Limits on lawsuits for virus negligence can’t be allowed

Originally published in the St. Louis Post-Dispatch on June 15, 2020

As millions die, should the powerful become more powerful? No.

During a deadly, unprecedented, worldwide health and economic crisis, changes must be made, sometimes suddenly.

But here’s one change that should be, excuse the awful pun, avoided like the plague: the quick and quiet taking of citizens’ constitutional rights, especially the right to file a lawsuit to stop and deter recklessness by powerful individuals and institutions.

The Missouri Chamber of Commerce, among others, wants to forbid injured, sick or suffering individuals from suing businesses for COVID-19-related issues. They claim that hordes of workers and customers will, at some point down the line, rush to court trying to hold employers accountable for irresponsible decisions they’ve made before, during and after the pandemic.

My question: Why shouldn’t decision-makers be held accountable? Isn’t that how the time-tested U.S. justice system works? You act irresponsibly. You put others in harm’s way. You get hauled into court.

And, by doing so, irresponsible decisions are exposed, punished and deterred.

The chance to seek justice if you’ve been hurt is one of the bedrocks of our democracy.

Say that the CEO of a nursing home chain deliberately and selfishly focuses on short-term profit. He ignores the advice of his medical, safety and insurance advisers. He refuses to stock up on emergency supplies so staff and residents will be safe if or when something unforeseen happens. Then COVID-19 hits.

A worker says, “Boss, I’ve got a fever and feel sick and my sister/spouse/best friend has COVID-19.” He insists, “You’ve got to come in to work anyway.” She shows up, spreads the virus, and innocent people die.

Shouldn’t that CEO have to explain to a jury why he risked innocent lives this way?

Say that a manufacturer, seeing dollar signs, starts churning out much-needed facial masks. He knows that “you gotta strike while the iron is hot.” He knows that safety laws are often outdated and regulators are often overwhelmed. So he skips a few precautionary steps, his products don’t perform well, customers are misled and more get sick (while he enjoys booming profits).

Shouldn’t these ill and ripped-off consumers have some recourse?

Many businesses aren’t seeking small, narrowly targeted exemptions. In a recent Vanity Fair article, a banker called for “broad legal indemnification for employers against claims related to the virus” so that employees can’t sue if their workplace exposes them to illness, so that customers can’t sue if they’ve been deceived and gotten sick and so that relatives can’t sue if grandma died in a negligently run nursing home.

This is not just wrong. It’s backward. And it’s frightening.

It’s wrong because most Americans, according to surveys, believe that the powerful are already too powerful.

It’s backward because in a crisis, those at the bottom, at the margins and without power need and deserve more protection, not less.

And it’s frightening because if corporate CEOs can exploit widespread death, illness, layoffs and closings to sneak through self-serving measures like this, who knows where or when they’ll stop using their clout to line their pockets and further tilt an already way-out-of-balance system.

Over the past few decades, it’s become much harder for most Americans to gain a voice in politics. Corporate campaign contributions are soaring and becoming easier to conceal. Well-heeled lobbyists are proliferating. And almost imperceptibly, simply registering and voting is being made tougher for many.

It’s also become harder for Americans to gain a voice in their workplaces, as corporate interests force employees to sign non-compete and non-disclosure requirements while gutting labor unions and other on-the-job protections.

And it’s become harder for Americans to gain a voice in the justice system, as powerful interests restrict access to the courts, cry “lawsuit abuse,” push tort reform and arbitrarily limit the damages that can be paid to people who have suffered deeply due to corporate malfeasance.

The answer to all this? It can’t be more of the same. Especially not while millions are dying and getting sick and losing their jobs and fearing for the future.

Let’s put the brakes on here. Let’s focus on keeping people alive and safe. Let’s carefully reopen the economy. Let’s not make radical changes to our justice system.

And down the road, let’s let juries do what they’ve always done — sort truth from fiction, help the suffering, and discourage irresponsible, self-serving behavior by the powerful.

David G. Clohessy of St. Louis is the former director of SNAP, the Survivors Network of those Abused by Priests.