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Senate of Pennsylvania
Session of 2019 - 2020 Regular Session


Posted: June 30, 2020 12:15 PM
From: Senator Lisa Baker and Sen. Patrick J. Stefano, Sen. Michele Brooks, Sen. Kristin Phillips-Hill
To: All Senate members
Subject: Pandemic Liability Protections
Please join us in cosponsoring legislation providing for limited COVID-19-related liability to manufacturers and others who provide Personal Protective Equipment (PPE), certain medical services, and who have opened up their businesses and followed CDC guidelines.

Due to the consequential novel aspects of the coronavirus pandemic, Pennsylvania has been forced into a serious trial-and-error process for containing the spread of the contagion, establishing protocols of treatment by medical practitioners, and setting safety standards of daily life for the public.  Manufacturers have been forced to increase production, to retool, and others have donated materials or sold them at cost to help battle the pandemic.

With decisive action required before facts are established and research conducted, this process is outside normal assumptions about precautions, risks, responsibility, and liability. 

The state-ordered shutdown has inflicted substantial economic losses on institutions, enterprises, and families.  No matter how someone perceives the scope of these restrictions or the proper exercise of authority, the overall economic impact is the same.  We are now trying to figure out how to safely reopen in the face of concerns over a fresh rise in cases, even before we get to the projected second wave.

This presents another set of difficulties.  No matter how reasonable and effective recommended safety standards are, they will be in various ways insufficient, and in every way not entirely enforceable.  Compound this with emphatic political assertions conflicting with health care advisories, and it is impossible to ensure good judgment, willing compliance, and fastidious sanitation by everyone.

While a lot has been learned, the current state of testing and understanding makes it unlikely to determine how and where an individual contracts the disease. 

It is hard to imagine an environment more target rich for litigation.  It is also hard to have circumstances less suited to the customary cause-and-effect nature of litigation.  Early indications are that lawsuits will come from every direction, those who charge that not enough precautions were adopted and those who charge that even small restrictions trampled fundamental rights.

It may be that public entities have protection under sovereign immunity laws.  That means private entities already straining under their economic losses and attempting to find a way forward with a diminished customer base will be the targets of a new round of litigation, where the scope of claims, judgments, and insurance coverage are unknowns.  So how do we address problems at care facilities where a prevalent cause is what state government did or failed to do?  Or a problem at a business that was open as essential for which the guidelines for operation were slow in materializing?

Meanwhile, our courts are trying to figure out how to safely conduct jury trials.  Both criminal and civil cases have been building a backlog.  Resolving this is going to be slow going, again with the possibility of a second wave of coronavirus compounding the problem.  They will be ill-equipped to deal with a wave of cases that may not involve clear concerns of misconduct.

Finally, it is unclear how we can make reasonable judgments about fairness and equity during a monumental crisis that is inherently arbitrary and capricious in its effects and outcomes.  After all, we are all in this together.

The collective belief here and elsewhere is that it makes sense to protect businesses who have been trying to protect the public. This legislation would protect against litigation based on claims of ordinary and gross negligence for businesses that donated supplies or provided them at cost while protecting against claims of negligence for all others.  For higher levels of alleged misconduct, such as intentional wrongdoing, the avenue to potential legal remedy remains open.

To us, this is not about what other states have done.  It is very much about what we must do in finding a necessary and responsible balance for public health and economic in Pennsylvania.

Introduced as SB1239