Florida’s Rush To Pass COVID-19 Liability Shield May Backfire

By Nathan Hale

Law360 (March 2, 2021, 5:57 PM EST) — Florida seems poised to quickly pass a COVID-19 liability shield as its legislative session starts this week, despite critics’ concerns the current proposals go too far or might even produce unintended consequences that could end up hurting the businesses and health care providers they’re intended to protect.

The Florida Legislature has been widely expected to consider enacting some form of legal immunity, with a wave of personal injury and wrongful death lawsuits possible from a large elderly population that has been especially hard hit by the coronavirus pandemic and the state’s economy shaken by disruptions to the travel and hospitality industries.

“The relief couldn’t come soon enough,” William Large, executive director of the Florida Justice Reform Institute, a tort reform advocacy group backed by the Florida Chamber of Commerce, told Law360. “We have lots of notices of intent being filed against nursing homes and assisted living facilities and numerous lawsuits in other contexts. Florida needs to get back to work without the fear of lawsuits, so hopefully these measures will pass the Legislature soon.”

But the rush and lack of negotiation in the Republican-controlled Legislature, which has resulted in the House advancing its business shield bill to the floor before the opening gavel and in substantially its original form, has stood out to some foes.

“Bills like this normally don’t move through the committees with the rapid pace that these have,” Steve Cain, co-chair of the COVID-19 liability committee for the Florida Justice Association, the state’s plaintiffs’ bar, said in an interview. “They’re taking away all incentives for businesses to do their best.”

The FJA and other opponents, including the AFL-CIO and AARP, have accused lawmakers of putting big business interests ahead of regular Floridians’ needs and warn the current proposals could shut the courthouse doors to even the worthiest cases. Attorneys have also suggested the rapid process has resulted in a half-baked product that may inadvertently ensnare businesses and health care providers in costly litigation if plaintiffs manage to check off the necessary boxes and could also trip up businesses’ disputes with their insurers.

But a number of legal experts also said that despite the numerous cautionary statements, it is impossible to know exactly how lawsuits will play out under the filed bills, and the unique circumstances caused by the coronavirus pandemic along with calls for help from business groups have given the Legislature a strong mandate to act.

“Hindsight is always 20/20, armchair quarterbacking on Monday is always there, but in this situation, are you going to hold folks to the same liability as you would just in the normal course of living our lives?” Richard Pinsky, public policy manager at Akerman LLP, said. “I think that is what this bill is attempting to do — point out that this is so extraordinary, we’ve got to go back and make a different standard for the COVID-19 pandemic.”

Complicating the issue is the difficulty in discerning how many of these lawsuits there are. Attorneys on both sides have said that even without liability shields, claimants face a steep challenge from a practical and scientific standpoint to pinpoint where an infection happened, and the FJA contends only a handful of such suits have been filed. But the FJRI’s Large said his group’s sifting through cases had turned up 53 such complaints as of late January and nursing home interests had reported dozens more cases or notices of intent to sue.

Either way, the Sunshine State is not alone in pursuing liability protections for health care providers, businesses and other institutions that stayed open or reopened during the pandemic.

“Thirty-three states, plus the District of Columbia, have enacted protections from COVID liability claims either through legislation or executive orders,” Hayden Dempsey, chair of Greenberg Traurig’s government law and policy practice, noted. “The Florida House and Senate, with the support of the governor, appear committed to passing legislation providing some measure of protection for Florida businesses and health care providers against potential COVID-related claims.”

Both chambers have split their efforts across separate bills that address health care providers apart from measures to cover businesses, schools, religious institutions and others. The health care shield bills, S.B. 74 and H.B. 7005, have just started to enter the committee process, and experts said they do not yet line up, so they may take longer to work out. But the House already advanced its business bill, H.B. 7, to the floor during committee weeks with minimal changes, and the nearly identical Senate version, S.B. 72, advanced through the Commerce and Tourism Committee still intact on Tuesday.

“I think the chambers have decided these bills are clearly a big priority, which is why they’re moving so fast before we even have the first day of session. So I’m sure the bills are going to pass, and it looks like we have a more clear picture of what at least the nonhealth care bills are going to look like,” Beth Vecchioli, a senior policy adviser with Holland & Knight LLP, said.

Sponsors of H.B. 7 and S.B. 72 have said they aim to raise the bar for personal injury and wrongful death claims stemming from COVID-19 and provide immunity for defendants who made good faith prevention efforts.

They set out to do this by requiring these complaints to be pled with particularity, including sufficient facts to satisfy the claims, and accompanied by a sworn affidavit from an active physician attesting that “within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant’s acts or omissions.”

