Will Missouri COVID-19 legislation spark litigation?

The Examiner

The Missouri General Assembly passed a COVID immunity law in the 2021 session. The Senate had passed a bill back in February, but the House of Representatives did not approve the bill until late in the session. It is assumed that Governor Parson will sign the legislation since he considered this bill high priority after he was elected.

Bob Buckley

The law essentially immunizes any individual or entity engaged in business, services, activities or accommodations because they are not liable unless the injured party can prove with clear and convincing evidence that the individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19, and the actual exposure caused personal injury to the plaintiff.

The burden of proof in civil cases is a preponderance of the evidence which means that it is more likely true than not, as opposed to the criminal burden which is beyond a reasonable doubt. The United States Supreme Court stated in a 1984 decision that clear and convincing evidence means that the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable. What that means in the context of this law will be decided by state courts.

The legislation is broad and vague because of its reference to “activities,” which may be a source of challenge to this legislation at some point. Laws that have vague provisions may deny due process of law.

The law further provides that no religious organization shall be liable in any COVID-19 exposure action unless the plaintiff can prove intentional misconduct. Thus, reckless or willful misconduct will not be sufficient on any action against a religious organization.

There is also a rebuttable presumption of an assumption of risk by the injured plaintiff if the individual or entity posts or maintains a sign in a clearly visible location at the entrance to the premises. The sign must state that any individual entering the premises or engaging the services of a business waives all civil liability against the individual or entity for any damages based on inherent risks associated with exposure or potential exposure, except for recklessness or willful misconduct. This provision is misleading because the individual or entity is only liable for recklessness or willful conduct anyway, so the injured person is really not assuming any risk. Religious organizations are not required to post or maintain such a sign.

A health-care provider is not liable in a COVID-19 medical liability action unless the plaintiff can prove recklessness or willful misconduct by the health-care provider and that the personal injury was caused by such recklessness or willful misconduct. An elective procedure that is delayed for good cause shall not be considered recklessness or willful misconduct.

Any COVID-19 medical liability action must be commenced within one year after the date of discovery of the alleged harm unless fraud, intentional concealment or the presence of a foreign body which has no therapeutic or diagnostic effect. The normal period for actions against health-care providers is two years. I am scratching my head to determine how a foreign body that has no therapeutic or diagnostic effect can cause a COVID-19 injury.

Finally, no individual or entity who designs, manufactures, imports, distributes, labels, packages, leases, sells, or donates a covered product, as defined in the act, is liable in a COVID-19 products liability action. "Covered product" is a pandemic or epidemic product, drug, biological product, device or an individual component thereof to combat COVID-19, excluding any vaccine or gene therapy. Thus, there is no protection for vaccines, but vaccine manufacturers are only liable under a national vaccine law called the National Vaccine Injury Compensation law that provides the exclusive means of seeking compensation for vaccine injuries. Thus, its exclusion from the Missouri law does not open the door to claims against vaccine providers.

The law does have a sunset provision in it and automatically expires in four years. I assume the legislators believe COVID-19 will vanish in the next four years. The number of cases diminishes each day with the increase in the number of vaccinated people. However, we have no idea what the future holds insofar as variants are concerned. Last week, the World Health Organization stated that the current vaccines are effective against the four main coronavirus variants. We also don’t know if other variants develop, and whether the vaccines will last or will require annual booster shots.

For the time being, the Missouri legislature has done its best to protect individuals, entities, churches, health-care providers and product manufacturers from civil suits. The COVID-19 immunity legislation is similar to Good Samaritan legislation that protects health-care providers who give aid in emergencies or accidents that occur outside of a health-care settings. I don’t think most people have a problem with Good Samaritan immunity.

This legislation raises all kinds of questions and will undoubtedly be challenged in the courts. There have been lawsuits brought against nursing homes, but I am not aware of a lot of other lawsuits that have been filed. This law goes into effect on Aug. 28, so there may be a run of lawsuits in the next three months. I frankly doubt there will be. I just can’t imagine there is much appeal to a lawsuit arising out of exposure to the coronavirus in the middle of a pandemic. We shall see.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.