Author Archive

Senator Cornyn Introduces COVID Liability Protection Legislation

By George Christian, General Counsel, Texas Civil Justice League 

Senator John Cornyn (R-Texas) has introduced legislation to shield businesses, health care providers, schools, non-profit organizations, and other entities from liability for personal injury claims allegedly caused by exposure to the novel coronavirus. The Act applies to injuries from alleged exposure occurring between December 1, 2019, and the later of the end of the declared emergency or October 1, 2024. Claimants have one year to file suit from the date of the alleged exposure. The Act applies to pending claims.

The SAFE Act creates a safe harbor for entities that make reasonable efforts to comply with mandatory public health guidelines or, if no mandatory guidelines are in effect, with at least one set of voluntary guidelines. If multiple guidelines apply to the entity, compliance with any one of them will satisfy the safe harbor requirement. An entity loses the protection of the safe harbor if it does not take reasonable steps to comply with guidelines, and the entity’s gross negligence or willful misconduct causes the claimant’s injury. The Act contains similar protections for health care providers, employers for employment related exposure, and product manufacturers. The SAFE Act pre-empts state law to the extent the state does not have more stringent liability protections, so it acts as a floor rather than a ceiling.

TCJL applauds Senator Cornyn for his hard work on this legislation and will work with its members to secure its passage, presumably as part of a larger coronavirus relief bill under consideration in Congress.

Read the bill here: https://tcjl.com/senator-cornyn-introduces-covid-liability-protection-legislation/

Bexar County civil court will be the pilot for virtual jury trials

Our “new normal” is bringing many changes, but one thing hasn’t changed: the importance that jury participation plays in our judicial system. In August, Bexar County will serve as the test case for holding virtual jury trials in Texas. Officials with the 57th Civil District Court, along with the Texas Supreme Court and Texas Office of Court Administration, have been brainstorming on how to conduct virtual court proceedings via Zoom since jury duty was suspended in March.

While jury summons and service processes will certainly look different, many aspects will remain the same. When a resident receives a summons, they must answer a questionnaire the helps lawyers and the court in seating a virtual jury panel. The same exemptions (such as age, student status, active duty military) will apply. However, a summons will also include information on how to use Zoom and access WiFi and electronic devices if needed.

While this transition won’t happen without technical difficulties, many are optimistic that virtual jury trails could bring much-needed progress to the justice system.

Read more: https://www.expressnews.com/news/local/article/In-a-first-Bexar-County-will-attempt-to-seat-a-15429966.php

When it comes to legal reform, good judges matter

Texas, which once had the biggest lawsuit abuse problem in the country, is now a leader in the lawsuit reform movement.

The changes made have helped:

To protect these reforms, it’s critical that we elect judges who will impartially apply the law as written. The decisions of one activist judge can threaten positive legislative advances that have taken years to enact.

Equally important, we must elect judges who are competent, with years of meaningful experience. Experienced judges make our justice system more efficient, reducing litigation costs and ensuring the law will be applied fairly and even-handedly.

Having judges who will advance a straightforward reading of our laws is vital. Make sure to learn about your judicial candidates before voting on July 14.

Early voting starts on June 29, 2020 and ends July 10, 2020.

Election Day is July 14, 2020.

For more voting information on the upcoming runoff elections, visit VoteTexas.gov.

Juror Walks Off to Take Phone Call as Texas Tests First Jury Trial Via Zoom

Our “new normal” hasn’t come without growing pains even in the court system, but one thing hasn’t changed: the importance of answering the call when summoned for jury duty. #GetServedGoServe https://www.law.com/texaslawyer/2020/05/18/juror-walks-off-to-take-phone-call-as-texas-tests-first-jury-trial-via-zoom/ 

Governor Abbott, Lt. Governor Patrick, Speaker Bonnen Send Letter To Congressional Leaders Urging Support For Employer Liability Protections

May 12, 2020 | Austin, Texas |Office of the Governor

Governor Greg Abbott, Lieutenant Governor Dan Patrick, and House Speaker Dennis Bonnen today sent a letter to Congressional Leaders asking them to support liability protections for Texas employers. In the letter, the three state leaders urge Congress to support the inclusion of legal protections in the next phase of federal coronavirus relief legislation that would protect business owners, healthcare facilities and employees, and first responders from being held liable for COVID-19 exposure claims when they adhere to relevant public health guidelines and make good faith efforts to limit the risk of exposure and infection.

“Facing record unemployment and an unprecedented financial crisis, we must take immediate and swift action to protect our state’s job creators and our healthcare industry from crippling litigation that would certainly delay the full recovery of our economy,” reads the letter. “Federal action is the swiftest course to provide liability protections, and we ask for your leadership and support for such measures in the next phase of COVID-19 recovery legislation. Because many Texas businesses and healthcare providers operate in multiple states or have multi-state supply chains, the United States Congress is uniquely positioned to deliver the appropriate nation-wide solution.”

