Litigation does more than settle scores between injured parties—the mere possibility of being sued helps keep companies in line.

Which is why a push by the U.S. Chamber of Commerce and other business groups—with backing from Senate Majority Leader Mitch McConnell—for widespread liability protection from COVID-19 related litigation is so problematic.

I'm not the only one to have reservations. A new poll of 1,202 voters by the American Association for Justice (formerly the Association of Trial Lawyers of America) found broad bipartisan opposition to legislation that would give guaranteed immunity to companies from lawsuits in cases involving coronavirus infection.

"What the public wants more than anything is to feel safe," said association head Linda Lipsen in a conference call with reporters on Wednesday. "If no one is accountable, no one is safe." 

According to the poll, three in five voters believe that giving corporations and other businesses immunity in coronavirus cases would result in more people getting sick. Only 12% said it would reduce the number of infections.

Moreover, 60% of respondents agreed that companies would take fewer precautions to keep people safe if they knew they could not be sued.

The opposition to immunity cut across party lines, with 72% of Democrats, 64% of independents and 56% of Republicans opposed.

Nonetheless, McConnell in an appearance on Fox News last week said that the Senate is not interested in passing a new COVID-19 relief bill if it doesn't include liability protection.

"Imagine you're a businessman thinking about reopening," he said. "And you've heard that the trial lawyers all over the country are sharpening their pencils, getting ready to sue you, claiming that you didn't engage in proper distancing or other issues related to health and safety."

"Look," he continued, "we can't pass another bill unless we have liability protections."

Lipsen said her group has yet to see the actual legislative language—but recent publications from the U.S. Chamber of Commerce and other business groups provide some hints.

The Chamber flags 11 areas where it is seeking additional liability protection.

Some, like a safe harbor for health privacy issues, seem entirely reasonable.  For example, what if an employer in order to reopen needs to verify an employee's COVID-19 status and/or their vulnerability due to underlying health conditions? Or what if a worker tests positive? Would health privacy laws interfere with contact tracing?

"During the COVID-19 national emergency and recovery period, employers will need a broad safe-harbor to make necessary inquiries regarding health status and to make certain limited disclosures to prevent the spread of the disease," the Chamber argues.

Or take independent contractors. The business group wants to make sure that if employers provide the same type of workplace protections to independent contractors as they do for employees, that doesn't establish a formal employment relationship.

Sure, fine. 

But the wish list quickly gets more ambitious, calling, for example, for protection against medical liability and malpractice claims "arising from care decisions, lack of care due to equipment shortages, as well as mistakes due to long hours or staff shortages."

The Chamber would also like an automatic stay on COVID-19 related securities litigation until after the president's declaration of a public emergency has been rescinded.

Once the stay is lifted—and the emergency is over—the Chamber says defendants should still "have interlocutory appeal rights for the denial of a motion to dismiss and plaintiffs should have to plead with particularity all the elements of their claim in these cases; and all discovery should be stayed until after the motion to dismiss stage of the litigation."

And this furthers public health and helps restart the economy how…? 

For good measure, the Chamber adds that "it is worth considering a cap on damages in COVID-19 related securities lawsuits."

(Are there any circumstances where the Chamber doesn't think it's worth considering a cap on damages?)

The Chamber's biggest concern is exposure liability. "The core component of claims in this category is that a customer/employee/patient/member of the public/etc. was exposed to COVID-19 in a business facility or as the result of a business' particular action, or failure to act, and then that claimant became sick," they say. "The legal theories underlying these claims may range from simple negligence to strict liability to public nuisance."

The Chamber argues that businesses should be given a safe harbor so long as their actions "do not amount to gross negligence, recklessness, or willful misconduct."

But the trial lawyers association counters that the current standard—reasonableness—is a high enough hurdle. 

Plus there's the additional obstacle of causation—how would someone even prove where they got sick? 

Of course, there are some circumstances, such as meat packing plants overrun with cases of COVID-19, where it seems conceivable that an employee could bring a successful claim.

Or could they?

On Tuesday, Hunton Andrews Kurth partners Alexandra Cunningham and Susan Wiltsie won dismissal of a federal lawsuit against Smithfield Foods, which was sued over allegedly unsafe working conditions at its Milan, Missouri, plant.

U.S. District Judge Greg Kays in the Western District of Missouri tossed the case, holding that "OSHA (in coordination with the USDA) … is better positioned" to make determinations regarding compliance with the applicable guidance, and allowing it to do so "will ensure uniform national enforcement." 

The outcome suggests that we don't need new liability protections—the ones we have seem to be working for businesses just fine