WEBVTT - When Businesses Reopen, The Lawsuits Begin

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<v Speaker 1>You're listening to Bloomberg Law with June Grazzo from Bloomberg Radio.

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<v Speaker 1>When the pandemic ends, the lawsuits will begin in earnest

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<v Speaker 1>and a wave of personal injury lawsuits could bankrupt many businesses.

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<v Speaker 1>The Trump administration is pushing for a quick restart of

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<v Speaker 1>the nation's economy, but what happens to stores, restaurants, in

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<v Speaker 1>theaters if they reopened too early? Joining me is Benjamin Zibersky,

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<v Speaker 1>a professor at Fordham Law School. So where do you

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<v Speaker 1>see the possible lawsuits coming from? Well, I'm not sure

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<v Speaker 1>there's going to be a lot of lawsuits, but I

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<v Speaker 1>think that one could think about employees who go back

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<v Speaker 1>to work and then find that their workplace has other

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<v Speaker 1>people who have COVID and then get it themselves and

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<v Speaker 1>think about suing their employer. That would probably be a

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<v Speaker 1>worker's compensation claim. And one could also think about consumers

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<v Speaker 1>who go to a shop or a restaurant or a

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<v Speaker 1>movie theater and believe that these places will have taken

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<v Speaker 1>appropriate cautions only to find you know, coughing all around

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<v Speaker 1>them and then get COVID and then decide all must

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<v Speaker 1>have been because somebody there had COVID and suing the

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<v Speaker 1>shop or a restaurant, a movie theater. If they do sue,

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<v Speaker 1>what kind of proof would they need for their case

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<v Speaker 1>to be successful. So a couple of things, I'd say.

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<v Speaker 1>First of all, I don't think it's out of the

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<v Speaker 1>question that businesses are going to be so worried about

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<v Speaker 1>this that there's going to be a movement for some

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<v Speaker 1>kind of protective legislation or in various states. So I'm

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<v Speaker 1>going to assume that, just for the purposes of your question,

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<v Speaker 1>that we have no legal change at all. So I

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<v Speaker 1>actually think if you get sick at work, you know,

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<v Speaker 1>the vast majority of states, I guess every state, you

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<v Speaker 1>can bring a workers comp claim, and so I expect

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<v Speaker 1>that there there will be a number of those if

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<v Speaker 1>people get sick at work, which presumably some of them

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<v Speaker 1>will asked to them more straightforward to torch suit. Hey,

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<v Speaker 1>your restaurant, your shop gave me COVID. You know, I

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<v Speaker 1>think that's going to be harder, first because you have

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<v Speaker 1>to prove that actually the restaurant's shop was negligent and careless,

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<v Speaker 1>and nobody knows what it really means to take the

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<v Speaker 1>right level of precautions right now. And second because you'd

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<v Speaker 1>have to prove that that's where you got it, and uh,

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<v Speaker 1>if you didn't get it from somebody at home, or

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<v Speaker 1>you didn't get it from somebody on the subway or

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<v Speaker 1>who knows where, or that you didn't come into the

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<v Speaker 1>store having them the first place. So I do think

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<v Speaker 1>these are the negligent claims as opposed to the workers

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<v Speaker 1>comp in particular, would be very difficult. Now would it

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<v Speaker 1>be a defense if the businesses say I was following

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<v Speaker 1>the advice of healthcare professionals or government officials, and I

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<v Speaker 1>opened when they told me to, and I did what

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<v Speaker 1>they told me to. So the short answer is no,

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<v Speaker 1>not right now. So one of the interesting things about

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<v Speaker 1>negligence law, and the reason why the United States and

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<v Speaker 1>other common law countries are kind of distinctive in a way,

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<v Speaker 1>is that it's a very big part of our law

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<v Speaker 1>that just doing whatever the law said you're supposed to

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<v Speaker 1>do is not necessarily an adequate defense. So there's a

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<v Speaker 1>backdrop you have to be reasonable. Just doing what the

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<v Speaker 1>laws is isn't necessarily okay to sail that would work, right.

