As businesses reopen during the COVID-19 pandemic, tort reformers are mobilizing to enact federal and state protections against an anticipated plethora of personal injury lawsuits, but plaintiffs attorneys vow to sue companies that negligently expose customers and employees.

The battle, so far, is playing out in Washington, D.C., where Senate Majority Leader Mitch McConnell has said the next COVID-19 stimulus package would include liability protections, a move fiercely opposed by Democrats. More than 100 plaintiffs organizations, including the American Association for Justice, said in an April 29 letter to Congress that they "strongly oppose" legislation that would give "nationwide immunity for businesses that operate in an unreasonably unsafe manner, causing returning workers and consumers to risk COVID-19 infection."

The concerns are hitting Main Street as some restaurants, movie theaters, and other businesses have reopened in certain states, including Georgia and Texas.

"The level of concern is widespread across the business community in terms of the emerging liability issues," said Harold Kim, president of the U.S. Chamber's Institute for Legal Reform.

It is no veiled threat, given that companies such as Princess Cruise Lines, Walmart, and at least three elderly care facilities already face wrongful death lawsuits. Public Justice has sued Smithfield Foods for allegedly creating a public nuisance by failing to protect its workers at a pork processing plant in Missouri.

"Our real focus is on recognizing, as businesses reopen, there will be a new line of potential challenges," said Sherman Joyce, president of the American Tort Reform Association, "and a lot of businesses almost see having some protection, a reasonable type of protection against the potential for endless litigation, as a necessity for them to be able to reopen."

But reopening the economy also requires workers to feel protected, said Linda Lipsen, CEO of the AAJ.

"The most important thing is the goal is to try to open the economy and to protect the public," she said. "The public is not going to feel protected if their employer or a hotel or a restaurant doesn't take reasonable steps to protect them."

Who is at risk?

Several states, such as New York, already have enacted liability shields for health care providers, whose workers are on the front lines of the COVID-19 pandemic. Nursing homes account for a large share of the 60,000 coronavirus deaths in the United States.

Congress has introduced a bill that would protect health care providers on a national level. But this week, President Donald Trump signed an executive order that would protect meat processing plants, invoking the Defense Production Act to ensure Americans had a "reliable supply of products like beef, pork, and poultry."

McConnell, a Republican from Kentucky, feared the "biggest trial lawyer bonanza in history" could hit all types of businesses.

"While our nation is asking everyone from front-line health care professionals to essential small-business owners to major employers to adapt in new ways and keep serving, a massive tangle of federal and state laws could easily mean their heroic efforts are met with years of endless lawsuits," he said. "The brave health care workers battling this virus and the entrepreneurs who will reopen our economy deserve strong protections from opportunistic lawsuits."

The AAJ, in a statement, said workers need the protections, not companies: "The economy will not restart if Americans feel that they are at risk and there is no way to hold bad actors accountable."

Only a handful of U.S. lawsuits are pending over COVID-19 deaths and illnesses, despite the number of coronavirus cases exceeding 1 million. But the cases all make similar allegations: the companies knew about the coronavirus but did not do enough to prevent its spread.

"What's different about this case, and others like it, is that they, unlike the members of the public adversely affected here, were on notice," said Rusty Hardin, of Houston's Rusty Hardin & Associates, who filed one of two wrongful death lawsuits against Princess Cruise. His case notes Princess Cruise knew of coronavirus outbreaks on its ships as early as February. "At the heart of a lot of these cases is going to be 'you had information we didn't have, and if you had acted on that information, our harm would not have occurred.'"

What are the claims?

At the forefront of liability concerns are lawsuits alleging the negligence of a business caused customers or employees to get the coronavirus.

"These are claims that as an employee, or as a customer at a business, whether grocery stores or movie theaters, you did not take appropriate actions to safeguard me from the coronavirus, and I've had injury that flowed from that," Kim said. "Your basic negligence type of claim is a big area of concern."

Kim said he envisioned federal legislation that would create a "safe harbor" for businesses complying with the guidelines of the U.S. Centers for Disease Control and Prevention. Such a move would impose a new standard of care for negligence under unprecedented circumstances.

"Certain states are starting to reopen gradually," he said. "There's so many questions about what do I do? What standard do I put here? At least having legislation from Congress that is uniform, and establishes a safe harbor, would go a long way in giving that kind of confidence."

In a white paper released this month, ATRA warned of lawsuits brought against a range of businesses alleging exposure to the coronavirus, even if plaintiffs never get ill. It references lawsuits already brought against Princess Cruise for emotional distress.

ATRA is pushing for federal legislation, but that remains an "open question," Joyce said, given the opposition. The organization also is targeting state legislatures, focused on protections that would distinguish between lawsuits involving a "significant injury" and no injury at all, he said.

"There's a clear line of demarcation of the type of cases that should see the light of day," Joyce said. Being out sick for two or three weeks, but recovering from home, is not the same as ending up on a ventilator. "It's drawing lines between the more serious cases and those that seem to be a little, candidly, less serious," he said.

Although workers' compensation could resolve most claims from employees, tort reform groups anticipate exposure lawsuits. They reference an April 6 lawsuit against Walmart filed on behalf of an employee of an Illinois store who died of COVID-19.

Plaintiffs groups are fighting back against the restrictions.

