As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.

Texas businesses watched the 2021 Texas legislative session closely for the potential pandemic liability relief provided in Senate Bill 6 (SB 6), or the Pandemic Liability Protection Act. With the passage of SB 6, Jackson Walker litigation partner Brad Nitschke discusses the three primary effects of the bill in the areas of pandemic liability exposure, the protections of healthcare providers during a pandemic, and the additional products liability protections for manufacturers and distributors during a pandemic emergency. There are a few caveats to note about the liability test, but the bill overall will make suing Texas businesses for pandemic-related injury or death claims more difficult.

RELATED—IN THE NEWS Can Businesses Get Sued If Someone Contracts COVID-19? In an interview with FOX 26 Houston, Jackson Walker partner Brad Nitschke discusses whether a business can be sued if someone believes they contracted COVID-19 at their establishment. Learn more »

Greg Lambert: Hi, everyone. I’m Greg Lambert, and this is Jackson Walker Fast Takes. Texas businesses watched this year’s Texas legislative session closely with regards to Senate Bill 6 and the potential immunity that this bill has in regards to COVID liability. Now that bill has made its way through the Legislature, and I asked Jackson Walker litigation partner Brad Nitschke to come back onto the show to talk about what the legislation covers as well as some of the exceptions in COVID immunity for businesses.

Brad, welcome back.

Brad Nitschke: Thanks, Greg. Great to be here.

Greg Lambert: So, let’s get started with what SB 6 does cover when it comes to exposure to COVID, and even in regards to future potential pandemics?

Brad Nitschke: Yeah, so SB 6 does three things—assuming the governor signs it. It’s just been passed by the Legislature and now heads to Governor Abbott’s desk. He’s on the time clock to either sign it or send it back. But assuming it becomes law, the bill does three things:

• • Number one, it sets the standard for most claims for liability arising from exposure to COVID and to future pandemic emergencies.
  • The second thing it does is it expands the state-level liability protections for health care providers and others who provide health care during a pandemic emergency, whether COVID or a future one.
  • The third thing it does is it expands state-level products liability protections for people and businesses who are involved in manufacturing and distributing the type of protective supplies that are used during a pandemic emergency.

Greg Lambert: This does set a pretty high bar for a plaintiff. Are there any caveats to the liability test under SB 6?

Brad Nitschke: Yeah, Greg. It does indeed set a high bar for plaintiffs, especially those who are suing under sort of the general provision. In general claims against people and businesses for COVID exposure under SB 6, what a plaintiff has to show in order to prevail here is either that a defendant knowingly failed to warn of or to fix a condition within its control that the defendant knew made it likely the injured person would get exposed to COVID or to a pandemic disease, or, on the other hand, that the defendant knowingly failed to comply with government standards that were meant to limit exposure to that disease. On top of that, a plaintiff has to show that the defendant’s failure was the cause-in-fact of the plaintiff contracting the disease.

Greg Lambert: Brad, what if any caveats do we have here?

Brad Nitschke: A caveat to one of the two tests that a plaintiff has to show the defendant met in order to prevail in a COVID exposure claim under SB 6 has to do with what happens when there are conflicting government standards that apply to a defendant. So, one of the things that we know from back in the early days of COVID is you had multiple levels of government trying to regulate in the same space at the same time. And so, especially in March and April 2020, we saw sometimes conflicting rules coming out of Austin in the governor’s office and local public health authorities, county judges, and mayors around the state.

What the Legislature has tried to do in SB 6 is to give some guidance to defendants on how to resolve those conflicting issues. So, if a plaintiff sues claiming that a defendant knowingly failed to follow government standards, SB 6 provides a caveat for that defendant if the defendant made good faith efforts to substantially comply with one of multiple, conflicting government standards. In other words, if the governor’s executive order said you had to do X, but your county judge said you had to do Y, as long as you made a good faith effort to do X or Y, then SB 6 says you shouldn’t be liable under that prong of the test for a knowing failure to follow government guidance.

Greg Lambert: Brad, what effect if any does SB 6 have on the healthcare industry’s liability when it comes to providing care or treatment during a pandemic-related disaster?

Brad Nitschke: In addition to the general test for liability on a claim related to COVID exposure, SB 6 speaks specifically to claims against healthcare providers that arise out of care or treatment that are given, or a failure to provide care or treatment, that relate to or are impacted by a pandemic disease or a pandemic-related disaster. It’s trying to address the situation where either specific care is given as a result of a pandemic disease, or where a healthcare provider doesn’t give or is unable to give particular care or treatment because of a pandemic disease or a pandemic-related disaster. So, you might think of, for instance, some of the stories that we heard during COVID about hospitals being overrun with COVID patients and running out of certain types of equipment. And so, I think, what SB 6 is attempting to do here is to give some working room to healthcare providers whose options are limited by a pandemic disease or pandemic emergency, if they face claims later on for the care they provided, or the failure to provide care, so long as they weren’t negligent. In the case of one of those claims, if the defendant can show that the pandemic disease was a producing cause of the care or the treatment that’s an issue, or the failure to give care or treatment that’s at issue, then SB 6 says that they’re not liable for injury or death.

Greg Lambert: So, one of the other areas carved out with SB 6 deals with pandemic manufacturing of related products. So what’s covered in that section?

Brad Nitschke: There are already products liability protections under Texas law that applied generally, and, through the federal PREP Act, there are some additional protections that apply to manufacturers and distributors who are providing certain types of products during something like a pandemic. What SB 6 does is it expands that at the state level, and it exempts those who design, manufacture, sell, or donate certain pandemic-related products from claims for personal injury and for death or property damage if they meet certain conditions. For a claim that says a product caused the harm a defective product, for instance, the defendant is not liable unless they had actual knowledge of the defect or acted with actual malice and the product posed an unreasonable risk of substantial harm. In terms of claims that the plaintiff was injured by a failure to warn of a defect in a product, a defendant who falls within the scope of SB 6 is not liable unless they acted with actual malice and the failure to warn itself pose an unreasonable risk of substantial harm to the plaintiff. The third thing that SB 6 does on the products liability front is it says that in a claim for the improper selection, distribution, or use of one of the covered pandemic-related products, a defendant is not liable unless they had actual knowledge of a defect or acted with actual malice, and the product posed an unreasonable risk of substantial harm. So, here what you see SB 6 doing is, sort of, no matter which way you cast your claim as a products liability plaintiff, if it relates to a pandemic-related product, there may be an argument that SB 6 has raised the bar for your claims.

Greg Lambert: Brad, if I’m just a business owner here in Texas, what’s my overall takeaway from the passage of SB 6?

Brad Nitschke: Yeah, it’s a great question, Greg, because SB 6 is a pretty wide-ranging and a fairly complex bill. But the upshot for Texas businesses is that SB 6 will make it harder to sue businesses around Texas for COVID-related injuries or death claims. So, really, it should give some comfort to businesses, especially those who were generally following government standards throughout the pandemic and who were attempting to warn about or fix conditions within their control that they knew could expose others to COVID.

Greg Lambert: Brad Nitschke, thank you very much for coming on and discussing more about the passage of SB 6.

Brad Nitschke: Thanks, Greg.

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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.