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Lawyers prosecuting COVID-19 claims should keep the law’s potential speedbumps in mind as they drive their cases. This article briefly describes what both sides of the bar should consider—and look for moving forward—when navigating COVID-19 cases in Florida.

Florida recently codified significant protections for individuals, businesses and other organizations facing COVID-19-related lawsuits. That new law, Civil Liability for Damages Relating to COVID-19 (codified at Section 768.38, Florida Statutes), gives lawyers defending COVID-19 claims a hefty litigation toolbox. On the other side, lawyers prosecuting COVID-19 claims should keep the law’s potential speedbumps in mind as they drive their cases. This article briefly describes what both sides of the bar should consider—and look for moving forward—when navigating COVID-19 cases in Florida. 

The Law’s Practical Protections

Section 768.38 creates a series of staged protections concerning “COVID-19-related claims,” broadly defined to include any “civil liability claim” related to COVID-19. Because those protections vary through the life of the case, its helpful to review them accordingly.

The Pleading Stage

At the complaint phase, COVID-19 claims must be pleaded “with particularity,” similar to the more stringent standard governing fraud claims. Complaints alleging a COVID-19 claim must also include a physician’s affidavit attesting that “within a reasonable degree of medical certainty,” the claimed COVID-19-related damages or injuries can be tied to the defendant(s). This latter requirement mirrors pre-suit requirements in Florida medical malpractice cases. If either element is missing—particularly pled claims or a physician’s affidavit—the complaint is subject to dismissal. At the pleading stage, attorneys should also keep the elevated elements of proof and evidentiary standards (see sub-section (c) for more there) in mind, as those might create a motion to dismiss opportunity too. 

Discovery and Beyond

The law contains two more pre-merits stage protections: a COVID-19 plaintiff must prove that a defendant did not make a “good faith effort” to “substantially comply with authoritative or controlling” health standards or guidance and COVID-19 claims are also subject to a one-year statute of limitations. On the former point, the burden of proof rests with plaintiffs; if they fail, the defendant gets a complete defense. So, defense counsel should consider moving to dismiss on “good faith substantial compliance” grounds as soon as practicable. In fact, depending on the facts, that defense is theoretically available on a motion to dismiss.

Summary Judgment and Trial

If a COVID-19 plaintiff clears those early hurdles, her action can continue. But to establish liability, the plaintiff must prove “at least gross negligence,” by “clear and convincing evidence.” Both requirements should make motions for judgment on the pleadings and summary judgment viable vehicles for defense counsel. And, of course, these heightened standards mean plaintiffs must prove more, to a higher degree of certainty, to juries and judges, tilting the trial calculus.

Given these tiered protections, a little planning goes a long way. Lawyers should map out their claims and defenses at the beginning of each COVID-19 case, considering what proofs they need and what defenses are available and when. For instance, defense counsel should chart out:

• Whether an early motion to dismiss on pleading grounds or an inadequate physician’s affidavit is available.
• Whether, when, and how to present a substantial compliance defense.
• Whether the gross negligence or clear and convincing evidence standards support a motion for summary judgment.
  
  

What Lawyers Should Look For

Savvy lawyers should also track how the law develops over the coming months. Four trends are worth monitoring:

• First, look out for constitutional challenges to the new law. Some commentators have already signaled that separation of powers, access to courts, and equal protection challenges are in the pipeline, so stay tuned.
• Track how—and when—courts apply the “good faith substantial compliance” standard. Because the rule doesn’t explain how to measure “good faith” compliance or when a court must make that finding, lawyers have some leeway here. On the “how,” defense lawyers might favor earlier hearings; plaintiff’s counsel could demand discovery on these questions.
• Encourage your clients to stay up to date on how “authoritative or controlling standards” evolve. While the world is slowly opening back up, COVID-19 could linger—potentially permanently. That means the law, it’s protections, and—perhaps most critically—the compliance thresholds do, too. If local, state, or federal guidelines change, businesses should adjust their compliance efforts accordingly or risk losing access to the law’s liability shields.
  
  

Finally, consider what counts as a “COVID-19” claim. While negligence claims are classic candidates, the law likely reaches further. If COVID-19 plays into the litigation at all, the law—and its protections—might apply.

Reprinted with permission from the July 6, 2021, online edition of the Daily Business Review ©2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected].