Speaker 1: You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio.
Speaker 1: When the pandemic ends, the lawsuits will begin in earnest
Speaker 1: and a wave of personal injury lawsuits could bankrupt many businesses.
Speaker 1: The Trump administration is pushing for a quick restart of
Speaker 1: the nation's economy, but what happens to stores, restaurants, in
Speaker 1: theaters if they reopened too early? Joining me is Benjamin Zibersky,
Speaker 1: a professor at Fordham Law School. So where do you
Speaker 1: see the possible lawsuits coming from? Well, I'm not sure
Speaker 1: there's going to be a lot of lawsuits, but I
Speaker 1: think that one could think about employees who go back
Speaker 1: to work and then find that their workplace has other
Speaker 1: people who have COVID and then get it themselves and
Speaker 1: think about suing their employer. That would probably be a
Speaker 1: worker's compensation claim. And one could also think about consumers
Speaker 1: who go to a shop or a restaurant or a
Speaker 1: movie theater and believe that these places will have taken
Speaker 1: appropriate cautions only to find you know, coughing all around
Speaker 1: them and then get COVID and then decide all must
Speaker 1: have been because somebody there had COVID and suing the
Speaker 1: shop or a restaurant, a movie theater. If they do sue,
Speaker 1: what kind of proof would they need for their case
Speaker 1: to be successful. So a couple of things, I'd say.
Speaker 1: First of all, I don't think it's out of the
Speaker 1: question that businesses are going to be so worried about
Speaker 1: this that there's going to be a movement for some
Speaker 1: kind of protective legislation or in various states. So I'm
Speaker 1: going to assume that, just for the purposes of your question,
Speaker 1: that we have no legal change at all. So I
Speaker 1: actually think if you get sick at work, you know,
Speaker 1: the vast majority of states, I guess every state, you
Speaker 1: can bring a workers comp claim, and so I expect
Speaker 1: that there there will be a number of those if
Speaker 1: people get sick at work, which presumably some of them
Speaker 1: will asked to them more straightforward to torch suit. Hey,
Speaker 1: your restaurant, your shop gave me COVID. You know, I
Speaker 1: think that's going to be harder, first because you have
Speaker 1: to prove that actually the restaurant's shop was negligent and careless,
Speaker 1: and nobody knows what it really means to take the
Speaker 1: right level of precautions right now. And second because you'd
Speaker 1: have to prove that that's where you got it, and uh,
Speaker 1: if you didn't get it from somebody at home, or
Speaker 1: you didn't get it from somebody on the subway or
Speaker 1: who knows where, or that you didn't come into the
Speaker 1: store having them the first place. So I do think
Speaker 1: these are the negligent claims as opposed to the workers
Speaker 1: comp in particular, would be very difficult. Now would it
Speaker 1: be a defense if the businesses say I was following
Speaker 1: the advice of healthcare professionals or government officials, and I
Speaker 1: opened when they told me to, and I did what
Speaker 1: they told me to. So the short answer is no,
Speaker 1: not right now. So one of the interesting things about
Speaker 1: negligence law, and the reason why the United States and
Speaker 1: other common law countries are kind of distinctive in a way,
Speaker 1: is that it's a very big part of our law
Speaker 1: that just doing whatever the law said you're supposed to
Speaker 1: do is not necessarily an adequate defense. So there's a
Speaker 1: backdrop you have to be reasonable. Just doing what the
Speaker 1: laws is isn't necessarily okay to sail that would work, right.
Speaker 1: So let's say I'm in New York. So we're in
Speaker 1: New York and I'm just hypothetically, some long drawn outset
Speaker 1: of teful decisions, the Mayor of New York City, the
Speaker 1: Governant of New York, so on and so forth set
Speaker 1: forth the whole series of restrictions and rules for going
Speaker 1: back in a company lives up to it. But then,
Speaker 1: as it turns out, the owner of the company herself
Speaker 1: has been coughing a lot, but she doesn't think she
Speaker 1: has any particular reason to know, but basically does nothing
Speaker 1: about checking herself, and in fact is COVID positive and
Speaker 1: runs a little bakery or something. So whatever the set
Speaker 1: of rules are, you can imagine somebody making some sort
Speaker 1: of fact based argument that this store just didn't use
Speaker 1: common sense, and so that guess what it normally works now,
Speaker 1: I myself, if if I were a legislator being appealed
Speaker 1: to by some kind of business community, I might try
Speaker 1: to shift the law in this way and sort of
Speaker 1: give businesses more reassurance. If I wanted to protect the
Speaker 1: businesses and say, actually, we're going to change the law
Speaker 1: so that if you do stick to our laur cool
Speaker 1: you are not going to be capable of being sued.
