The U.S. Capitol building is seen during the coronavirus pandemic in Washington, D.C., June 6, 2020. Photo: Diego M. Radzinschi/ALM

As businesses lobby Congress to enact legislation that would protect them from COVID-19 liability, plaintiffs bar groups are insisting that the feared tide of litigation does not exist—and they are turning to a defense law firm's database to prove it.

In a statement this week, the trial lawyer group the American Association for Justice, in opposing a shield to liability, cited defense firm Hunton Andrews Kurth's "COVID-19 complaint tracker," which listed more than 3,500 lawsuits relating to COVID-19 since the pandemic hit.

Most of the lawsuits are unrelated to COVID-19 exposure claims, said Julia Duncan, senior director of government affairs at the AAJ. She said the group normally would not quote a defense firm's numbers, but advocates for tort reform were using Hunton Andrews' data to make their case.

"No matter what data set you're using, there are very, very few lawsuits filed compared to how many infections and deaths have been reported," she said.

A Hunton Andrews representative did not respond to a request for comment.

The data fight comes as Congress, which is reconvening on Monday, is mulling another COVID-19 relief bill of at least $1 trillion that would include not just liability protections but additional funding for schools, small businesses and the unemployed. Senate Majority Leader Mitch McConnell, R-Kentucky, has pushed for a "safe harbor" for businesses across all industries that are reopening, many of which fear that customers and employees could sue them. He wants the proposed liability shield to last for five years and be retroactive to December.

On Thursday, U.S. Chamber of Commerce Thomas Donohue sent a letter to President Donald Trump, Speaker of the House Nancy Pelosi, D-California, and McConnell outlining five top priorities for the proposed bill, including "liability protection against unwarranted lawsuits."

Such "timely, temporary, and targeted liability relief" would apply to a "wide range of employers," including health care providers, nonprofits and educational institutions. The relief would cover health care providers "on the front lines of the COVID-19 response," manufacturers that use their facilities to make personal protective equipment and other countermeasures, as well as "businesses and other entities that work to follow government guidelines against COVID-19 exposure claims."

"A safe-harbor will ensure that bad actors can be held accountable while simultaneously protecting those entities who are working to follow public health guidance," the letter says.

The Chamber also said it would oppose any attempts at encouraging class actions or limiting arbitration.

"This is an age-old tactic by the Chamber to use a national emergency to seek an opportunistic, self-serving goal," said Remington Gregg, counsel for civil justice and consumer rights at Public Citizen, which released an "issue brief" on Thursday opposing the Chamber's priorities. The brief also cited Hunton Andrews' data in arguing against the Chamber's position that a liability shield was essential to businesses. "These data show one thing clearly: There is no flood; there is a trickle," the brief says.

More than a decade ago, however, the data was hard to find, Gregg said. "We actually have the data now, for all to see, that shows the wave of litigation has not materialized, and the sky is not falling."

Breaking down Hunton Andrews' data, as of Monday, the AAJ found that 59% are cases that businesses filed against their insurance firms over business interruption claims, civil rights cases brought over lockdowns or other governmental orders, and prisoner petitions. Only 31 were wrongful death cases against nursing homes, despite 55,000 residents and workers at such facilities dying from the coronavirus, and employment cases totaled 285, according to the AAJ.

"They're looking at the aggregate total number but also making these vastly inaccurate assumptions those are cases against business owners for COVID exposure, and they are not," Duncan said. "The data doesn't match up with what they're arguing they need."

Yet, according to a release this month by Fisher Phillips, another defense firm that handles employment cases, 43% of the 238 lawsuits tied to COVID-19 hit the courts in June, which means there has been an "exponential increase." Most are employment discrimination or paid leave claims, what the firm called "classic workplace disputes wrapped up in a COVID-19 context."

Jim Swartz, an Atlanta partner at Seyfarth Shaw, which also has been tracking employment lawsuits related to COVID-19, said, "we're seeing similar numbers to what Hunton's employment numbers are."

"What we're seeing is this area popping up is sort of garden-variety tort claims: negligence claims, wrongful death claims," he said, noting that many are showing up in state courts, which are sometimes more difficult to track.

Cases asserting workplace safety claims are rare, he said, but there is still a "lively flow" of traditional employment lawsuits, such as discrimination or wage-and-hour claims, and some of those do include safety concerns relating to COVID-19.

He also said the vast majority of calls he gets from manager clients are about COVID-19.

"What businesses are concerned about right now is that there is, from federal and state authorities, varying guidance on what is an appropriate and safe way to deal with both employees and the public," he said. "And these employers and businesses are faced with making decisions about how best to comply with those guidelines."

Duncan remained skeptical that a surge in cases is imminent. She said many businesses are taking reasonable precautions to protect employees and customers from the coronavirus. Lawsuits would need to prove that the actions, or inactions, of a business actually caused the plaintiff's exposure to COVID-19.

"Those two elements are going to be very, very difficult to prove in COVID exposure or death and disease cases," Duncan said.

Then there is this: a Yahoo-Finance Harris poll out this week found that less than one-third of people would sue if exposed to COVID-19 while visiting a business. Of the 2,094 respondents surveyed from July 6-12, about 70% said they would not be likely to sue.