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Wisconsin Spotlight | Jan. 6, 2021

MADISON — Things could get a lot worse for Wisconsin businesses battered by the pandemic if the state doesn’t adopt lawsuit protections, proponents of the COVID 19 liability shield assert.

A measure creating liability exemptions for businesses, schools and other entities is included in the Assembly’s COVID relief package. The provision grants immunity from civil claims alleging death or injury as the result of exposure to COVID-19. Such protections would not be granted for entities that wantonly put employees and the public at risk.

“This bill will protect schools and businesses under reasonable liability measures, allowing them the opportunity to stay open while following safety guidelines,” Assembly Speaker Robin Vos (R-Rochester), author of the COVID relief package, said during a public hearing this week before the Assembly Health Committee.

Opponents of the liability shields, unions and trial lawyers in particular, insist the measures will leave workers unprotected from unsafe workplaces. They say predictions of a flood of frivolous lawsuits to come are unwarranted because such litigation is difficult to win.

But business advocates say the flood has already struck.

‘Waves of litigation’

“Businesses should be very concerned about these cases,” labor and employment attorney Tom Gies of Cowell & Moring, a law firm that defends employers, told Reuters.

Cory Fish, general counsel for Wisconsin Manufacturers & Commerce, the state’s largest business advocate, noted the “waves of litigation” across the country, beginning soon after the virus struck in March. Early on, cruise lines were hit with lawsuits seeking damages for COVID-19 exposure. And then the manufacturers of hand sanitizers were targeted.

The latest threat comes from the so-called “take home” lawsuits, lawsuits from anyone in contact with a COVID-19-positive employee — family, friends, strangers.

Legal experts warn that COVID exposure lawsuits could cost U.S. businesses tens of billions of dollars in the coming year.

“Between 7% and 9% of the roughly 200,000 U.S. COVID-19 deaths so far are believed to stem from take-home infections and the lawsuits could cost businesses up to $21 billion if the number of Americans fatalities reaches 300,000, according to Praedicat, a firm that evaluates risks for insurers,” Reuters reports. U.S. deaths had topped 357,000 as of Wednesday.

It’s big business. In the first five months of 2020, law firms had spent some $67 million on “mass tort” television ads targeting potential plaintiffs with COVID-19 complaints, according to Reuters. 

Lawsuit damages

But such “frivolous” lawsuits never make it to a jury, opponents of the liability shield laws assert. Left out of the assertions, Fish said, is the fact that the lawsuits don’t reach a verdict because so many are settled out of court.

“They’re settled because of the significant costs of litigation,” he said in testimony before the Assembly committee. “And these cases aren’t litigated in the courtrooms. They’re litigated in the press and litigated elsewhere. And so an entity may very well be going to settle for some sum of money even if they know they did nothing wrong because they don’t want the reputational damage, they don’t want to pay the legal fees, they don’t want to deal with the psychological and emotional stress that a lawsuit brings.”

As Vos notes, several states have passed COVID liability shield bills, and many others have introduced legislation.

As of early December, Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming had signed of on bills or executive orders.

“These same measures passed in bipartisan states, voted on by Republicans and Democrats and signed by” Democrat governors. “I believe we can achieve the same level of protection for small businesses, nonprofits and those who worry” about COVID-19 lawsuits.

Read the full bill here. 

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