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Legal Bar Raised for COVID-19 Lawsuits in Tennessee

Author: Dara R. Fairchild

Guest Editors: Jeremy Freedman, Ashley Kaye

October 5, 2020 1:16pm

In a special August session of the Tennessee General Assembly, the legislature enacted bill SB8002, also known as the Tennessee COVID-19 Recovery Act (“The Act”), which among other things limits the liability for any person relating to loss, damage, injury, or death from COVID-19.

The Act, as amended, raises the legal bar for anyone filing suit due to COVID-19 injuries and provides that an individual or legal entity, “will not be liable for loss, damage, injury or death that arises from COVID-19 unless the claimant proves by clear and convincing evidence that the person proximately caused the injury by an act or omission constituting gross negligence or willful misconduct.” 

In order to file a claim for COVID-19 injuries, a Claimant must meet the following pleading requirements:

  • A verified complaint pleading specific facts with particularity, where the trier could reasonably conclude that the injury was caused by the trier’s gross negligence or willful misconduct.
  • Where injury is alleged based on exposure to or contraction of COVID-19, the Act requires a certificate of good faith to be filed, confirming a signed, written medical opinion has been obtained.

Failure to comply with the foregoing, will subject the claim to dismissal with prejudice.

The Act specifically provides that it does not: “(1) Create a cause of action; (2) Eliminate a requirement of any existing causes of action; (3) Affect workers’ compensation claims; or (4) Amend, repeal, alter, or affect any immunity or limitation of liability available under current law or contract.”  There are additional limitations with respect to Governmental Tort Liability, as well as limitations on public post-secondary institutions’ liability for an injury arising from COVID-19.

Proponents of The Act argued it is necessary to prevent frivolous lawsuits.  Those who opposed The Act contend a Claimant will never be able to meet the heightened bar of clear and convincing evidence or the pleading requirements to demonstrate that gross negligence led to their illness.

In spite of the foregoing concerns, The Act became effective on August 17, 2020, after passing through the Senate and being signed by Governor Bill Lee.  The Act has been assigned Public Chapter Number 1 by the Tennessee Secretary of State.

The Act does not have a retroactive element and instead provides that it applies to all claims arising from COVID-19, except those filed or given written notice prior to suit on or before August 3, 2020.  It will be repealed on July 1, 2022.

Takeaway

When evaluating a potential COVID claim, it is imperative to evaluate whether the claimant or plaintiff has satisfied the heightened pleading standard.  Moreover, there may be an opportunity to attack the certificate of good faith with regards to the medical opinion supporting the claim.  Attacking causation and the facts upon which the medical opinion is based may provide strategic opportunities to attack the pleadings.

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