[Congressional Record Volume 166, Number 88 (Monday, May 11, 2020)]
[Senate]
[Pages S2333-S2334]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Coronavirus

  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.

[[Page S2334]]

  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. Congress must act to ensure America doesn't wake up from this 
pandemic only to find itself in a legal nightmare that we could have 
and should have prevented
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.