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Document: Senate Bill 1

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Legislation that's set for consideration by the Missouri Senate is designed to broaden legal protections for health care providers, manufacturers, and other businesses and organizations during the pandemic — but the bill sponsor said the law would not be intended to keep lawsuits with genuine merit out of court.

Gov. Mike Parson on Nov. 13 called for the special legislative session now underway on a supplemental budget to be expanded to include giving liability protection to health care providers as it relates to their response to a declared state of emergency; product liability protection "for any person who designs, manufactures, labels, sells, distributes or donates products" in response to a declared state of emergency; and premises liability protection for exposure claims related to a declared state of emergency.

"None of these groups should be penalized for their efforts to respond to a declared state of emergency," Parson said. "They must be able to continue operating and serving the public without risk of unnecessary and senseless claims."

The next day, a bill following Parson's call, Senate Bill 1, was introduced to the Senate, filed by state Sen. Ed Emery, R-Lamar.

The special session has since been delayed by COVID-19 infections among at least one senator and a staff member, but as of the day before Thanksgiving, the Senate was scheduled to convene at 4 p.m. Tuesday.

Emery, who is term-limited and may have filed his last bill as a state senator, told the News Tribune the week after the bill was filed that it made sense for him to file it because the Government Reform committee he leads is involved with tort reform.

"This is basically just a carrying forward of the same initiative we had started working on prior to the end of session," he said.

Response to the idea of extending liability protections during the pandemic has been mixed — called for or praised after the fact by business and commerce groups, but disagreeable with the Missouri Association of Trial Attorneys.

Brett Emison, immediate past president of the Missouri Association of Trial Attorneys, said in a statement after Parson's call for legislation: "Our lawmakers should (be) enacting policies to protect the public against spreading the virus; not protecting irresponsible businesses from accountability when they fail to follow recommended guidelines."

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Emery said in response to such criticism, "The one thing we're trying not to do here is keep any citizen out of court," but to identify what constitutes genuine liability.

He noted other states' approaches have been to almost completely bar COVID-19-related liability lawsuits from getting into courts, and that's not what he wants to do.

Emery said a lot of the bill's language is still open to interpretation, and given that vagueness, he couldn't precisely guess what opposition to it might be in lawmakers' debate — though he was trying to find out.

"I don't sit down and write this language myself," but research analysts who are attorneys wrote the language, he said.

Emery's bill would add nondelivery of health care under the umbrella of protections for health care providers in a state of emergency, and limits claims to ones stemming from malicious conduct that intentionally harmed a plaintiff, instead of willful or wanton acts.

He expects those standards would apply to any hospital or nursing home treating a COVID-19 patient — not just health care workers directed by a state government authority.

Nondelivery of care might include "a situation where somebody doesn't deliver (care) inappropriately, but for some reason elects not to deliver," he said.

The portions of the bill that deal with product liability would extend protection to people who make products outside the ordinary course of their business in response to an emergency, or whose products made under ordinary circumstances are instead used in modified ways or differently than their recommended purpose.

In the current emergency, Emery said that could mean protections for anything from ventilators to face masks.

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For example, Ford Motor Company isn't typically known for making ventilators, but it has been, Emery said.

He added it's sometimes best not to try to list every manufactured product that may fall under protections because it's likely something would be left out.

The portions of his bill dealing with premises liability — whether businesses are responsible for dangers on their property — would limit claims to cases where it can proved an owner intentionally harmed a plaintiff or acted with deliberate disregard for their safety.

Asked what intentional harm would look like in a setting such as a restaurant, small shop or another local business during the pandemic, Emery said: "That's going to be open to interpretation," but "there would have to be a pretty clear link" between a restaurant's action and deliberate harm to a customer, for example.

He said that would not include keeping people 4 feet apart instead of 6, when it comes to physical distancing, for example.

Because health authorities' recommendations have changed over time, Emery said, a plaintiff would have to demonstrate intentionality on the part of the person who allegedly harmed them.

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