"Basically, they're saying that unreasonable conduct should be immunized," said the AAJ's Lipsen. "We just disagree. We want to make sure that everyone is accountable for their behavior."

Plaintiffs attorneys said that coronavirus cases, even without liability protections, are not going to be easy. They cited numerous challenges that would make it hard to sue businesses for exposing customers to COVID-19. Lawyers would have to prove that the defendant, and not another business, caused someone to get the coronavirus, which has an incubation period of 14 days.

Cases already filed target cruise ships, nursing homes and meat packing plants, all of which have "people tightly packed together, where transmission and exposure is going to be at its highest," said Robert Mongeluzzi of Philadelphia's Saltz Mongeluzzi & Bendesky, who has brought injury and wrongful death lawsuits over disasters involving duck boats and train derailments.

"It becomes more challenging, and a much less likely chance of litigation, where you don't have those clusters and have the general economy going back up," he said.

Joyce, of ATRA, said the success of such a lawsuit did not matter.

"If you're a business starting to reopen after having no revenue for two months, and you get a bunch of lawsuits, that's a burden and expense even if they get dismissed," he said.

Another claim predicted to end up in exposure cases is public nuisance, which does not rely on causation.

"It could be a very attractive way for cities and counties to pursue public nuisance claims," Kim said, noting Oklahoma's public nuisance case against Johnson & Johnson over the opioid epidemic that landed a judgment establishing a $246 million abatement fund. "It hasn't gotten there yet, but it's something that definitely we should be concerned about."

In an April 23 lawsuit, Public Justice, Towards Justice and Heartland Center for Jobs and Freedom Inc. alleged that Smithfield Foods Inc. created a public nuisance by failing to provide masks and stagger breaks for employees at a cramped pork processing plant in Milan, Missouri. That put workers at risk, particularly given hundreds of coronavirus cases turned one of its South Dakota plants into a "leading hot spot" for COVID-19 in the nation.

"Our hope is that state courts will, and federal courts will, step in and protect workers, because companies will place profits over people," said David Muraskin, an attorney for Public Justice in the case, which seeks injunctive relief. "This is the classic public nuisance."

Julia Duncan, the AAJ's senior director of government affairs, agreed. While unprecedented, the COVID-19 pandemic fits the bill for a public nuisance claim, she said.

"It's a case of first impression for the court, but you have massive amounts of people concentrated in one area, or in this case one employer, unnecessarily sick and dying, and also sending ripple effects throughout the entire community," she said. "And that community needs help to right the wrong and to remedy the situation, and those are exactly the types of public nuisance claims that should absolutely go forward in a court of law."

What have lawyers filed?

Despite executive orders designed to protect health care providers, nearly a dozen wrongful death lawsuits are pending against nursing homes and elderly care facilities, including the one in Seattle that was home to the first U.S. outbreak.

John Rollins, of Rollins/Kavanaugh in Kansas City, Missouri, has filed five of the six lawsuits against Riverbend Post Acute Rehabilitation, a care center in Kansas City, Kansas, where nearly 100 residents tested positive for the coronavirus. The lawsuits allege that the facility allowed an employee who had cough and fever symptoms to come to work in late March. He later tested positive for the coronavirus, and, by April 3, nearly 20 employees and residents had tested positive.

Rollins sued even though Kansas Gov. Laura Kelly issued an executive order on April 22 limiting liability against health care professionals. That order, Rollins said, prevents lawsuits "where a health care professional has to make a triage decision as to who to put on a ventilator in face of limited resources."

"That is not what our cases are about," he said. "Our cases are focused on the idea that this was a known issue for nursing homes. Even before this happened, all nursing homes are required to have an infection control protocol in place."

Not to mention, Rollins noted, the order does not apply retroactively.

Riverbend's executive director, Cory Schulte, declined to comment. In a statement on its website, the company noted that 90% of its residents impacted by COVID-19 are "medically stable."

Another elderly care facility, Arbor Terrace at Cascade, in Atlanta, faces four wrongful death lawsuits filed a few days after Georgia Gov. Brian Kemp issued an executive order on April 20 protecting health care providers from liability.

"But they left a window, a sliver of a window, saying that instead of approved ordinary negligence in a case like this, the standards are heightened to having to prove gross negligence," said Roderick Edmond, of Atlanta's Edmond Lindsay & Atkins, who filed the lawsuits. "The little information we have right now, I believe we can prove that burden."

He said there are witnesses saying that even though Arbor Terrace sent relatives a March 11 email stating they could not come visit residents, staff entered the facility without gloves or masks and did not practice social distancing.

So far, 80% of the 62 residents got COVID-19, Edmond said.

The facility's parent company, The Arbor Co., did not respond to a request for comment.

In the public nuisance suit against Smithfield, attorneys at Lathrop GPM and Hunton Andrews Kurth cited Trump's executive order, among other things, in moving to dismiss the case under jurisdictional grounds. The U.S. Department of Agriculture, not a judge, should address worker safety at the plant, they wrote.

In court filings, Muraskin called that argument "flimsy."

"The notion that USDA is in charge of worker safety only demonstrates the federal government has vacated the field, has no interest in protecting workers, and that the state common law we're suing under needs to provide the protection because no one else will," he said.