A Gov. Bill Lee-backed measure that will shield public and private entities from legal liability over COVID-19 deaths or illnesses was approved by Tennessee lawmakers on Wednesday along party lines.
The measure establishes high legal hurdles for anyone — an employee, a customer or a surviving loved one — who allege they contracted COVID-19 as a result of negligence to file and win civil lawsuits.
The bill includes a “grandfather” clause: Any lawsuit filed on or before August 3, the day Lee announced a special session to consider the liability measure, can still go forward.
It also requires anyone filing a claim to obtain a written expert medical opinion that the harm suffered was a direct result of the entity’s actions.
Responding to criticism that the measure protects bad actor businesses who flout public health rules at the expense of citizens, the bill’s sponsor — Sen. Mike Bell, R-Riceville — said it was designed to protect taxpayers, who would be on the hook for the costs of lawsuits, settlements and court awards.
“Will this bill offer a higher level of protection against being successfully sued over COVID to a nursing home, a hospital, another type of healthcare facility? It will,” Bell said.
“Will it offer protection to Amazon? Absolutely. Nissan? Yes. Volkswagen? Yes. But it will offer protection to your bakery in your town square in Eagleville, if you have a bakery in Eagleville. It will offer (protection) in Dyersburg. In Madisonville to the art store. It will provide a level of protection to your K-12 school.”
“This bill is going to save taxpayer money, because it’s going to stop frivolous lawsuits against our schools and local governments,” Bell said.
Democratic lawmakers criticized the measure as protecting bad actors who placed employees, customers and others at risk by refusing to enforce mask rules, establish safe working conditions, forcing sick employees to work or keeping secret any known exposures to COVID in the workplace.
The legislature would prefer to immunize the worst actors - even those that openly flout public health orders - rather than hold them accountable. – Nashville lawyer Chris Smith
Sen. Jeff Yarbro, D-Nashville, said lawmakers were being contacted by leaders of public schools, nursing homes and hospitals, worried they face legal liability even if they follow all public health rules.
“At some level those good actors are being used as a human shield against people who are doing the wrong thing,” Yarbro said.
Yarbro’s efforts to amend the measure by including language exempting entities that had a pattern of ignoring public health measures.
“It’s not too much to say if someone has engaged in a consistent pattern or practice of avoiding all public health orders or public health guidance they shouldn’t receive the extraordinary protections this legislation provides,” Yarbro said.
The bill says that any entity, either governmental or private, will not be liable for an illness or death from COVID-19 unless individuals seeking to hold them accountable are able to prove by “clear and convincing evidence” that the harm suffered was a result of “gross negligence or willful misconduct.”
Chris Smith, an attorney with medical malpractice and personal injury law firm David Randolph Smith & Assoc, said the measure will make it “nearly impossible” to prove a public entity or private company’s negligence.
The measure raises the burden of proof standard typical in civil lawsuits from “preponderance of evidence” to a higher “clear and convincing evidence” standard. It also raises the threshold for what is considered a breach of legal duty from negligence to “gross negligence.”
“Proving that an individual contracted COVID because of negligence was already going to be difficult before this law was passed—it is now going to be nearly impossible,” he said. “The legislature would prefer to immunize the worst actors—even those that openly flout public health orders—rather than hold them accountable.”
“As an example, that crazy Fashion House party in East Nashville that has now resulted in criminal charges—the legislature just gave those people immunity,” Smith said.
The east Nashville party on August 1 drew criticism after photos and videos of crowded attendees, and lewd behavior, in defiance of public health guidelines circulated across social media.
Two of the party’s organizers have been arrested and charged with violating emergency health orders.
Gov. Bill Lee has long been an advocate for tort reform. As president of the advocacy group Tennesseans for Economic Growth, before he became governor, Lee led advocacy efforts that resulted in legislation capping pain and suffering payouts in personal injury cases to $750,000. The law was signed into law by former Gov. Bill Haslam in 2011.
The bill now heads to Lee’s desk for his signature.