When Businesses Reopen, The Lawsuits Begin

see the possible lawsuits coming from? Well, I'm not sure there's going to be a lot of lawsuits, but I think that one could think about employees who go back to work and then find that their workplace has other people who have COVID and then get it themselves and think about suing their employer. That would probably be a

worker's compensation claim. And one could also think about consumers who go to a shop or a restaurant or a movie theater and believe that these places will have taken appropriate cautions only to find you know, coughing all around them and then get COVID and then decide all must have been because somebody there had COVID and suing the shop or a restaurant, a movie theater. If they do sue, what kind of proof would they need for their case to be successful. So a couple of things, I'd say.

First of all, I don't think it's out of the question that businesses are going to be so worried about this that there's going to be a movement for some kind of protective legislation or in various states. So I'm going to assume that, just for the purposes of your question,

that we have no legal change at all. So I actually think if you get sick at work, you know, the vast majority of states, I guess every state, you can bring a workers comp claim, and so I expect that there there will be a number of those if people get sick at work, which presumably some of them will asked to them more straightforward to torch suit. Hey,

your restaurant, your shop gave me COVID. You know, I think that's going to be harder, first because you have to prove that actually the restaurant's shop was negligent and careless, and nobody knows what it really means to take the right level of precautions right now. And second because you'd have to prove that that's where you got it, and uh, if you didn't get it from somebody at home, or you didn't get it from somebody on the subway or who knows where, or that you didn't come into the

store having them the first place. So I do think these are the negligent claims as opposed to the workers comp in particular, would be very difficult. Now would it be a defense if the businesses say I was following the advice of healthcare professionals or government officials, and I opened when they told me to, and I did what they told me to. So the short answer is no,

not right now. So one of the interesting things about negligence law, and the reason why the United States and other common law countries are kind of distinctive in a way, is that it's a very big part of our law that just doing whatever the law said you're supposed to do is not necessarily an adequate defense. So there's a backdrop you have to be reasonable. Just doing what the laws is isn't necessarily okay to sail that would work, right.

So let's say I'm in New York. So we're in New York and I'm just hypothetically, some long drawn outset of teful decisions, the Mayor of New York City, the Governant of New York, so on and so forth set forth the whole series of restrictions and rules for going

back in a company lives up to it. But then, as it turns out, the owner of the company herself has been coughing a lot, but she doesn't think she has any particular reason to know, but basically does nothing about checking herself, and in fact is COVID positive and

runs a little bakery or something. So whatever the set of rules are, you can imagine somebody making some sort of fact based argument that this store just didn't use common sense, and so that guess what it normally works now, I myself, if if I were a legislator being appealed to by some kind of business community, I might try to shift the law in this way and sort of

give businesses more reassurance. If I wanted to protect the businesses and say, actually, we're going to change the law so that if you do stick to our laur cool you are not going to be capable of being sued. I'm not saying I favor that, because I do want everybody to use common sense. But right now, com playing with some particular series of standards is not necessarily going to insulate somebody. And even if it did, you'd still have to prove that they complied. Has that been done

before giving limited immunity to businesses in a crisis? Sure, there's all kinds of situations. You know. Some of them have received a lot of criticisms by legal scholars, and some of them have received a lot of praise. Let me gives you two very prominent examples. The nine eleven Victims Compensation Fund, we principally think of as actually being the way to supply compensation to the family members of

people who are lost in nine eleven. That's true, but there was another side, And the other side was that if the family accepted that the compensation on pay I would, so to speak, then they were barred from bringing a lawsuit against their airlines. And you know, in my opinion, there's a lot of debate about this, but I think

my opinion is very well backed up. In my opinion, one of the motivations for Congress to pass this law was a worry that the airline industry arguably really had be negligently was going to be completely bankrupted by a nine eleven towards litigation unless Congress set up a font So that's one example. Another example is gun manufacturers went to Congress and um pleaded for a shield from a liability.

And this wasn't health based, but they believed that different states lawsuits against the gun manufacturers, we're going to create a huge problem. And they got Congress to shield them from that. And they're all kinds of their child vaccine litigation. There's a variety of different kinds I'm sorry, child vaccine legislation, variety of different kinds of legislation that is put together in times of crisis. So what about insurance. Don't stores

and restaurants and theaters have insurance that would cover them? Well, there are two ways to look at that. The short answers, yes they do. But um, First of all, um, many of these insurance policies are going to have various kinds of limitations or exclusions. And second of all, it also deepens the well of commercial enterprises that could well be appealing to legislators for protection and means the world of insurers are very possibly going to go to legislators that

is in federal level to try to get protection. These personal injury lass would seem like they'd be very hard to win, but that doesn't mean that there won't be a lot of them filed. And in some cases or in most cases, will the lawyers be looking for early settlements instead of going to trial. So that's hard to predict. And you know, I'm hoping that there won't be a lot of people who do get sick and these establishments for workplaces, and that there won't be a lot of litigation.

