HB 2912: “Tort Reform” on Steroids Will Not Help Arizona’s Economy Recover from COVID-19

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In my previous post on HB 2912 I addressed the grave threat to public health enforcement this bill contains. Please read it, if you have not yet. That aspect of the bill is even more damaging to Arizonans in this time of health crisis than the aspect I discuss here.

In the medium and long term, this bill’s efforts toward “tort reform” concerning the COVID-19 epidemic will be very damaging to Arizona’s workers and consumers for a long time to come.

I will tell you upfront that I am a “tort reform” skeptic. Given that those who advocate for such “reforms” so-often represent the wealthiest and most powerful in our society, everyone should be skeptical of their claims, in my view.

The push over the past few decades to limit access to the courts by the injured has not resulted in greater systemic efficiency, nor in the societal savings, advocates have promised. The most rigorous and objective examinations of the results of “tort reform” have clearly demonstrated that the whole effort has primarily resulted in far fewer injured parties actually seeking compensation in the courts, less accountability for those who negligently harm the public, inadequate compensation for real, often life-long, injuries, and fewer incentives to prevent harm to the public in the first place by those best-placed to do so.

As a career trial attorney, I can tell you without hesitation that the idea that “frivolous lawsuits” are “clogging up” our system, let alone making it through our system and resulting in unjust enrichment of unworthy plaintiffs is patently absurd.

There is no group of people in our society more experienced in detecting bullshit than our nation’s judges. Judges are the people who we should rely on to filter out unmeritorious suits – not corporate lobbyists with sharpies seeking to fiddle our rules of civil procedure into a shape more suited to their clients.

As bad as “tort reform” has been for providing justice for negligent harms, it also failed to correct the many problems with our for-profit medical system which advocates promised. The problem has frequently turned out to lie in the underlying financial structure of our for-profit system, not our courts’ attempts to redress injustice and negligence.

Despite the failures of “reform” (or its total success, if looked at from a corporate defense viewpoint), “tort reform” advocates have generally been content with capping non-economic damages (like pain and suffering, and the wrenching loss of loved ones) and punitive damages (which punish wrong-doers for intentionally anti-social behavior), and reducing statutory limits within which to file cases.

Never have I seen “tort reformers” try to reach into the heart of our civil procedure laws to change the very evidentiary and pleading standards by which cases are required to be decided by our court system. That is exactly what HB 2912, now pending before the AZ Senate, seeks to do.

“Section 2.A. An [entity] in this state during… the COVID-19 outbreak… is not liable to a person who contracts COVID-19… including after entering and remaining on the premises of the [enitity], if the action is based on strict liability, premises liability or negligence unless the [entity] acted with gross negligence.” [emphases, ellipses, and summaries added – MB]

Already, showing the causative link between a person becoming ill and the actions of a defendant would be quite difficult to demonstrate to a court under current law. We should be lowering the evidentiary burdens for many types of COVID-19 related claims (BlogForArizona exclusive content), not raising it.

HB 2912’s change makes the pleading standard to bring a case before a court for evaluation much, much more difficult. A plaintiff would have to allege that the defendant acted with gross negligence (requiring the plaintiff to show conscious and voluntary disregard for risk by the defendant), even in a strict liability case!

This is legally absurd: the very reason for strict liability is precisely to NOT require a plaintiff to demonstrate that a defendant acted with negligence because the activities they were engaged in were already inherently dangerous. This bill is not just unwise, it is legally illiterate.

This bill seeks to hastily overturn decades, if not centuries, of accumulated wisdom and precedent regarding how cases should be evaluated by judges and juries. Radical surgery on the very core of our system of justice in response to a temporary emergency is neither prudent nor warranted.

In its audacious grab for legislative power over our judicial system, HB 2912 is likely to be held unconstitutional, but only months or years in the court system would be able to determine that. I’ll tell what can be determined immediately: it’s deeply unfair to Arizona’s citizens and deeply unwise.

But HB 2912 doesn’t stop there. It seeks to reach into all disputes stemming from infection by COVID-19 and overturn the commonly used evidentiary standard in civil cases: preponderance of the evidence. In a civil case, preponderance is the common and proper standard of evidence for a judge or jury to decide which side wins. HB 2912 makes an exception for any case involving contracting COVID-19:

“B. The burden of proof in a civil action that is based on the plaintiff contracting COVID-19 and that is filed pursuant to subsection A of this section is clear and convincing evidence.

C. This section applies to all causes of action that accrue before, on or after the effective date of this section.”

“Clear and convincing” is the same evidentiary standard used to take away a person’s children! Or to take you off of life support!

The “clear and convincing” standard requires far more than the preponderance of evidence for a claim to succeed. In the real world, such levels of proof are not easy to come by, which is why this standard is used primarily in such irreversibly consequential and permanently life-altering decisions.

