Your Right to Sue, Goodnight!

Your Right to Sue, Goodnight!

Oh, the sun shines bright on my old Kentucky home
‘Tis summer, the old folks are gay
Where the corn top’s ripe and the meadow’s in the bloom
While the birds make music all the day

Weep no more, my lady
Oh, weep no more today
We’ll sing one song
For my old Kentucky home
For my old Kentucky home, far away

Well the young folks roll all around the cabin floor
They’re merry, all happy and bright
By-and-by hard times will come a-knocking at my door
Then my old Kentucky home, goodnight

Weep no more, my lady
No, weep no more today
We’ll sing one song
For my old Kentucky home
For my old Kentucky home, far away

Weep no more, my lady
Oh, weep no more today
We’ll sing one song
For my old Kentucky home
For my old Kentucky home, far away
For my old Kentucky home, far away

John Prine, Old Kentucky Home

The term Trojan Horse “comes from the[ ] Greek story of the Trojan War, in which the Greeks give a giant wooden horse to their foes, the Trojans, ostensibly as a peace offering.” After the Trojans brought the horse into the city gates, the Greeks jumped out of the horse’s belly and captured the city of Troy.

On April 27, 2020, Mitch McConnell, Republican Senator from Kentucky, called for immunizing businesses from any liability as they reopen after being closed because of the COVID-19 pandemic. Then, on April 30, he called for expanding liability immunities “for other businesses outside of those engaged in ‘covered countermeasures.’” Senator McConnell has been cool to the Trump Administration’s solutions to the COVID-19 problem for businesses reopening. President Trump stressed payroll and capital gains tax elimination and other tax breaks. McConnell, on the other hand, emphasized liability shields noting: “I think I can safely say for our team here, the Republican Senate Majority, if there is any red line it’s on litigation.”

McConnell’s proposal is to “withhold aid money to state and local governments fighting the COVID-19 pandemic if the package does not include legal giveaways to protect businesses from the justice system.” He suggested that the biggest problem facing businesses reopening is excessive tort liability. Using the COVID-19 epidemic as a pretext to eliminate the right to sue and other legal remedies of ordinary Americans is Mitch McConnell’s version of a Trojan Horse.

A Republican Congressman—Tom Cotton of Arkansas—tweeted that Democrats opposing the liability limitations were “putting ambulance-chasing lawyers ahead of our doctors and nurses in the middle of a pandemic.” Tort reformers and their advocates often cite the McDonald’s “Hot Coffee” case as an example of a frivolous law suit. However, the case was far from frivolous. Stella Liebeck, an elderly woman, was scalded by a cup of hot coffee purchased at a McDonald’s take-out window that was served at a temperature of between 180 and 190 degrees Farehenheit. If coffee spills on human skin at that temperature, it will cause third-degree burns in two to seven seconds. Mrs. Liebeck suffered through painful debridement procedures to remove layers of dead skin and had several skin grafts that required extensive hospitalization and recuperation.

The key assertion made by Senator McConnell and other tort reformers is that businesses are unfairly victimized by consumers who sue for their injuries. A corporate-funded “outrage industry” creates and disseminates tort reform myths to redefine the meaning of tort victim. Under their view, it is not the injured plaintiff who is the victim, but the business that must pay damages. Corporate victimhood is reflected in “headlines such as: ‘Mister Softee Serves Ice Cream, Subpoenas,’ ‘Fire-Walking Nudist, Files Heated Lawsuit,’ ‘Personal Injury Lawyer Says Telephone Directory to Blame for His Lack of Clients’ and ‘Land of the Free—Where Even our Pets Can Join the Lawsuit Lottery.’” As the late poet Allen Ginsberg noted, “whoever controls the media, the images, controls the culture.” My mentor at Suffolk University Law School, Professor Tom Lambert, called tort reformers “tort deformers” for good reason—their long-term goal has always been to cripple consumer protection in the law, including the right to sue, and to punish corporate wrongdoers through punitive damages.

“Victim’s talk” by habitual corporate wrongdoers is a subterfuge to disavow responsibility for defective products, bad medicine, and unsafe practices, and to reallocate the cost of injury to injured consumers and their lawyers. The tort system has historically protected ordinary citizens against the abuse of corporate power. Since the 1960s, the field of products liability has provided consumers with remedies when manufacturers place dangerously defective products in the stream of commerce. Now, “A broad range of businesses, including hotels, restaurants, convenience stores, members of the U.S. Chamber of Commerce and others” are using the COVID-19 crisis to their advatange, “seeking immunity from potential suits related to the [] pandemic.”

The civil justice system in the U.S. has been under an unrelenting attack since the mid-1980s. For decades “business and professional interests have been claiming that American tort law is out of control, imposing unjustified costs on defendants amounting to billions and billions of dollars annually.” Now, Senator McConnell and the corporate wrongdoer lobby have the perfect Trojan Horse—using COVID-19 as a decoy so that they can enact tort reform at the federal level. The avowed purpose of McConnell’s liability shield suggestion for businesses dealing with COVID-19 is to help the economy. However, in my opinion his true purpose is to deliver tort reform at the federal level for corporate wrongdoers, who contribute mightily to the Republican Party. Those interested in protecting the right to sue in the U.S. should say good night to Mitch McConnell’s legislative proposal.

Michael L. Rustad, J.D., Ph.D, LL.M. is the Thomas F. Lambert Jr. Professor of Law at Suffolk University Law School and Co-Director of its Intellectual Property Law Concentration.

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