A ranking Senate Republican is pushing legislation he says will block almost all lawsuits against businesses or health care providers as they relate to COVID-19.
Senate Majority Leader Matt Huffman, R-Lima, pitched Senate Bill 308 to the Senate Judiciary Committee on Wednesday. He said the bill would offer a shield for businesses against frivolous lawsuits brought by trial lawyers seeking to capitalize on a pandemic.
During the hearing, Sen. Peggy Lehner, R-Kettering, asked Huffman what happens if a business reopens and flouts CDC guidance entirely, despite the presence of COVID-19 in the community. If the business, she asked, doesn’t limit patrons inside, enforce social distancing, require masks from employees and guests, and offer hand sanitizer and soap, would the bill protect them from lawsuits?
“The current version of this bill does make them immune,” Huffman said.
The legal implications of the pandemic are immense. Workers and customers could sue businesses. Businesses could sue insurers. Residents could sue nursing homes. Inmates could sue prisons.
Consideration of Huffman’s bill comes as Gov. Mike DeWine announced Thursday plans to allow restaurants, salons, and barbershops to reopen in mid-May.
The bill says businesses can’t be held liable for illnesses or death arising from what they did or did not do during a declared disaster or in the 180 days following the end of such period.
It does not explicitly mention COVID-19, the respiratory disease, or the new coronavirus that causes it. It also does not cite public health guidance offered to slow the virus’ spread.
It only says the legal immunity is not available if a plaintiff can establish by “clear and convincing evidence” that the business’ actions amounted to “intentional, willful, or wanton misconduct.”
The proposal offers similar protections to health care workers.
“There is a potential of overwhelming litigation due to this COVID-19,” Huffman said.
Peter Pattakos, a trial lawyer from the Cleveland area, said Ohioans should have the right to take to the courts when someone’s “wrongful or negligent” conduct causes them injury.
“In deciding whether conduct is reasonable, wrong, or negligent in these cases, courts are already required to consider the emergent nature of the pandemic and account for what is unknown about it,” he said in an email. “This bill is a solution in search of a problem and will accomplish nothing as much as make insurance executives richer at the expense of ordinary Ohioans. Unfortunately, that appears to be the whole point here.”
However, Kevin Shimp, a lobbyist with the Ohio Chamber of Commerce, said businesses like grocery stores braved the stay-at-home order to keep people fed. Now, they need this legal cover from inevitable lawsuits.
The Chamber is backing the bill, he said, to protect businesses from lawsuits, though he’s not aware of any that have been filed in Ohio.
“All businesses need the legal protections from Senate Bill 308, the bill will help Ohio’s economy recover faster because it eliminates a major disincentive for businesses to open their doors to the public or substantially limit their operations,” he said.
He said the bill doesn’t protect businesses that act willfully in disregard to basic preventative measures against the coronavirus but punted on who sets that standard. It will be left with the courts, he said, to determine what constitutes willful disregard.
The Ohio Association for Justice, a group that represents plaintiffs’ lawyers, declined interview requests, though expressed opposition to the proposal in a written statement.
“The OAJ is opposed to bills that limit 7th Amendment rights. We are reviewing SB 308, and we look forward to reaching a common-sense solution that will restart the economy, protect the rights of Ohioans, and keep us safe,” said OAJ president Ellen McCarthy.
On Friday, the Buckeye Institute, a conservative think tank, issued a policy memo calling for rules to protect businesses from unnecessary litigation.
Unlike the Senate proposal, however, the organization recommends tying the legal standard to either CDC or state guidelines. In other words, protecting businesses that follow the guidelines, not those who disregard them.
This story was updated Friday morning with comment from the Buckeye Institute.
Jake Zuckerman is a statehouse reporter. He spent three years chronicling the West Virginia Legislature for The Charleston Gazette-Mail after covering cops and courts for The Northern Virginia Daily. Read more Ohio Capital Journal stories here.