Ray Tarasuck:
Good afternoon. My name is Ray Tarasuck. I am senior counsel with Calfee, Halter & Griswold's government affairs group. I'd like to introduce my colleagues, Mike VanBuren, a partner in Calfee's health care group and Matt Mendoza, a partner in Calfee's litigation group. Together we would like to welcome our special guest, Ohio Senator and Chair of the Ohio State Senate Judiciary Committee, Senator John Eklund. Senator, welcome.
Senator John Eklund:
How do you do? Good to see you guys.
Ray Tarasuck:
Now, as you're well aware, the topic for our discussion today is COVID-19 and the immunity legislation that is currently before both the House and the Senate. I think we'd like to start, Senator, with this question. Why is there the need for this particular type of legislation?
Senator John Eklund:
It's a great question, Ray, and I could understand some people suggesting that perhaps there is no need for it, but from my perspective, all I can tell you is there is something different about this pandemic. It is not the first one that we've had. In 1958, '59, 1968, '69, '70, were worldwide pandemics that killed hundreds of thousands of Americans and we never saw anything like the governmental response that we've seen this time around. Frankly, the social media and the media coverage has been far and away beyond anything that happened back in those previous pandemic situations. So I think the business community, largely because of the government's scope of the governmental reaction and the scope and detail of the coverage that's been provided, gives business people a bit of pause and rightfully so, that if this is somehow different, that the reaction to it among Ohioans, in terms of lawsuits and liabilities, could very well be different from what it used to be as well.
Senator John Eklund:
So I think there is that driving concern that this is somehow different and while we want to immunize certain conduct in certain individuals, we need to do it specifically in a statute because this is such a unique situation. Frankly, the situation is such that among business people I've spoken to, whether or not the lawsuits would come, the fear of them or the anticipation of them has been sufficient for a lot of business people to say, "Well, okay, maybe I'll open, but maybe we won't open quite so robustly or so aggressively as we otherwise might." Consequently, I think that has a way of potentially slowing down the recovery that I know is going to come here in Ohio.
Ray Tarasuck:
Matt, I see you shaking your head. Now from the business community's perspective and general litigation, would you agree with that?
Matt Mendoza:
Oh, absolutely. The one thing we know is that there's been a lot of unknowns and there continues to be a lot of unknowns about COVID. As our knowledge and experience have evolved, we've seen government orders and recommendations from government agencies change and evolve over time, so that creates uncertainty for all of us and businesses. At the same time, there have been lawsuits filed in Ohio and outside of Ohio and there's certainly, as the Senator said, a fear of additional lawsuits coming.
Matt Mendoza:
So when you look at that climate of uncertainty, that some businesses are being asked to operate and have been continuing to operate during this crisis and the economy needs businesses to open. So I think a bill like this, it's called an immunity bill or we're referring to it as that, but that's a little bit of a misnomer, I think. It's a little over simplistic because what I think it really would do is give businesses some guidance and some certainty about what legal standards are going to apply and what their risks are of claims.
Ray Tarasuck:
Yes. So both House Bill 606 and Senate Bill 308 not only affect and have implications for the business community, but also for the healthcare community as well. So Mike, from your perspective, what are your thoughts on the need for this type of bill for the healthcare community as well?
Michael VanBuren:
I'll go with the sadder side and what Matt said as well. The healthcare provider community knows better than anyone else the risks involved with COVID and with treating patients in a particularly complicated set of circumstances and they have their arms around it as well as anyone can. At the same time, the community is just looking for some predictability as they figure out how do they ramp operations back up? At what point are they back at full capacity with elective procedures?
Michael VanBuren:
You're not just dealing with your general acute care hospital settings. You've also got surgery centers, private practices, you've got the whole scope of not only acuity, but what types of providers trying to figure out how to operate in this environment. So it gives some predictability to, "Okay, from a risk management standpoint, what are we really looking at here and what's our exposure based on what we decide to do is we reopen or maybe do we not reopen at 100% yet and what does the fallout look like?" So to Matt's point, it really is just about predictability more than that, at least on the healthcare side.
Ray Tarasuck:
Now we've been following both Senate Bill 308 and House Bill 606 and Senator, there are a lot of similarities between both of these bills and there are a number of differences as well. But let's start with the similarities between the bills, because at the end of the day, when something is finally passed and something finally gets to the governor's desk, there are going to be, I think, predictably, some things that are just going to be in there that we know are going to be in there because of those similarities. So could you touch on some of those similarities for us and what we could at least expect to find in a piece of legislation going forward?