Speaker 1: I'm not saying I favor that, because I do want
Speaker 1: everybody to use common sense. But right now, com playing
Speaker 1: with some particular series of standards is not necessarily going
Speaker 1: to insulate somebody. And even if it did, you'd still
Speaker 1: have to prove that they complied. Has that been done
Speaker 1: before giving limited immunity to businesses in a crisis? Sure,
Speaker 1: there's all kinds of situations. You know. Some of them
Speaker 1: have received a lot of criticisms by legal scholars, and
Speaker 1: some of them have received a lot of praise. Let
Speaker 1: me gives you two very prominent examples. The nine eleven
Speaker 1: Victims Compensation Fund, we principally think of as actually being
Speaker 1: the way to supply compensation to the family members of
Speaker 1: people who are lost in nine eleven. That's true, but
Speaker 1: there was another side, And the other side was that
Speaker 1: if the family accepted that the compensation on pay I would,
Speaker 1: so to speak, then they were barred from bringing a
Speaker 1: lawsuit against their airlines. And you know, in my opinion,
Speaker 1: there's a lot of debate about this, but I think
Speaker 1: my opinion is very well backed up. In my opinion,
Speaker 1: one of the motivations for Congress to pass this law
Speaker 1: was a worry that the airline industry arguably really had
Speaker 1: be negligently was going to be completely bankrupted by a
Speaker 1: nine eleven towards litigation unless Congress set up a font
Speaker 1: So that's one example. Another example is gun manufacturers went
Speaker 1: to Congress and um pleaded for a shield from a liability.
Speaker 1: And this wasn't health based, but they believed that different
Speaker 1: states lawsuits against the gun manufacturers, we're going to create
Speaker 1: a huge problem. And they got Congress to shield them
Speaker 1: from that. And they're all kinds of their child vaccine litigation.
Speaker 1: There's a variety of different kinds I'm sorry, child vaccine legislation,
Speaker 1: variety of different kinds of legislation that is put together
Speaker 1: in times of crisis. So what about insurance. Don't stores
Speaker 1: and restaurants and theaters have insurance that would cover them? Well,
Speaker 1: there are two ways to look at that. The short answers,
Speaker 1: yes they do. But um, First of all, um, many
Speaker 1: of these insurance policies are going to have various kinds
Speaker 1: of limitations or exclusions. And second of all, it also
Speaker 1: deepens the well of commercial enterprises that could well be
Speaker 1: appealing to legislators for protection and means the world of
Speaker 1: insurers are very possibly going to go to legislators that
Speaker 1: is in federal level to try to get protection. These
Speaker 1: personal injury lass would seem like they'd be very hard
Speaker 1: to win, but that doesn't mean that there won't be
Speaker 1: a lot of them filed. And in some cases or
Speaker 1: in most cases, will the lawyers be looking for early
Speaker 1: settlements instead of going to trial. So that's hard to predict.
Speaker 1: And you know, I'm hoping that there won't be a
Speaker 1: lot of people who do get sick and these establishments
Speaker 1: for workplaces, and that there won't be a lot of litigation.
Speaker 1: So with that said, first of all, I just can't
Speaker 1: predict exactly what's going to happen. I suppose if one
Speaker 1: saw a workplace with suddenly a huge number of employees
Speaker 1: or a huge number of customers getting sick, have that
Speaker 1: sort of picture of the facts might make for a
Speaker 1: conger case. Um. Second of all, you know, just to
Speaker 1: talk about the reality of this. In theory of course,
Speaker 1: people bringing lawsuits, it's supposed to be driven by, um,
Speaker 1: the needs of the injured person, not necessarily by strategic
Speaker 1: decision to see that a certain kind of litigation can
Speaker 1: be more successful than others. To the degree that things
Speaker 1: are are driven by the needs of a litigant, We
Speaker 1: of course usually do have settlements, and early settlements are
Speaker 1: common too, because litigation can take years and years and years.
Speaker 1: To the degree that the initial wave of are hoping
Speaker 1: to establish the viability of a certain kind of litigation
Speaker 1: and have a particularly compelling set of facts are litigant,
Speaker 1: you know, those are the kinds of cases where people
Speaker 1: will push for very very high settlements and defended will
Speaker 1: not want to display vulnerability usually and will not take them.
Speaker 1: So it will depend, as you know, the overwhelming majority
Speaker 1: of tortures to settle. Thank you so much. That's Benjamin's
Speaker 1: a Purskey professor at Fordham Law School. As healthcare workers
Speaker 1: across the country struggle with the demands of the coronavirus
Speaker 1: pandemic and the lack of protective gear, New York nurses
Speaker 1: are suing over a hospital systemic failure to protect them.
Speaker 1: The New York State Nurses Association is representing more than
Speaker 1: nurses at Montefiore and Westchester Medical Centers who want a
Speaker 1: court to order those institutions to protect them. My guest
Speaker 1: is James Brodney, professor at Fordham Law School. So tell
Speaker 1: us about the lawsuits. The lawsuit in federal court, which
Speaker 1: was filed yesterday, is seeking an injunction ordering the hospital
Speaker 1: to provide certain what the nurses are arguing is essential
Speaker 1: protections so that they can do their jobs effectively without
Speaker 1: serious risks to their health and to the health of
Speaker 1: the patients they work with. And there are five or
Speaker 1: six major things that they're asking for that they say
Speaker 1: that hospital has not been providing. What would you say
Speaker 1: is the major thing that they want the hospital to provide?