The effect of this change is to essentially make it nearly impossible to bring any claim that another’s negligence caused you to contract COVID-19. People who are trying to help you medically are already excluded from most liability by our current laws.

So just who is this supposed to help?

You would have to prove that the defendant acted with gross negligence to a clear and convincing evidentiary standard to get your case into a court. A judge or jury’s hands would be tied to do any justice in all but the most egregious, clear-cut, and grossly negligent cases.

This, again, is likely an unpermissible and unconstitutional burden for the State Legislature to place on the “right of action to recover damages for injuries” under the Arizona Constitution. But it is always a long, costly process to prove that, and meanwhile legitimate and meritorious claims would be blocked from the courts.

And that is exactly the intent of the drafters of this bill. They do not want to filter out “nuisance cases” or “unmeritorious claims”; they want to block EVERY claim based on contracting COVID-19 due to someone else’s negligent behavior.

Don’t let them: Stop HB 2912.

 

5 COMMENTS

  1. This mindset makes me so sad but it’s now out in the open for all to see. They simply do not care.

  2. I found this email exchange between Arizona House Member Mark Finchem and one of his constituents very enlightening as to the attitude of the GOP on this bill. Perhaps you will find it interesting and enlightening, as well… (the email was forwarded to BlogForArizona by the constitutent):

    CONSTITUENT TO FINCHEM:

    “LD11 State Senator Leach, Representatives Finchem and Roberts

    I’m writing in hopes of getting clarification regarding your position on HB2912. This bill obviously abridges and abrogates the rights of AZ citizens to sue businesses who are negligent in protecting the safety and health of workers and/or customers. My confusion arises over your previously unambiguous position defending the 2nd Amendment of the U.S. Constitution, while disregarding litigants’ rights codified in the Arizona Constitution.

    I know you believe Americans’ Constitutional rights to own and publicly carry assault weapons “shall not be abridged”. Why do you not support “shall never be abrogated” as wording that that protects the Constitutional right to sue?

    Additionally, since HB2912 protects employers, why was there no accompanying legislation introduced to protect workers and customers? Why was there no HB setting sanitation and COVID testing standards to be met prior to reopening a business? Should workers and customers not be protected to the same extent? HB2912 decidedly places the burden for staying safe and healthy upon workers and customers alone.

    Until I get a detailed response from you that is both constitutionally and legally sound, I’m left to my own opinions. I believe there are two main reasons for your apparent lack of consistent constitutional approach. 1. You are beholden to a donor class that puts the interests of business and wealth accumulation ahead of the general public and employees. 2. You personally consider everyday citizens, who show up at work and punch a clock for predominantly low hourly wages, to be expendable and of less value than business owners and investors.

    Please respond as soon as possible.”

    FINCHEM TO HIS CONSTITUENT:

    “Ralph, you conclusions are absurd and devoid of intellectual honesty. But, at least you are consistent. The amendment in JN2912 did one thing, Installed balance between gross negligence and personal responsibility. I understand that the donor class, aka trial lawyers association, which gives hundreds of millions in campaign contributions to Democrat candidates is upset, after all 90% of their contributions go to Democrats, but that notwithstanding, nobody is forcing anyone to work anywhere. We all have a choice in employment and patronage. In fact, I urge people who are fearful of a particular venue to stay home where they can be safe in their own definition of safety. But for those like me who want to venture out and experience life, we must all accept some level of personal responsibility. Utopia does not exist.

    Rep. Mark Finchem, LD-11
    (520) 808-7340
    Sent from my iPhone”

    Such condescention and arrogance! Perhaps BlogForArizona readers would like to give Member Finchem a call at his personal cell phone number and let him know how they feel about his attack on our Constitutional rights?

    • Finchem does not address these legitimate questions:

      “why was there no accompanying legislation introduced to protect workers and customers? Why was there no HB setting sanitation and COVID testing standards to be met prior to reopening a business? Should workers and customers not be protected to the same extent? HB2912 decidedly places the burden for staying safe and healthy upon workers and customers alone.”

      And the reason he won’t address them like a grown man and do his job is because his is protecting his donors with this legislation.

      He’s protecting his donors over his voters.

      • “He’s protecting his donors over his voters”. Yet another fatal symptom of allowing the infusion of big (read HUGE) money in politics. At the least we really need three short constitutional amendments.

        !. Money is not speech

        Corporations are not natural persons and do not enjoy the constitutional rights of natural persons.
        The United States is governed by the Rule of Law, not the Rule of Man

  3. As someone said – if it’s safe to go back to work, why do we need a law protecting businesses from lawsuits about COVID? They know it’s not safe. They know the harm will be felt by the workers. They know the cost both emotional and physical will be paid by workers. They don’t care. They are all about protecting the donor class not their constituents. Get busy and support Kurland who is running against Kavanagh who introduced this horror. We cannot change them. We can only throw them out.

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