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.