Speaker 1: Is there one or two? Well, I would say there
Speaker 1: are several. I mean, they want protective respirators, which are
Speaker 1: more than surgical masks. These are things that will actually
Speaker 1: give them the kind of protection I mean, first of all,
Speaker 1: they're not things have to be discarded after each youth.
Speaker 1: They also need gowns that are fluid resistant, that are
Speaker 1: impenetrable so that they can continue to wear them or
Speaker 1: change from them because they're constantly exposed to patients who
Speaker 1: have COVID, and they want testing on demand, both for
Speaker 1: COVID itself if they have it, and also for the
Speaker 1: presence of antibodies so that they and know that they're
Speaker 1: relatively protected. So aren't they just asking the hospitals in
Speaker 1: this lawsuit to do what the hospitals are supposed to
Speaker 1: be doing. Anyway, Well, yes, to some extent, that's exactly right.
Speaker 1: I mean, what's difficult about this is that there aren't
Speaker 1: The lawsuit itself is running. I don't mean to get
Speaker 1: too technical here, but because this is a union and
Speaker 1: they have a collective bargaining agreement with the hospital, and
Speaker 1: in that collective bargaining agreement, one of the articles in
Speaker 1: the agreement is that the hospital will take the steps
Speaker 1: that are necessary to assure employee health and safety. And
Speaker 1: that's what they're suing to get. In other words, they're
Speaker 1: trying to get an injunction so that an arbitrator will
Speaker 1: eventually agree with them that those steps are not being taken.
Speaker 1: But if they have to wait for an arbitrator, nurses
Speaker 1: will get sick and die. The point that I'm trying
Speaker 1: to make here is that it's all about enforcing a
Speaker 1: collective bargaining agreement, and there aren't statutory requirements that are
Speaker 1: sufficient to be able to sue just under them. Now,
Speaker 1: this is a problem with the affirmative protections that are
Speaker 1: being provided more generally. I mean, we have an Occupational
Speaker 1: Safety and Health Administration and it is not doing yet
Speaker 1: what it should be doing, which is to require certain
Speaker 1: protective steps. It's making suggestions, it's offering tips and guidance
Speaker 1: to employers, but it hasn't yet done something, for instance,
Speaker 1: to require some of the things that are in the
Speaker 1: CDC guidelines. So the union said that four WITZ nurses
Speaker 1: have been hospitalized in New York and at least a
Speaker 1: hundred fifty have tested positive for the coronavirus. So to
Speaker 1: an average person hearing about this lawsuit, it sounds like
Speaker 1: a slam dunk for the nurses. But is it. Well,
Speaker 1: this is a kind of a specialized area of labor law,
Speaker 1: UH where you can seek an injunction to aid your
Speaker 1: motion to require arbitration. Normally this is a grievance. The
Speaker 1: grievance would go to arbitration, the arbitrator would review it,
Speaker 1: and the arbitrator would decide, and the arbitrator's judgment is
Speaker 1: likely to be final. I mean, the parties have negotiated
Speaker 1: for arbitration rather than external law in this situation, but
Speaker 1: it takes a while for arbitrators to rule. And what
Speaker 1: the nurses are trying to do is to get the
Speaker 1: federal court to compel these practices pending the result in arbitration.
Speaker 1: I mean, they have demonstrated, they think they've demonstrated, and
Speaker 1: there's good reason to think they have either likely success
Speaker 1: or a sufficiently serious set of questions, and they obviously
Speaker 1: are alleging irreparable harm um. But one could imagine that
Speaker 1: a federal judge might look at this and say, I'm
Speaker 1: not prepared to say that I shouldn't just let the
Speaker 1: arbitration process run its course because they're not seeking ultimate relief,
Speaker 1: they're seeking preliminary relief. Is this a real effort that
Speaker 1: will go on past the pandemic or is this an
Speaker 1: attempt to focus the public and hospitals on the issues here?
Speaker 1: I mean, I think it will go on past the
Speaker 1: pandemic because there are going to be a series of
Speaker 1: questions that may not be limited to nurses in terms
Speaker 1: of the best way to protect the public and workers.
Speaker 1: There are a lot of essential workers who aren't only
Speaker 1: in healthcare, so that some of these issues are going
Speaker 1: to resonate in retail stores, for grocery workers, for warehouse workers.
Speaker 1: Montfiore said in a statement that the union's leadership has
Speaker 1: chosen to attack a system and the commitment of thousands
Speaker 1: of their colleagues who have followed the governor's emergency orders
Speaker 1: and are selflessly doing all they can to fight COVID
Speaker 1: nineteen and save lives. The question is what's the obligation
Speaker 1: and duty for a hospital and the nurses haven't attacked
Speaker 1: thousands of people who are doing all they can. The
Speaker 1: nurses are in that population. The question of whether the
Speaker 1: hospital administration is doing all it can is what the
Speaker 1: lawsuit is about. Thank you, Jim. That's James Brodney, a
Speaker 1: professor at Fordham Law School. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg Ye