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The draft liability bill that's apparently holding up state/local aid ( https://www.scribd.com/document/488253549/Daily-Poster-Draft-Senate-Liability-Legislation) is not a good bill. But the practical impact would be quite limited, whereas the practical impact of another $160b for state, local & tribal governments would be quite significant 1/ https://twitter.com/davidsirota/status/1338738373633064961
The bill's main section sets a "gross negligence" standard for Covid-19-related personal injury actions. Under current law, one generally needs to show only "negligence" (failure to exercise reasonable care), not "gross negligence" (here: "reckless disregard of a legal duty") 2/
None of this has much to do w/employees suing for workplace Covid-19 exposures. Employee-vs-employer suits for on-the-job injuries are generally barred by state workers' comp statutes, & in the few states where they're allowed, it's usually a gross negligence standard already 3/
Non-employee suits (eg, customer suing restaurant where s/he contracted Covid-19) *are* affected--negatively. But these suits are rare (the @HuntonAK tracker counts 23 so far across the country) & they're likely to face very high hurdles already 4/
The biggest challenge in winning one of these suits will be proving causation. Covid-19 is endemic; the plaintiff needs to show that s/he got it at the restaurant & not in any # of other locations. After that, s/he needs to overcome the assumption-of-risk doctrine 5/
Will a handful of suits fail b/c of the replacement of "negligence" w/"gross negligence"? Maybe. But we're talking about dozens (not 100s) of lawsuits vs $160b of state/local/tribal aid. These are very different magnitudes 6/
As for "shielding health care executives from wrongful death lawsuits" (per @davidsirota's summary): Hunton counts 108 wrongful death suits filed so far in the healthcare context. Most of these are going to be vs doctors/hospitals (not executives in their personal capacity) 7/
Where they are against health care executives in their personal capacity, the execs are almost surely going to be indemnified by their employers &/or covered by insurance. Best guess is that this bill would affect personal payouts by literally zero health care execs 8/
The bill also allows defendants to remove Covid-19 claims from state court to federal court. That seems unnecessary. But claims in federal court will be governed by the same substantive state-law standards, w/similar jury pools. 9/
The bill allows DOJ to commence civil actions against persons (eg, law firms) engaged in a pattern/practice of bringing meritless Covid-19 claims. Also unnecessary. But it's hard to believe that a Biden DOJ is going to bring abusive actions against personal injury lawyers 10/
Finally, the bill provides a new defense under OSHA & several other federal statutes for employers who were substantially following applicable federal gov't standards & guidance. Unlikely this is going to shield a large # of employers from liability 11/
Perhaps it's possible there are isolated cases in which CDC guidelines conflicted w/OSHA standards (I don't know of any). Hard to believe those would be enforcement priorities for the DOL or state agencies in any event. 12/
If this were standalone legislation, it would not be a good bill. But it will change the outcome in probably a few dozen lawsuits. Whereas $160b for state, local & tribal governments is enough to pay about 2.7 million government workers' salaries for a year! 13/
Tl;dr: In Manchin-Romney deal on state/local aid & liability, Manchin gave GOP a largely symbolic win on liability in exchange for saving potentially millions of public school teachers, social workers & other gov't employees from furloughs/layoffs/pay cuts. Not a bad deal! 14/14
