a Monday call with reporters.

Weissman said the proposal would cause public health problems because it would encourage and facilitate wrongdoing by businesses who needn't fear legal actions over coronavirus safety compliance.

"There is a certainty that if this proposal moves forward there will be more needless endangerment of workers," he said. "The deterrent effect of these lawsuits, as few as they are, can't be overstated."

That sentiment was shared by Julia Duncan, senior director of government affairs for the American Association of Justice, an advocacy group for plaintiffs attorneys.

"Lawsuits only require businesses to act reasonably," she said during the call. "Businesses that fail to act reasonably know they can be subject to a lawsuit. If Congress wiped away this possibility, all businesses will know they can act unreasonably and not be held publicly accountable. This means businesses will cut corners on safety and more people will get sick."

She, too, highlighted the fact that there has not been a surge of coronavirus-related suits over the past few months, despite millions of COVID-19 cases.

"The reality is that there are not many lawsuits being filed and Sen. McConnell is misleading the American public every time he says as much," she said.

Duncan said her greatest hope is that businesses and the Trump administration take reasonable steps to protect workers and customers from COVID-19 exposures and potential deaths.

"But at a time when we have zero leadership from this administration and zero science-based, enforceable standards that all businesses could implement which could statistically reduce the rates of deaths and injuries, to be talking about immunity is not only bad policy but it is morally reprehensible," she said.

Weissman said Senate Republicans' proposal is additionally problematic because the language states that a business only needs to demonstrate it made a "reasonable effort" to comply with public health guidelines. But safety standards issued by federal agencies such as the Centers for Disease Control and Prevention make clear that they are only recommendations, not mandates.

"They give some guidance but the key elements are recommendations," he said. "You don't have to do them, you only have to consider it. 'If feasible, if practical,' you don't actually have to do the thing to be within the guidance."

Citing coronavirus-related lawsuits filed against consumer retail giant Amazon as well as litigation involving meatpacking plants and nursing homes where dozens of outbreaks have occurred, Duncan said "these are the cases that matter because they are forcing a conversation about safety that isn't being talked about in the [Trump] administration."

She added, "immunity proposals of this kind should be soundly rejected."

--Editing by Emily Kokoll.

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