View the letter from Governor Abbott. Lt. Governor Patrick, and Speaker Bonnen.

Personal Injury Lawyers Continue to “Cash In” Thanks to Class-Action Lawsuits

A recently published white paper, An Empirical Analysis of Federal Consumer Fraud Class Action Settlements, on class-action settlements by the Jones Day law firm confirms what we have known for a while: some of these lawsuits deliver big jackpots for some personal injury lawyers, often at the expense of consumers.  The study’s main findings:

For far too long, many class action lawsuits have been abused at the expense of consumers.  In some cases, consumers are “awarded” coupons, while personal injury lawyers “cash in” in the name of consumer rights. Worst of all, the litigation costs are then passed on to consumers through increased prices, fewer innovations, and lower product quality.

Class action lawsuits were intended to speed the handling of multiple cases by allowing individuals with the same grievance to file a single claim.  They were supposed to be the consumer’s best shot at justice.  Any system that pays millions of dollars to personal injury lawyers for drumming up lawsuits, but leaves complainants with measly coupons, is in dire need of reform.

While Texas lawmakers already have enacted class-action reform, the need for other states and the federal government to follow our lead is clear.  Others should take their cue from the Texas Legislature and pass real and lasting reform so that class action lawsuits can serve their intended purpose: to deliver justice for consumers who have been wronged, not serve as a course for jackpots by some personal injury lawyers. 

Read the full study here: https://www.jonesday.com/en/insights/2020/04/empirical-analysis-consumer-fraud-class-action

Anticipating the COVID-19 Lawsuit Storm

While health care professionals and other essential workers fight the COVID-19 pandemic from the front lines, they should not be worried about being sued for good-faith efforts they make in an attempt to save a life.  However, some personal injury lawyers see the current crisis as an opportunity to cash in.  The first lawsuits targeting health care providers, employers, retailers and other businesses for COVID-related injuries have already been filed.

Congress has provided limited liability protection for volunteer health care workers through the CARES Act, for manufacturers of N-95 masks through the Families First Coronavirus Response Act, and for some health care workers through the PREP Act.  Despite these protections, legislative efforts may be needed at the state level – including in Texas when the Legislature returns to the Capitol in January 2021.

The American Tort Reform Association has published a white paper exploring legal liability concerns related to the COVID-19 pandemic with potential policy solutions for states to consider. The main policy prescriptions include legislation:

Read the full white paper here.

Guest Blog: Avoiding the Post-Pandemic Lawsuit Wave

By D’Anne Buquet

As the Coastal Bend hunkers down to combat COVID-19, this community is experiencing quite a few positive effects. More than ever, people are making a conscious effort to support local businesses that remain open. Businesses are adapting to meet their customers’ needs with new innovative practices such as contact-free, ultra-sanitized shopping experiences. Our local grocery stores and all their hardworking employees are working tirelessly to stock shelves and clean surfaces. And healthcare providers are at the frontline, caring for thousands of community members who could potentially be carrying one of the most infectious and dangerous viruses of our time.

Just scrolling through social media, you’ll see a surge of uplifting messages with #supportlocal posted by citizens showing their appreciation and support for those working every day to make sure the rest of us get through this crisis.

But once we begin to come out of this, should we expect a tidal wave of lawsuits? Lawsuits targeting those local businesses who did all that they could to provide their customers with services and products when they needed them most? Lawsuits targeting doctors, nurses and hospitals who risked their lives to care for infected patients and all other medical needs?

Unprecedented, the COVID-19 pandemic gives trial lawyers the opportunity to create new and novel theories to target businesses, healthcare providers, and individuals. Whether accusing a doctor of a late diagnosis or charging a local restaurant with negligence, there are numerous scenarios for a greedy lawyer to take advantage of a public health crisis.

The next McDonald’s “hot coffee” lawsuit may be coming. We must be on watch and encourage each other to remember how the community came together during the crisis. We must remember how businesses are going the extra mile to provide a safe and healthy environment in a never-before-seen, unpredictable environment. Doctors and nurses are working longer hours with fewer supplies but continue to deliver the best care they could in the situation.

As lawyers will challenge laws, we must work equally as hard to preserve the tort reforms we’ve made to protect our local businesses, healthcare providers, and individuals. These reforms have helped the Coastal Bend thrive with new local businesses and the jobs they create as well as access to affordable healthcare.

This pandemic is hurting us enough. Let’s not continue with more hurt by filing abusive lawsuits against the very community members who got us through it.