So with that said, first of all, I just can't predict exactly what's going to happen. I suppose if one saw a workplace with suddenly a huge number of employees or a huge number of customers getting sick, have that sort of picture of the facts might make for a conger case. Um. Second of all, you know, just to

talk about the reality of this. In theory of course, people bringing lawsuits, it's supposed to be driven by, um, the needs of the injured person, not necessarily by strategic decision to see that a certain kind of litigation can be more successful than others. To the degree that things are are driven by the needs of a litigant, We of course usually do have settlements, and early settlements are common too, because litigation can take years and years and years.

To the degree that the initial wave of are hoping to establish the viability of a certain kind of litigation and have a particularly compelling set of facts are litigant, you know, those are the kinds of cases where people will push for very very high settlements and defended will not want to display vulnerability usually and will not take them. So it will depend, as you know, the overwhelming majority of tortures to settle. Thank you so much. That's Benjamin's

a Purskey professor at Fordham Law School. As healthcare workers across the country struggle with the demands of the coronavirus pandemic and the lack of protective gear, New York nurses are suing over a hospital systemic failure to protect them. The New York State Nurses Association is representing more than nurses at Montefiore and Westchester Medical Centers who want a court to order those institutions to protect them. My guest is James Brodney, professor at Fordham Law School. So tell

us about the lawsuits. The lawsuit in federal court, which was filed yesterday, is seeking an injunction ordering the hospital to provide certain what the nurses are arguing is essential protections so that they can do their jobs effectively without serious risks to their health and to the health of the patients they work with. And there are five or six major things that they're asking for that they say

that hospital has not been providing. What would you say is the major thing that they want the hospital to provide? Is there one or two? Well, I would say there are several. I mean, they want protective respirators, which are more than surgical masks. These are things that will actually give them the kind of protection I mean, first of all, they're not things have to be discarded after each youth.

They also need gowns that are fluid resistant, that are impenetrable so that they can continue to wear them or change from them because they're constantly exposed to patients who have COVID, and they want testing on demand, both for COVID itself if they have it, and also for the presence of antibodies so that they and know that they're relatively protected. So aren't they just asking the hospitals in this lawsuit to do what the hospitals are supposed to

be doing. Anyway, Well, yes, to some extent, that's exactly right. I mean, what's difficult about this is that there aren't The lawsuit itself is running. I don't mean to get too technical here, but because this is a union and they have a collective bargaining agreement with the hospital, and in that collective bargaining agreement, one of the articles in the agreement is that the hospital will take the steps that are necessary to assure employee health and safety. And

that's what they're suing to get. In other words, they're trying to get an injunction so that an arbitrator will eventually agree with them that those steps are not being taken. But if they have to wait for an arbitrator, nurses will get sick and die. The point that I'm trying to make here is that it's all about enforcing a collective bargaining agreement, and there aren't statutory requirements that are

sufficient to be able to sue just under them. Now, this is a problem with the affirmative protections that are being provided more generally. I mean, we have an Occupational Safety and Health Administration and it is not doing yet what it should be doing, which is to require certain protective steps. It's making suggestions, it's offering tips and guidance to employers, but it hasn't yet done something, for instance, to require some of the things that are in the

CDC guidelines. So the union said that four WITZ nurses have been hospitalized in New York and at least a hundred fifty have tested positive for the coronavirus. So to an average person hearing about this lawsuit, it sounds like a slam dunk for the nurses. But is it. Well, this is a kind of a specialized area of labor law, UH where you can seek an injunction to aid your

motion to require arbitration. Normally this is a grievance. The grievance would go to arbitration, the arbitrator would review it, and the arbitrator would decide, and the arbitrator's judgment is likely to be final. I mean, the parties have negotiated for arbitration rather than external law in this situation, but it takes a while for arbitrators to rule. And what the nurses are trying to do is to get the federal court to compel these practices pending the result in arbitration.

I mean, they have demonstrated, they think they've demonstrated, and there's good reason to think they have either likely success or a sufficiently serious set of questions, and they obviously are alleging irreparable harm um. But one could imagine that a federal judge might look at this and say, I'm not prepared to say that I shouldn't just let the arbitration process run its course because they're not seeking ultimate relief,

they're seeking preliminary relief. Is this a real effort that will go on past the pandemic or is this an attempt to focus the public and hospitals on the issues here? I mean, I think it will go on past the pandemic because there are going to be a series of questions that may not be limited to nurses in terms of the best way to protect the public and workers.

There are a lot of essential workers who aren't only in healthcare, so that some of these issues are going to resonate in retail stores, for grocery workers, for warehouse workers. Montfiore said in a statement that the union's leadership has chosen to attack a system and the commitment of thousands of their colleagues who have followed the governor's emergency orders and are selflessly doing all they can to fight COVID

nineteen and save lives. The question is what's the obligation and duty for a hospital and the nurses haven't attacked thousands of people who are doing all they can. The nurses are in that population. The question of whether the hospital administration is doing all it can is what the lawsuit is about. Thank you, Jim. That's James Brodney, a professor at Fordham Law School. Thanks for listening to the

Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg Ye