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<v Speaker 1>So let's say I'm in New York. So we're in

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<v Speaker 1>New York and I'm just hypothetically, some long drawn outset

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<v Speaker 1>of teful decisions, the Mayor of New York City, the

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<v Speaker 1>Governant of New York, so on and so forth set

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<v Speaker 1>forth the whole series of restrictions and rules for going

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<v Speaker 1>back in a company lives up to it. But then,

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<v Speaker 1>as it turns out, the owner of the company herself

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<v Speaker 1>has been coughing a lot, but she doesn't think she

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<v Speaker 1>has any particular reason to know, but basically does nothing

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<v Speaker 1>about checking herself, and in fact is COVID positive and

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<v Speaker 1>runs a little bakery or something. So whatever the set

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<v Speaker 1>of rules are, you can imagine somebody making some sort

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<v Speaker 1>of fact based argument that this store just didn't use

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<v Speaker 1>common sense, and so that guess what it normally works now,

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<v Speaker 1>I myself, if if I were a legislator being appealed

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<v Speaker 1>to by some kind of business community, I might try

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<v Speaker 1>to shift the law in this way and sort of

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<v Speaker 1>give businesses more reassurance. If I wanted to protect the

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<v Speaker 1>businesses and say, actually, we're going to change the law

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<v Speaker 1>so that if you do stick to our laur cool

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<v Speaker 1>you are not going to be capable of being sued.

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<v Speaker 1>I'm not saying I favor that, because I do want

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<v Speaker 1>everybody to use common sense. But right now, com playing

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<v Speaker 1>with some particular series of standards is not necessarily going

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<v Speaker 1>to insulate somebody. And even if it did, you'd still

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<v Speaker 1>have to prove that they complied. Has that been done

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<v Speaker 1>before giving limited immunity to businesses in a crisis? Sure,

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<v Speaker 1>there's all kinds of situations. You know. Some of them

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<v Speaker 1>have received a lot of criticisms by legal scholars, and

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<v Speaker 1>some of them have received a lot of praise. Let

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<v Speaker 1>me gives you two very prominent examples. The nine eleven

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<v Speaker 1>Victims Compensation Fund, we principally think of as actually being

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<v Speaker 1>the way to supply compensation to the family members of

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<v Speaker 1>people who are lost in nine eleven. That's true, but

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<v Speaker 1>there was another side, And the other side was that

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<v Speaker 1>if the family accepted that the compensation on pay I would,

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<v Speaker 1>so to speak, then they were barred from bringing a

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<v Speaker 1>lawsuit against their airlines. And you know, in my opinion,

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<v Speaker 1>there's a lot of debate about this, but I think

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<v Speaker 1>my opinion is very well backed up. In my opinion,

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<v Speaker 1>one of the motivations for Congress to pass this law

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<v Speaker 1>was a worry that the airline industry arguably really had

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<v Speaker 1>be negligently was going to be completely bankrupted by a

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<v Speaker 1>nine eleven towards litigation unless Congress set up a font

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<v Speaker 1>So that's one example. Another example is gun manufacturers went

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<v Speaker 1>to Congress and um pleaded for a shield from a liability.

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<v Speaker 1>And this wasn't health based, but they believed that different

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<v Speaker 1>states lawsuits against the gun manufacturers, we're going to create

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<v Speaker 1>a huge problem. And they got Congress to shield them

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<v Speaker 1>from that. And they're all kinds of their child vaccine litigation.

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<v Speaker 1>There's a variety of different kinds I'm sorry, child vaccine legislation,

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<v Speaker 1>variety of different kinds of legislation that is put together

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<v Speaker 1>in times of crisis. So what about insurance. Don't stores

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<v Speaker 1>and restaurants and theaters have insurance that would cover them? Well,

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<v Speaker 1>there are two ways to look at that. The short answers,

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<v Speaker 1>yes they do. But um, First of all, um, many

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<v Speaker 1>of these insurance policies are going to have various kinds

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<v Speaker 1>of limitations or exclusions. And second of all, it also

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<v Speaker 1>deepens the well of commercial enterprises that could well be

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<v Speaker 1>appealing to legislators for protection and means the world of

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<v Speaker 1>insurers are very possibly going to go to legislators that

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<v Speaker 1>is in federal level to try to get protection. These

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<v Speaker 1>personal injury lass would seem like they'd be very hard

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<v Speaker 1>to win, but that doesn't mean that there won't be

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<v Speaker 1>a lot of them filed. And in some cases or

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<v Speaker 1>in most cases, will the lawyers be looking for early

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<v Speaker 1>settlements instead of going to trial. So that's hard to predict.

