Executive Session

Floor Speech

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Mr. CORNYN. Madam President, as our Nation's war against the coronavirus has waged on, the Senate has taken decisive action to provide the resources we need to win the fight. We sent critical equipment to our frontline healthcare workers, and we have expanded testing resources nationwide. We provided loans to small businesses in order to protect jobs, and we sent direct financial assistance to the Americans who are struggling the hardest to make ends meet. These four bills--now law--passed by Congress have addressed both the public health crisis at the heart of the pandemic and the ensuing economic fallout.

Now, with the States beginning to gradually reopen their economies, we are staring down the barrel of a second epidemic, one generated by opportunistic lawsuits, crushing legal fees, and drawn-out court battles.

According to a database compiled by law firm Hunton Andrews Kurth, more than 950 such lawsuits have already been filed in the United States. We have seen suits against healthcare workers, nursing homes, colleges, governments, retailers--you name it. As our economy begins to reopen, unfortunately, so will the legal floodgates. The litigation epidemic is shaping up to be a big one.

Now, don't get me wrong, lawyers aren't all bad. I confess to being one myself. And there will no doubt be some meritorious claims. But many suits potentially serve as the cash cow--a chance to shake down a business for a nuisance settlement due to the cost alone of defending a lawsuit, even if you win.

With a pandemic that has affected more than 1 million Americans, you better believe there are some preparing for a gold rush. You can hear the TV commercials now asking if you or a loved one was impacted by the coronavirus, encouraging you to call a 1-800 number to see if you could be entitled to some money.

Imagine you are a nurse who is being sued by the family of a patient who tragically passed away at your hospital. Even though you acted in good faith and you took every precaution to save the life of the patient, you could get pulled into a nightmarish legal fight over a case that ends up having no merit in the first place.

Let's say you are a small business owner who closed your doors at the start of the pandemic, but then you applied for the loans, and you have done everything in your power to stay afloat until you could reopen. When that time comes, you take every precaution. Your employees wear masks, you reduce the number of customers so as to provide for social distancing, you regularly clean your store, and you have hand sanitizer available for all employees and customers. But then somebody says that they contracted the virus in your store and that they are going to sue you. Well, I have no doubt that, unless we provide for some limitations, there will be businesses that will say: Why bother? Why take on the risk? It is just not worth it

We know small businesses provide the lion's share of the jobs in our economy, and they can get roped into spending all their savings--what is left--to defend or settle a nuisance lawsuit. And the fear of these consequences could worsen the toll this crisis has already taken on our economy.

We simply cannot allow a flood of frivolous lawsuits to harm our incredible healthcare workers or stunt our economic recovery. As we speak, I am working with colleagues on legislation to address the anticipated lawsuit bonanza.

Let me be clear. Not all lawsuits are created equal. Without a doubt, there will be legitimate claims as a result of reckless wrongdoing in the wake of this pandemic. Those are the types of cases we want to make sure are heard.

Last week, the Utah Daily Herald reported that one business required staff who tested positive for the COVID-19 to report to work anyway. Almost half of the business's employees tested positive. You don't have to be Perry Mason or Matlock--I realize I am dating myself here--to see that this is an egregious violation of Federal guidelines. There is no desire to impede the effort to hold bad actors accountable, period. That is my guiding principle. The problem is with the expected onslaught of frivolous claims, which will do nothing more than harm the very people already hurt by this virus.

Just because a lawsuit is baseless doesn't mean it will be quick, easy, or cheap to resolve, and we can't put our healthcare workers in a situation where, after battling this virus for months on end, they then have to battle a false claim in court.

Future legislation should include liability protections for our frontline workers and small businesses that are complying with the very government regulations designed to protect against the spread of the virus.

More than a dozen Governors have already provided liability protections to healthcare workers, but we can't just depend on the States to uphold these protections. We can't wait for the dam to break. Congress must act to provide the shield for the healthcare workers who have done everything in their power to save lives during this unprecedented crisis.

Again, to state the obvious, this would not interfere with liability for intentional or grossly negligent conduct. As I said before, no one wants to put a stop to meritorious lawsuits. We want to prevent baseless claims from tying up our courts, destroying jobs, and holding our economy hostage.

There are several ways to accomplish this, but we need to focus on a solution that provides clarity for our businesses and prevents gamesmanship in the courts.

Michael Krauss is a law professor at George Mason University who specializes in tort law. He has pointed out that employees can get workers' compensation benefits if they become sick or disabled on the job. In other words, employees will be covered by existing workers' compensation laws. We are talking about third-party claims, not employees. Defending lawsuits, no matter how far-fetched, is expensive, and litigation costs alone can make the difference between the destruction and survival of a business.

Professor Krauss said that in his opinion, the ideal statute would say: ``If you do the following, you may not be sued.'' He said that could include a list of requirements, like wearing masks. There could be specific regulations for restaurants, meatpackers, or other industries.

Any liability limitations will only protect the individuals and companies that comply with Federal guidelines and seek to keep their workers and the public safe.

My colleagues and I have been in discussions about the best way to do this, and we are actively developing a proposal that I hope will gain bipartisan support. There are fair and reasonable ways to deal with this. We have seen this before. This is not a novel concept. Whether it is the response to the Y2K paranoia around the turn of the century or the attacks of 9/11, there are many more examples where Congress has, on a bipartisan basis, responded to a national emergency and provided these sorts of commonsense legal protections.

As we continue to work to support the American people during the crisis we are facing today, we can't ignore the onslaught of lawsuits that could soon bankrupt small businesses and strangle our recovering economy.

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