D’Anne Buquet is the Executive Director of Bay Area Citizens Against Lawsuit Abuse, a grassroots watchdog organization made up of citizens dedicated to raising awareness of the costs and effects of lawsuit abuse. www.bacala.net

Texans for Lawsuit Reform: Protecting Our Frontlines

World Health Day was last week, on April 7, and there couldn’t be a more appropriate time to recognize the work and sacrifices of the healthcare profession across the globe.

In the past few weeks, we’ve seen these men and women run toward danger, working around the clock and putting their own lives on the line to help those affected by COVID-19.

In Texas, Gov. Greg Abbott has created a task force to help ensure these professionals have the personal protection equipment they need and that their hospitals have the resources necessary to respond to a surge in coronavirus patients. The governor has also issued orders easing licensing requirements for healthcare workers to ensure Texas has the medical workforce it needs in the coming weeks.

But there’s an additional layer of protection that we should grant to the men and women on the frontlines of this pandemic: liability protection.

TLR recently joined with the Texas Alliance for Patient Access, Texas Medical Association, Texas Hospital Association and others to request that Gov. Abbott issue an executive order providing liability protection during the declared disaster for physicians and other healthcare providers.

“These healthcare professionals are literally risking their lives to care for Texans suffering from a lethal virus. At the same time, plaintiff attorneys are already advertising for clients to file lawsuits related to the healthcare industry’s response to the virus. The citizens of Texas cannot reasonably expect healthcare professionals to work under the threat of both death and litigation. Under these circumstances, it would be entirely reasonable for healthcare workers to ignore—rather than answer—the call to service, leaving Texans without necessary care during a time of crisis.”

With these extraordinary circumstances, and with all that we are asking of our medical professionals, it is critical we assure these individuals they will not face a lawsuit unless their conduct was reckless or they engaged in intentional, wanton or willful misconduct.

Additionally, given the fluidness of this situation, we also believe COVID-19-related healthcare lawsuits should be postponed until after the crisis to allow the industry to continue providing the critical care Texans need right now.

Healthcare professionals are going above and beyond the call of duty to help their fellow Texans in the face of this pandemic. It is the least we can do to protect them from the added stress of an unnecessary lawsuit at this time.

Read here: https://www.tortreform.com/for-the-record/protecting-our-frontlines/_term=READ%20MORE

Buckingham: Bill required transparency of medication ads

Via the Killeen Daily Herald, March 19, 2020

By DAWN BUCKINGHAM | STATE SENATOR, DISTRICT 24

Hello friends, as your state senator for District 24 I’d like to share a few thoughts about the importance of Sunshine Week, and government transparency. Perhaps at no time in history, in my opinion, has the need for openness and transparency been more important.

Today’s headlines are filled with claims of “fake news” and “bias” in our news media, leaving all of us to wonder what information we read, hear or see on television is real and what’s not. I believe that uncertainty is a large part of the reason more and more people are distrustful of government, its leaders and the news media, and choose to “tune out” rather than “tune in,” and “get involved.”

In my opinion, this is neither helpful nor healthy. I believe an uninformed electorate is dangerous for the values we believe in as proud Texans and Americans. Protecting open records, open meetings and public notices is something we must all support along with the constitutional protections of a free and open press.

During the 86th legislative session, I took the lead to try and make sure some of the TV advertisements you are bombarded with at home regarding the safety of some of the medications you may be taking are not “deceptively” portrayed as dangerous by some legal advertisements.

Senate Bill 1189, which I authored, will significantly stop this fraudulent practice by requiring transparency and accountability for these attorney-paid ads. This legislation requires these types of advertisements to properly warn patients it is dangerous to stop taking certain prescribed medications before consulting with your doctor.

The “teeth” in the bill provides civil penalties on those who intentionally market these dangerous and deceptive ads. It is simply wrong to allow deceptive advertising that might unnecessarily scare people to the point of stopping taking certain necessary medications.

A survey conducted by Texans Against Lawsuit Abuse reported 82 percent of doctors surveyed found that such ads could lead patients to stop taking their prescribed medications and 66 percent of their patients questioned their recommended course of treatment because of something they saw on TV, in a deceptive lawsuit ad.

The premise is simple: require common-sense disclaimers to be included in advertising to make sure Texans are not harmed, or misled, by harmful and deceptive advertising. And, it was greatly needed. According to a report by the American Tort Reform Association, TV viewers were subjected to more than 190,000 advertisements for legal services over six months in 2018, in Texas’ three largest media markets.

As an oculoplastic and reconstructive surgeon, I know how dangerous abruptly ending certain prescribed medications without doctor approval can be. As a mother of two, I also know how effectively deceptive some of these advertisements can appear. And, as a state senator who has heard the cries from patients in Senate District 24 for help, I knew the time for action was overdue.

I’m very proud to report that a majority of my colleagues in both the House and Senate agreed and voted to send SB 1189 to Gov. Gregg Abbott. On June 7, 2019, this improvement in government transparency became a state law in Texas.