OTLA Sidebar September 2020

5 • SIDEBAR • September 2020 L egislative advocates for civil justice and victims’ rights staved off efforts to grant immunity to corporations, schools and universities and the medical and long-term care industries through two summertime special sessions of the Oregon legislature. In the June special session, an amendment to grant blanket immunity for pandemic-related torts and injuries failed on a 7-7 tie vote in committee. Senate President Peter Courtney, Senator Ginny Burdick, House Speaker Tina Kotek, Senator Floyd Prozanski and Representative Paul Holvey all worked to block the amendment which would have covered corporations and public entities across the spectrum. All Republicans on the committee and Representative Janelle Bynum (D – Happy Valley) voted for the amendment. The remaining Democrats all voted against it. By the narrowest of margins, we avoided one of the worst blanket immunity bills in the country. In the lead-up to the August special session, we were able to prevent further immunity legislation from being brought forward. This success was due to a strong coalition of civil rights and workers’ rights organizations weighing in against immunity. Oregonians’ right to a jury trial for pandemic related claims has not yet been eroded. Disability Rights Oregon, Oregon AFL-CIO, AARP, Latino Action Network, PCUN, Autism Speaks, and a variety of other workers’ rights and civil rights groups weighed in and slowed the momentum for immunity. We may be continuing this fight in another special session before the February 2021 session, wherein our uphill battles will continue. Hospitals and doctors are seeking immunity from liability for acts that comply with COVID-related guidelines or Executive Orders issued by the state. Senator Floyd Prozanski (D – Eugene) has convened months-long negotiations on this topic, centered on the idea that a defendant could file an affidavit proving they complied with all guidelines, and a plaintiff could respond with an affidavit disputing the defendant’s filing. If a judge felt the disagreement was a subject of Oregonians’ Rights Temporarily Protected from Immunity Attacks in Legislature material fact, the case could proceed. If the judge believed all guidelines were complied with, the case would end at that point. It is important to note the long- term care industry has been excluded from any consideration of immunity. Corporate Oregon is seeking blan- ket immunity from COVID lawsuits unless gross negligence can be proven, with the exception of employment related issues. A legislative committee comprised of Representatives Karin Power and Daniel Bonham and Sena- tors Lynn Findley and Floyd Prozanski has met repeatedly. Corporate lobbyists have proven uninterested in the frame- work of the discussions transpiring with the medical industry. In business settings, causation will be a problem for clients who assert they contracted COVID-19 at a specific retail outlet. To strengthen their coalition, they are trying to drag government and schools into the fray. The business lobby have been unwilling to budge and are demanding blanket liability unless gross negligence is proven. There have been very few COVID-related suits filed in Oregon related to exposure outside of nursing homes and prisons and there have been several wrong- ful termination suits and other suits regarding employment practices. The business lobby has been unable to find an example of a suit they feel is unreasonable and instead continue the ‘what if’ mantra in their ongoing quest for blanket immunity. Schools districts and community IMMUNITY continues on page 6 “By the narrowest of margins, we avoided one of the worst blanket immunity bills in the country.”