Ultimate immunity

Judd Legum Jul 29   

With the pandemic raging and unemployment well above 10%, Congress is rushing to pass another relief bill. Extended unemployment assistance will expire in days, millions are at imminent risk of eviction, and there are still major backlogs in COVID-19 testing.

But the top priority for the White House and Senate Republicans is not economic relief or improving testing to slow the spread of the virus. The top priority is to grant businesses near-total immunity if they expose their workers or customers to COVID-19. Senate Majority Leader Mitch McConnell has repeatedly said the Senate will not vote on any bill that doesn't include a liability shield for businesses.

Successfully suing a business for exposing someone to COVID-19 is already extremely difficult. Part of the reason is that it is difficult to successfully sue anyone for causing an injury. This kind of suit is known as "tort action." In the United States, an "injury victim generally bears the burden of proof on every element of a tort action, so that to recover in a negligence suit, for example, the plaintiff must convince a factfinder that it is more likely than not that a defendant was careless, this carelessness empirically caused injury and played a significant causal role, and that injury inflicted specific losses."

Avoiding liability does not take "superhuman" efforts. Rather, defendants win if they show they have taken "reasonable, ordinarily prudent, duly considerate measures to limit the risks of injury they impose on others."

Even if an injury victim proves the defendant was negligent, "the plaintiff’s case can be countered by a defendant who can successfully persuade the factfinder that the plaintiff’s own conduct was, more likely than not, careless and played a significant causal role in bringing about the losses alleged."

The nature of COVID-19 makes these standards particularly difficult for plaintiffs to meet. It is difficult to prove where someone contracted COVID-19, since it is highly contagious and can spread in a variety of settings. Even if someone was able to establish the likelihood that they contracted the virus in a particular establishment, they would have to prove that their own carelessness (infrequent handwashing, failure to social distance, not wearing a mask) was not a contributing factor.

In other words, under the status quo, a COVID-19-related lawsuit is only likely to be successful in the most egregious cases.

This is why, despite dire warnings, there has not been a flood of consumer lawsuits related to contracting COVID-19 in a public setting. According to a tracker maintained by Hunton Andrews Kurth, just 16 lawsuits have been filed nationally by consumers related to contracting COVID-19 in a public place.
The Republican proposal

The proposal advanced by Senate Republicans and the White House, however, would make any lawsuit — even against the most irresponsible business — virtually impossible.

The Republican legislation shields business from COVID-19 liability for "negligence." Instead, it only permits liability for "gross negligence," which is defined as "a conscious, voluntary act or omission in reckless disregard" of someone else's safety. In other words, it's not enough for a business to act recklessly and put someone's safety in danger. Plaintiffs would have to prove the business engaged in the conduct on purpose, knowing it would put people in danger.

Further, plaintiffs are required to establish "gross negligence" by "clear and convincing evidence," a much higher standard than the standard for negligence, which is "more likely than not." Even if plaintiffs meet that higher standard, defendants can also prevail if they show they made "reasonable efforts" to comply with government guidelines. That means a "grossly negligent defendant can possibly escape liability if it can establish it simply tried, but failed, to comply with coronavirus safety measures." Another complicating factor is that guidelines from the CDC for businesses are not mandatory so one can be in compliance with the guidelines without doing anything at all.

Plaintiffs would also be required "to provide a list of the places they went and people they met in the 14-day period prior to experiencing symptoms, as well as any persons who visited their residence during that period." This requirement is to assist defendants in attributing blame to the plaintiff.

The proposal also mandates that all COVID-19 lawsuits be filed in federal court, a venue considered much more favorable to defendants than state courts. No personal injury or medical malpractice suits related to COVID-19 would be permitted in state courts.

Should a plaintiff somehow be able to prevail, the bill imposes significant limitations on damages. All of these limitations would remain in place for at least five years and would apply retroactively to infections that occurred before its passage. The bill also allows "prevailing defendants to seek compensatory and punitive damages if a claim outlined in a demand letter turns out to be meritless."