If a plaintiff clears those hurdles, then the court is required to determine whether the defendant made a good faith effort to substantially comply with government-issued health standards or guidelines.

And even if the court finds such efforts were lacking, the plaintiff still must show clear and convincing evidence of at least gross negligence, according to the bills.

The bills also impose a one-year statute of limitations from either the date of accrual of the action or the law’s effective date, although they do no apply retroactively to suits that have already been filed.

The various hurdles imposed by the bills have prompted concerns from various groups and Democratic lawmakers that they create an effective bar on the courthouse even for valid claims.

“I think that it’s an obstacle that’s quite frankly impossible to overcome,” said the FJA’s Cain, who predicted few, if any, physicians will be willing to sign off without having a fuller picture of what happened. “They won’t know either way because it will be impossible to have the evidence that they’ll need to rely on to have an opinion.”

Cain said the heightened standards of proof are akin to what is needed for a manslaughter claim in the criminal arena, and the bills take the unprecedented step of putting judges in the jurors’ seats by requiring them to weigh the evidence at the motion to dismiss stage.

During committee meetings, several speakers also accused the Legislature of having its priorities out of order, saying they should have taken up efforts to fix the state’s broken workers’ compensation system or provide direct relief for workers and small businesses.

“Workers who lost jobs weren’t getting checks, they were losing homes and not able to feed families,” Cain said. “That to me would be a top priority if you were concerned about workers and the citizens of Florida.”

Despite these concerns, only three amendments — all offered by H.B. 7 sponsor Rep. Lawrence McClure, R-Dover — have been adopted. They clarified which entities are covered and established a broad definition of health guideline compliance but did not address major critiques. McClure’s office did not respond to a request for comment on his outlook for the bill and any future changes.

Meanwhile, more than a dozen amendments offered by Democratic committee members have been shot down, and tensions flared during a Feb. 16 meeting when House Judiciary Chairman Daniel Perez, R-Miami, refused to consider several amendments from Democrats, saying they were filed after deadlines imposed as part of special COVID-19 protocols.

On the flip side of the debate, Angela de Cespedes, a Miami-based litigator with Saul Ewing Arnstein & Lehr whose practice includes the defense of a wide range of businesses in personal injury and wrongful death cases, suggested the physician affidavit requirement could actually prove to be a trap for businesses.

She disagreed with Cain that plaintiffs’ attorneys would have trouble finding physicians to sign off on the required affidavits. And once a plaintiff has an affidavit in hand, she predicted they will argue to the courts that their cases should advance because they complied with the statutory requirements.

“I think nine out of 10 times that’s going to work,” de Cespedes said.

At that point, a defendant easily could have already racked up $10,000 to $20,000 in attorney fees, de Cespedes said, and that amount could balloon into six figures as the court moves on to determining if the business made a good faith effort to comply with government guidelines. It appears that will require an evidentiary hearing and at least limited discovery, a process that could add 30 to 90 days, notwithstanding the courts’ massive backlog from the pandemic shutdowns.

“If the plaintiff survives any of these, essentially they’re holding the business hostage,” de Cespedes said. “At some point the business is going to have to make a business decision whether to try to settle.”

De Cespedes said she thinks businesses should be protected but suggested the Legislature should consider damages caps and model the shield bills after Florida’s requirements for medical malpractice cases, which require more robust presuit investigation by plaintiffs.

FJA’s Cain also said there are concerns that the language in the business shield bills may be broad enough that it covers not just personal injuries and the tort arena but also could encapsulate businesses’ suits over business interruption claims against their insurers.

Holland & Knight’s Vecchioli and Akerman’s Pinsky, however, said the handwringing over the current bills is somewhat premature and overblown.

“It’s unchartered water, and we are all trying to prognosticate and guess what is going to happen,” Pinsky said. “I am sure that after this legislation passes, there are going to be folks that try to game the system. So the question becomes how do you put in checks and balances but at the same time allow plaintiffs access to the courts?”

Pinsky and Vecchioli also defended the Legislature’s decision to take up shield bills first, noting that certain issues are tied in with federal actions and the state budget and may be addressed later in the two-month session.

“It’s not as if the Legislature doesn’t care about workers or employees,” Vecchioli said. “You can’t have workers and employees unless you have employers. And our economy needs to be churning so that everyone can make a good living and thrive in this environment, and this is just one step towards that.”

–Editing by Bruce Goldman.

https://www.law360.com/articles/1360011/florida-s-rush-to-pass-covid-19-liability-shield-may-backfire