By Harold Kim
Right now, countless Americans and businesses of all sizes are working 24 hours a day to get us through the COVID-19 crisis. But as we adapt to this new normal, plaintiffs’ lawyers are also adapting by finding new issues to file coronavirus lawsuits.
Limiting litigation abuse is essential to ensuring the stability and economic recovery from COVID-19. Businesses need protection from unnecessary litigation that is sure to delay the process. Congress took that first step when it extended liability protections for the manufacturers of disposable N-95 facemasks last week.
Now the Senate’s Phase III recovery package goes even further to extend that protection to all respirators recommended by the CDC as well as volunteer health care providers at overstressed medical institutions. But more must be done to prevent plaintiffs’ lawyers from interfering with the recovery.
There’s nothing unusual about Congress stepping in, and there’s precedent for it.
In the run-up to widely anticipated problems stemming from the Y2K changeover, a bipartisan Congress passed The Y2K Act, a three-year ban on most lawsuits in state and federal courts over economic losses associated with Y2K glitches. The bill’s chief sponsor, the late Sen. John McCain, said at the time “there was a realization on both sides of the issue that this legislation is critical to the future of American business, and if it wasn’t passed and signed into law in a timely fashion, . . . lawsuits could cripple the economy.”
Congress acted again after the Sept. 11 terrorist attacks and passed the 9/11 Victim Compensation Fund. The law channeled all state and federal lawsuits into federal court in New York, eliminated punitive damages, and protected airlines against liability exceeding their insurance coverage. In exchange for forgoing litigation, the law offered generous payments to the families affected by the attacks. Most took the deal. Some $38 billion flowed to legitimate claimants and frivolous, court-clogging litigation mostly curtailed.
In 2002, as part of the Homeland Security Act, a bipartisan Congress passed the SAFETY Act. Congress recognized the role technology companies can play in the fight against terrorism, so the SAFETY Act protects companies that create anti-terrorist products from needless litigation.
States can and must play an equally important role to keep resources focused on fighting COVID-19, not lawsuits. New York Governor Andrew Cuomo extended liability protections to medical professionals treating COVID patients, while the state’s court system put all “non-essential” litigation on hold.
Once again, in a time of uncertainty, lawsuits could disrupt the essential role businesses must play in overcoming the crisis and in the recovery. We aren’t entirely through this pandemic, and the litigation wave is already starting to form.
It’s critical that America right now treats the sick, prevents the spread of infection, and gets the right products to caregivers and consumers as rapidly as possible.
Businesses have enough to worry about right now. Lawsuits shouldn’t be one of them.