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<v Speaker 1>And you know, I'm hoping that there won't be a

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<v Speaker 1>lot of people who do get sick and these establishments

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<v Speaker 1>for workplaces, and that there won't be a lot of litigation.

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<v Speaker 1>So with that said, first of all, I just can't

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<v Speaker 1>predict exactly what's going to happen. I suppose if one

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<v Speaker 1>saw a workplace with suddenly a huge number of employees

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<v Speaker 1>or a huge number of customers getting sick, have that

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<v Speaker 1>sort of picture of the facts might make for a

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<v Speaker 1>conger case. Um. Second of all, you know, just to

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<v Speaker 1>talk about the reality of this. In theory of course,

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<v Speaker 1>people bringing lawsuits, it's supposed to be driven by, um,

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<v Speaker 1>the needs of the injured person, not necessarily by strategic

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<v Speaker 1>decision to see that a certain kind of litigation can

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<v Speaker 1>be more successful than others. To the degree that things

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<v Speaker 1>are are driven by the needs of a litigant, We

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<v Speaker 1>of course usually do have settlements, and early settlements are

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<v Speaker 1>common too, because litigation can take years and years and years.

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<v Speaker 1>To the degree that the initial wave of are hoping

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<v Speaker 1>to establish the viability of a certain kind of litigation

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<v Speaker 1>and have a particularly compelling set of facts are litigant,

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<v Speaker 1>you know, those are the kinds of cases where people

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<v Speaker 1>will push for very very high settlements and defended will

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<v Speaker 1>not want to display vulnerability usually and will not take them.

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<v Speaker 1>So it will depend, as you know, the overwhelming majority

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<v Speaker 1>of tortures to settle. Thank you so much. That's Benjamin's

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<v Speaker 1>a Purskey professor at Fordham Law School. As healthcare workers

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<v Speaker 1>across the country struggle with the demands of the coronavirus

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<v Speaker 1>pandemic and the lack of protective gear, New York nurses

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<v Speaker 1>are suing over a hospital systemic failure to protect them.

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<v Speaker 1>The New York State Nurses Association is representing more than

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<v Speaker 1>nurses at Montefiore and Westchester Medical Centers who want a

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<v Speaker 1>court to order those institutions to protect them. My guest

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<v Speaker 1>is James Brodney, professor at Fordham Law School. So tell

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<v Speaker 1>us about the lawsuits. The lawsuit in federal court, which

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<v Speaker 1>was filed yesterday, is seeking an injunction ordering the hospital

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<v Speaker 1>to provide certain what the nurses are arguing is essential

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<v Speaker 1>protections so that they can do their jobs effectively without

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<v Speaker 1>serious risks to their health and to the health of

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<v Speaker 1>the patients they work with. And there are five or

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<v Speaker 1>six major things that they're asking for that they say

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<v Speaker 1>that hospital has not been providing. What would you say

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<v Speaker 1>is the major thing that they want the hospital to provide?

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<v Speaker 1>Is there one or two? Well, I would say there

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<v Speaker 1>are several. I mean, they want protective respirators, which are

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<v Speaker 1>more than surgical masks. These are things that will actually

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<v Speaker 1>give them the kind of protection I mean, first of all,

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<v Speaker 1>they're not things have to be discarded after each youth.

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<v Speaker 1>They also need gowns that are fluid resistant, that are

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<v Speaker 1>impenetrable so that they can continue to wear them or

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<v Speaker 1>change from them because they're constantly exposed to patients who

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<v Speaker 1>have COVID, and they want testing on demand, both for

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<v Speaker 1>COVID itself if they have it, and also for the

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<v Speaker 1>presence of antibodies so that they and know that they're

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<v Speaker 1>relatively protected. So aren't they just asking the hospitals in

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<v Speaker 1>this lawsuit to do what the hospitals are supposed to

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<v Speaker 1>be doing. Anyway, Well, yes, to some extent, that's exactly right.

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<v Speaker 1>I mean, what's difficult about this is that there aren't

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<v Speaker 1>The lawsuit itself is running. I don't mean to get

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<v Speaker 1>too technical here, but because this is a union and

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<v Speaker 1>they have a collective bargaining agreement with the hospital, and

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<v Speaker 1>in that collective bargaining agreement, one of the articles in

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<v Speaker 1>the agreement is that the hospital will take the steps

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<v Speaker 1>that are necessary to assure employee health and safety. And

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<v Speaker 1>that's what they're suing to get. In other words, they're

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<v Speaker 1>trying to get an injunction so that an arbitrator will

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<v Speaker 1>eventually agree with them that those steps are not being taken.

