Daniel Hemel on How Tort Liability Reform Would Help COVID-19 Contract Tracing

We can't stop the pandemic unless we change liability law

Senate Majority Leader Mitch McConnell (R-Ky.) unveiled a fifth coronavirus relief plan Monday that gives businesses broad immunity from coronavirus-linked lawsuits. Democrats, meanwhile, have dismissed the idea of immunity for businesses as a nonstarter. With federal pandemic unemployment benefits expiring Friday, the need for a congressional compromise is urgent. The liability issue is likely to be a sticking point.

Fortunately, there is room for a principled compromise. Businesses don't need blanket immunity from coronavirus lawsuits, and Congress shouldn't give it to them. But a narrower liability carveout for businesses that engage in proactive contact-tracing efforts would make sense — both for the economy and for public health. The House and Senate can't agree on much these days, but they should be able to agree on this.

The "avalanche" of covid-19 lawsuits that McConnell and his allies predicted in April has yet to arrive. According to data from the law firm Hunton Andrews Kurth, consumers and employees across the country have filed fewer than 100 personal-injury and wrongful-death suits arising from covid-19 exposures workplace or business settings.

Still, McConnell says that the inclusion of liability reform in the next round of pandemic aid is a "red line," without which Republicans won't pass the package. Under the plan released Monday, a plaintiff suing a business for injuries arising from a coronavirus exposure would need to prove by "clear and convincing evidence" that his or her injuries were caused by the defendant's gross negligence. Even then, the defendant could escape liability if it was complying with government guidance.

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