So what's the impact of the Republican proposal? Under the status quo, COVID-19 litigation is unlikely, but something that businesses still need to consider as a possibility. Under the Republican proposal, businesses will know they are fully protected from liability in almost any conceivable scenario. This will incent many businesses to cut corners on safety protocols to reduce costs.
What happened in Utah

On May 4, Utah enacted "new legislation that grants civil immunity to persons (including private employers, businesses, and government) related to exposure to COVID-19." The only exception, similar to the new proposal by national Republicans, was for "willful misconduct."

The following day, local media reported that "nearly half of the employees" of one business "tested positive for COVID-19 after the business instructed employees to not follow quarantine guidelines and required staff who had tested positive to report to work." The business has not been identified.

The infections likely occurred while the legislation was being considered. It's not clear whether the imminent legal protections influenced the business' behavior. But it is an example of what can happen when businesses believe they can act with impunity.

There are already about a dozen states with COVID-19 immunity laws. Many of those states, including Alabama, North Carolina, and Arkansas, are experiencing widespread outbreaks.

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Losing everything

I recently had the devastating loss of my niece whom I loved and had grown to depend upon. She drowned in a river on a weekend outing. And that was compounded by prejudgment from both my family and my church. So, I lost them, too. Though my niece lived with me for the last six months of her life, I was excluded from her memorial service. 

I have lived with HIV for over 30 years and it seems there is always some new complication because frankly we still don't know that much about it. I credit my longevity to my own dogged determination to understand what is happening to me and why. No one else. Just me. Because no one has ever given a damn about me. 

Since my niece's passing I began to experience hallucinations. Seeing and hearing, even conversing with people who simply aren't there. How do you tell people that you are afraid you're losing your mind? How can you admit it to yourself? Again, I had to figure it out because no one else would. 

It turns out that a chemical imbalance can occur called lactoid acidosis that is not checked for in standard lab work. It has to be asked for specifically. This condition has so many symptoms that can mimic other conditions that it is really difficult to recognize that they aren't each a symptom of other conditions but a constellation of symptoms pointing to a single root cause and condition - one that can be treated easily. 

This condition is also aggravated and compounded by extreme stress, trauma and PTSD. It can also induce hallucinations. Had I not lost so much in a matter of weeks I might still be fluttering about attempting to treat symptoms and not the cause. 

This doesn't make my losses any easier but if anything good came from it is that I now know how to treat myself medically. Psychologically and spiritually are a different matter. My faith is shaken and I can never worship with people who were so unkind, incompassionate, and unsupportive in my time of need as I have been for each and every one of them. 

I question why I even bother trying to figure out what doctors can't or won't. Why do I do this knowing that it might extend my time in this miserable and lonely hell on earth. I'm too tired and broken inside to attempt answering these questions. I'll close now while I can still see this text through my tears.

UPDATE:

The lab work came back normal. So, my theory of chemical imbalance isn't the problem. The only explanation left is stress induced psychosis. And because of the pandemic there is a waiting list for counseling. On the upside, my phantom friends haven't come around for several days.

Police execute search warrant at home of Missouri couple who pointed guns at protesters

These assholes are always pushing the limits of Missouri's "stand your ground" law and often breaking those limits. They should absolutely be prosecuted to the fullest extent possible. Prosecutors should stack charges and accept no plea deal.

I also happen to know that St. Louis has a "nuisance property" law in which they can, and do, evict nuisance neighbors from their own properties and hold them vacant for a year. Prosecutors should consider this option as well.

Meanwhile, the St. Louis Post-Dispatch reported Saturday that public records and interviews show the McCloskeys are almost always in conflict with others, typically over control of private property.

Read the article at KOCO News.

Forbes: Walt Disney World ‘Welcome Home’ Video Gets Torn Apart On Twitter

Twitter eviscerates Disney World and Florida with usual art of simply telling the truth.

Regarding a promotional video released by the "amusement park"...

The contrast between the video’s manic, corporate enthusiasm and the deadly coronavirus lurking in the background is beyond absurd; as many Twitter users pointed out, the video would make a great trailer for a horror film. 

Read the article here:

Forbes: Walt Disney World ‘Welcome Home’ Video Gets Torn Apart On Twitter.