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<v Speaker 1>But if they have to wait for an arbitrator, nurses

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<v Speaker 1>will get sick and die. The point that I'm trying

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<v Speaker 1>to make here is that it's all about enforcing a

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<v Speaker 1>collective bargaining agreement, and there aren't statutory requirements that are

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<v Speaker 1>sufficient to be able to sue just under them. Now,

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<v Speaker 1>this is a problem with the affirmative protections that are

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<v Speaker 1>being provided more generally. I mean, we have an Occupational

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<v Speaker 1>Safety and Health Administration and it is not doing yet

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<v Speaker 1>what it should be doing, which is to require certain

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<v Speaker 1>protective steps. It's making suggestions, it's offering tips and guidance

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<v Speaker 1>to employers, but it hasn't yet done something, for instance,

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<v Speaker 1>to require some of the things that are in the

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<v Speaker 1>CDC guidelines. So the union said that four WITZ nurses

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<v Speaker 1>have been hospitalized in New York and at least a

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<v Speaker 1>hundred fifty have tested positive for the coronavirus. So to

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<v Speaker 1>an average person hearing about this lawsuit, it sounds like

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<v Speaker 1>a slam dunk for the nurses. But is it. Well,

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<v Speaker 1>this is a kind of a specialized area of labor law,

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<v Speaker 1>UH where you can seek an injunction to aid your

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<v Speaker 1>motion to require arbitration. Normally this is a grievance. The

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<v Speaker 1>grievance would go to arbitration, the arbitrator would review it,

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<v Speaker 1>and the arbitrator would decide, and the arbitrator's judgment is

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<v Speaker 1>likely to be final. I mean, the parties have negotiated

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<v Speaker 1>for arbitration rather than external law in this situation, but

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<v Speaker 1>it takes a while for arbitrators to rule. And what

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<v Speaker 1>the nurses are trying to do is to get the

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<v Speaker 1>federal court to compel these practices pending the result in arbitration.

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<v Speaker 1>I mean, they have demonstrated, they think they've demonstrated, and

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<v Speaker 1>there's good reason to think they have either likely success

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<v Speaker 1>or a sufficiently serious set of questions, and they obviously

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<v Speaker 1>are alleging irreparable harm um. But one could imagine that

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<v Speaker 1>a federal judge might look at this and say, I'm

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<v Speaker 1>not prepared to say that I shouldn't just let the

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<v Speaker 1>arbitration process run its course because they're not seeking ultimate relief,

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<v Speaker 1>they're seeking preliminary relief. Is this a real effort that

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<v Speaker 1>will go on past the pandemic or is this an

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<v Speaker 1>attempt to focus the public and hospitals on the issues here?

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<v Speaker 1>I mean, I think it will go on past the

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<v Speaker 1>pandemic because there are going to be a series of

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<v Speaker 1>questions that may not be limited to nurses in terms

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<v Speaker 1>of the best way to protect the public and workers.

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<v Speaker 1>There are a lot of essential workers who aren't only

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<v Speaker 1>in healthcare, so that some of these issues are going

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<v Speaker 1>to resonate in retail stores, for grocery workers, for warehouse workers.

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<v Speaker 1>Montfiore said in a statement that the union's leadership has

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<v Speaker 1>chosen to attack a system and the commitment of thousands

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<v Speaker 1>of their colleagues who have followed the governor's emergency orders

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<v Speaker 1>and are selflessly doing all they can to fight COVID

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<v Speaker 1>nineteen and save lives. The question is what's the obligation

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<v Speaker 1>and duty for a hospital and the nurses haven't attacked

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<v Speaker 1>thousands of people who are doing all they can. The

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<v Speaker 1>nurses are in that population. The question of whether the

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<v Speaker 1>hospital administration is doing all it can is what the

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<v Speaker 1>lawsuit is about. Thank you, Jim. That's James Brodney, a

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<v Speaker 1>professor at Fordham Law School. Thanks for listening to the

0:16:23.560 --> 0:16:26.960
<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

0:16:30.960 --> 0:16:37.640
<v Speaker 1>slash podcast. I'm June Brasso. This is Bloomberg Ye