Veto Of Pa. Virus Liability Bill Thwarts Tort Reform 'Grab Bag'

By Y. Peter Kang
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Law360 (December 4, 2020, 8:24 PM EST) -- Pennsylvania Gov. Tom Wolf's recent veto of a controversial bill aimed at shielding businesses from COVID-19 injury suits puts an end to a tort reform "grab bag" put forth by GOP lawmakers, according to attorneys, who added that the move won't have much practical effect on litigation.

House Bill 1737 would have provided a legal safe harbor for health care facilities and a broad range of businesses for actual or alleged exposure to COVID-19 when good-faith efforts were taken to comply with public health guidelines. However, the Democratic governor said the bill went too far in shielding businesses from civil claims during the pandemic and created a potential safety risk.

"This legislation provides broad, overreaching immunity from civil liability during the current pandemic," Wolf said in a Nov. 30 veto statement. "Shielding entities from liability in such a broad fashion as provided under this bill invites the potential for carelessness and a disregard for public safety."

Attorneys surveyed by Law360 said the proposed legislation was an attempt by members of the Republican-controlled legislature to appease special interest groups keen on enacting tort reform.

"The bill is very clear that it is a grab bag of every tort reform measure proposed in the last 10 to 15 years and had little to do with COVID-19," said Cliff Rieders of Rieders Travis Humphrey Waters & Dohrmann in Williamsport.

The plaintiffs-side personal injury attorney said the bill had a number of liability protections for lenders, fiduciaries, farmers and economic development agencies that had nothing to do with coronavirus infections or exposure.

"In fact, the section dealing with anything to do with COVID-19 was the smallest section of the bill," he said. "That tells me that it was not a COVID-19 immunity bill at all but a cynical attempt to make the public believe that those who provide COVID-19 services are in danger of being sued when they clearly are not."

Personal injury attorney Eric Weitz of The Weitz Firm LLC in Philadelphia said the proposed legislation went beyond true coronavirus issues.

"If you look at the way it was constructed, the types of immunity that it was looking to give is for general business practices which could arguably apply beyond simple COVID," he said.

Weitz added that because of the relatively few coronavirus-injury cases filed thus far, the bill was an attempt to fix a problem that doesn't exist.

"The presumption is businesses won't reopen because they are worried about COVID liability, which is a big leap to begin with," he said. "This fear of lawsuits, when there has been relatively few, seems to be a contrived fear."

Only a handful of suits have been filed so far in Pennsylvania over allegations related to COVID-19 exposure, including two cases brought against a Pittsburgh-area nursing home on behalf of a group of residents — 10 of whom ultimately died from the disease — and a housekeeping staffer who also passed away after contracting the coronavirus.

Another suit filed in May alleged that unsafe working conditions at a JBS SA meatpacking plant outside of Philadelphia resulted in a union steward contracting and ultimately dying of COVID-19.

Rieders said the fact that lawmakers didn't make any efforts to integrate the proposed coronavirus protections with current protections such as Pennsylvania's Good Samaritan Law, which limits health care provider liability during emergencies, shows there wasn't a serious effort to get the bill enacted.

Instead, Rieders said the bill was a means for GOP lawmakers to both cater to special interest group donors and raise funds for a future challenge to any Democratic successor to Wolf, whose eight-year tenure ends in about two years.

"Those folks who supported this bill get a lot of money from interest groups that have been agitating for these kinds of immunities for years. It was an attempt to provide a Christmas gift to those donors despite knowing full well that it would face a veto because of its breathtaking scope," he said. "It was also a vehicle to launch opposition to future gubernatorial candidates ... and an opportunity to beat up on the governor."

But William Mundy of Burns White LLC, a health care defense attorney based in suburban Philadelphia, said Wolf could have worked with the legislature to craft a compromise bill but declined to do so.

"The governor seems to like operating by executive fiat instead of the good old constitutional way of working with the other side," said Mundy, referring to Wolf's Nov. 23 executive order granting limited liability protection to businesses that face lawsuits over mask enforcement policies.

"These executive orders are written to look good in press releases but in practical application they have almost no effect," he said.

Regardless of the political motivations behind the failed bill, the attorneys said the impact of the veto on coronavirus litigation is expected to be minimal.

Rieders said coronavirus-related injury suits will continue to be adjudicated on the merits in a state that already requires a physician's certificate of merit essentially vouching for an injured plaintiff's claim against licensed professionals such as doctors.

Mundy said the veto eliminates just one possible barrier to suits when a number of other barriers exist, such as potential immunity under the federal Public Readiness and Emergency Preparedness Act.

"Assuming cases get beyond the PREP Act, the next level of defense would be the state immunities," he said. "To the extent it would get past federal and state [barriers] it would then go to the traditional standard of care, breach and causation."

While Mundy said he doesn't expect lawmakers to make additional efforts to get a coronavirus liability shield on the books in the near future, Rieders said he wouldn't be surprised to see another bill floated in the next session.

"The legislature is always introducing immunity bills because someone is always paying for them, asking for a free pass from responsibility and accountability," he said.

--Additional reporting by Matt Fair. Editing by Breda Lund.

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