Mississippi lawmakers seek to restrict COVID-19 lawsuits, damages

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Rogelio V. Solis, AP

Sen. Sally Doty, R-Brookhaven

Mississippi lawmakers, like those in other states, are moving to protect businesses, individuals, governments, schools, health providers, nonprofits and churches from lawsuits over COVID-19.

“This is a pandemic, and we’ve been dealing with the unknown,” Senate Judiciary A Chairwoman Sally Doty, R-Brookhaven, said Tuesday. “We are trying to get our economy back to business.”

Doty authored Senate Bill 3049, the “Back to Business Liability Assurance Act.”  It would prohibit lawsuits over COVID-19 claims, except where “actual malice or willful, intentional misconduct” could be proved. It would increase the burden of proof in such lawsuits from a preponderance of evidence to “clear and convincing evidence.”

It would also cap noneconomic damages in such lawsuits to $250,000. Under existing law, those damages would be capped at $1 million for businesses and $500,000 for health providers.

Sen, Derrick Simmons, D-Greenville, questioned why the legislation is needed, given Mississippi’s strict existing limitations and damage caps on lawsuits from years of GOP-led tort reform.

“And if we are raising the standard of proof, why are we even fooling with the (damages) caps?” Simmons said.

Sen. Angela Turner Ford, D-West Point, questioned the protection the measure would provide for companies that shifted production to personal protective equipment and sanitation products during the pandemic that might prove unsafe or ineffective.

Sen. Barbara Blackmon, D-Canton, said, “They can just experiment on our people.”

Doty said companies that shifted to making badly needed PPE should be protected from litigation.

“We were in a time of crisis,” Doty said. “You couldn’t get any hand sanitizer, or medical gowns or PPE. They rose to the challenge to help our communities.”

Scott Waller, president of the Mississippi Economic Council – the state’s chamber of commerce – said the threat of lawsuits over COVID-19 cases is an “impediment” to businesses getting back to speed.

“This goes beyond just businesses,” Waller said, “religious organizations, cities, counties – we are in very unusual times … A lot of these places have spent tens of thousands or hundreds of thousands of dollars trying to follow guidelines and do what’s right.”

Officials with the Mississippi Association for Justice, a lawyers’ group that has fought limits on people’s rights to sue and collect damages, did not immediately respond to a request for comment.

Sen. Nicole Akins Boyd, R-Oxford, told of a constituent business owner she knows that was shut down and afraid to reopen – despite following public health guidelines – because a couple of employees had contracted coronavirus.

“There has got to be some protection for business owners,” Boyd said. “Otherwise, it will chill our economy.”

Sen. Chris McDaniel, R-Ellisville, said that given the difficulty in pinpointing when and where someone contracted COVID-19, “a litany” of lawsuits could be filed against businesses and used to extort money without liability protections.

The protections under the measure would be retroactive to March 14, when the governor declared a state of emergency for Mississippi.

Other states, including Iowa, North Carolina and Utah, have enacted COVID-19 lawsuit protections and many others are considering such measures. Congressional leaders are also discussing federal protection for businesses in future coronavirus relief spending bills.

Companies such as Amazon, McDonalds, Safeway and Walmart are facing lawsuits claiming they didn’t do enough to protect workers.

Doty’s Judiciary A Committee on Tuesday passed the bill on to the full Senate. The measure is expected to pass the Legislature with overwhelming support from the GOP supermajority.

Gov. Tate Reeves supports providing protection for businesses.

“Small businesses are the backbone of our economy,” Reeves spokeswoman Renae Eze said in a statement. “… Throughout this pandemic, Gov. Reeves has worked with the Legislature to protect Mississippi businesses that are already struggling under the weight of this latest storm. The governor is encouraged by the progress made and looks forward to seeing what they come up with.”