By Bob Barr
On Tuesday, Sen. Lindsey Graham is holding a Judiciary Committee hearing to consider “Examining Liability During the COVID-19 Pandemic.” The subject could not be more timely or important.
When Sen. Graham and I served together on the House Judiciary Committee 18 years ago, we understood that in the aftermath of 9/11 the threat of lawsuits was an impediment to innovators developing the antiterrorism tools that America needed to remain safe and secure. That is why we came together with the rest of the Congress to pass the SAFETY Act of 2002, which granted liability protections to companies developing antiterrorism technologies.
The SAFETY Act worked extremely well in the years following those attacks, allowing the Department of Homeland Security to approve over 1,000 critical technologies and services to fight terrorism. Now, Graham appears ready to lean on this precedent, to safeguard the innovators and public servants experiencing similar anxieties as they strive to meet the challenges presented by the Coronavirus pandemic.
Graham has long recognized the need for lasting reform of our legal system. Just last year, he remarked that, “litigation abuse is real” and that “class action reform is something we probably should look at.” But while long term reorganization of the legal system is a matter necessitating long and careful study, the need for a COVID-19 liability shield is as urgent as any we ever have faced.
The Washington Post even conceded in a recent column that, “Fear of covid-19 lawsuits is not mere Republican reflex,” suggesting that now is the time for bipartisan action.
Just as counterterrorism specialists were most at risk of abusive litigation after 9/11, frontline health care workers are now the primary targets of such suits during this public health crisis. But nursing homes that followed government orders to accept contagious patients, and emergency room doctors and nurses who were forced to make tough decisions while having to cope with shortages of supplies and equipment, should not now have to worry about costly liability lawsuits.
Moreover, private sector innovators trying mightily to develop a vaccine for COVID-19 should not be hampered in such vital work because of potential lawsuits.
While the health care industry may be target number one, no business is immune from what Sen. Mitch McConnell has described as “the lawsuit pandemic.” The Washington Post recently provided a lengthy list of frivolous suits that already are rippling through businesses across the country. As the Post describes the situation: “Airlines have been sued over grounded flights; ticket brokers have been sued over canceled events; insurers have been sued over coverage limits; grocers and Internet retailers have been sued over rising prices; . . . universities have been sued over campus closures; amusement parks have been sued over unusable season passes; ski resorts have been sued over refunds.”
Even now, as governors begin to pull back from emergency measures and spark our economic recovery, the U.S. Chamber of Commerce notes that legal liability has many businesses thinking twice about opening back up. Given the widespread uncertainties about the future of the virus, their concerns are most certainly valid.
In recent weeks, some Democrat and Republican governors have passed liability protection measures, but these vary widely in scope. A patchwork quilt of such protective measures that vary from state to state is simply not the best way to address the problems created by this emergency which is, by every measure, national.
The Congress has a clear responsibility to set the parameters and to provide consistent protections across all needed facilities, providers, and businesses. It has done this before, and it must do so now, in this national emergency.
As Sen. Graham’s Judiciary Committee colleague, Thom Tillis (R-N.C.), summed it up on an April 29th Fox News interview: “We passed liability protections after 9/11. If we don’t do it here, then [Congress] is directly responsible for shutting down businesses that are essential businesses that are critical to the recovery.”
A COVID liability shield will not stop all virus litigation, and nor should it. Still, it will curtail many frivolous suits against America’s pandemic responders by making proof of negligence and recklessness the predicate standard necessary to pursue claims. This worked after 9/11, and it will work again if Congress steps up to the plate and acts. America’s doctors, nurses, nursing homes, innovators and businesses are counting on it.
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003 and served as the U.S. Attorney for the Northern District of Georgia from 1986 to 1990. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.