Senator John Eklund:
Well, Ray, I have to talk to you somewhat in generalities in response to that because as you know, and anybody who's been in the legislative trenches knows, things change right up until the end and for reasons that sometimes are difficult to understand, much less discern. So I want to talk a little broadly about what could we reasonably expect once we pass something? I think plainly, a purposeful expansion of immunity for healthcare workers broadly writ who are rendering services in the course of a declared disaster or a declared emergency, that's part one. Secondly, there will be some form of general immunity for other people outside of the context of the healthcare world, which will be focused largely at employers and their employees, their owners, their agents, et cetera, et cetera and that's going to be a very broadly applied immunity. The question is going to be, "How broad will the immunity itself be?" If you catch my difference there, right?
Senator John Eklund:
We can talk a little bit about that because I think the House and the Senate differ a little bit in that respect. There is going to be, almost assuredly, a generalized statement that that government rules, government guidance, government orders, such as akin to what we have seen over the last eight or nine weeks, will be declared not to establish a duty of care, nor be admissible for purposes of proving a breach of a duty of care. I think that covers an awful lot of turf, if you know what I mean, because that applies in all walks of life, just as those orders applied in all walks of life. I think it's important that the legislature make that declaration clear. I would say that, as a general proposition, how they're likely to be similar based on my sense of what's going on in the General Assembly at this point and where we are in the process.
Matt Mendoza:
Hey, Senator, Matt Mendoza here. I'd like to ask you a follow-up question about the similarities between the two bills. For the audience, we're talking about the bills and the bills are House Bill 606 and Senate Bill 308. You mentioned that part of the bill, Senator, is going to be a broad and general immunity. As I understand that is a general immunity for claims that allegedly causing somebody to be exposed to at least COVID-19, maybe some other viruses as well. Is that a blanket immunity such that there could never be a claim or a lawsuit for causing somebody to be exposed to COVID?
Senator John Eklund:
The answer, of course, is no. The bill defines, particularly, the nature of the conduct that gives rise to immunity and also contains language defining when immunity does not apply. So under both bills, generally reckless conduct, reckless disregard for others is generally not going to be immunized under the bill. Willful or wanton conduct would not be immunized under the bills, nor would intentional conduct. So number one, as you guys would know, when you're dealing with a lawsuit and trying to decide whether some behavior is reckless or what's the difference between reckless and negligent, that's the stuff sometimes out of which lawsuits are made. I also would point out that both bills have, essentially, at least on the general immunity, an edited date and so the immunity applies only to conduct that occurred from March 9th of 2020, the date of the governor's declaration order, until some time in the future.
Senator John Eklund:
In the case of the House, December 31st, 2020; in the case of the Senate, April 1st, 2021. So there's going to be a lot of potential points for litigation first on the question of whether or not the immunity applies and secondly, on what the liability is, how the evidence is assessed against the standards that are set forth in the bill. I have to tell you, for those who would like to say, "We want certainty. We want certainty," it is not easy to write something that attends to all of the interests of so many interested parties and to give it that that kind of Draconian clarity that maybe we all might like, but at the same time, in our system of justice, I believe, the pursuit of that level of perfection and precision oftentimes means nothing gets done. This is not a time where I think we can afford to do nothing.
Matt Mendoza:
Senator, just a real quick follow-up, you mentioned that there are exceptions to the general immunity in both bills for reckless conduct, intentional conduct, willful wanton conduct. Are those terms defined in the bills and do you think that by including those terms, the bills are effectively creating a legal standard of care, which if violated, could lead to legal liability?
Senator John Eklund:
I would say, in a sense, yes. Number one, yes, they're defined in the statute. Number two, they're in the statute intended to identify the circumstances in which the immunity applies or it doesn't. Whether that would carry forward from there in a courtroom to defining the duty of or writing a jury instruction, I suppose, remains to be seen to a certain extent. Gosh knows that there was a wide, deep and long history of civil litigation defining and using those terms over the course of time and I don't think it was the intention of either chamber to rewrite that entire body of common law.
Matt Mendoza:
Thanks, Senator. I know Mike had some questions about the similarities between the healthcare provider provisions of the bill.
Michael VanBuren:
Thanks, Matt. Senator, I understand from looking at both versions of the bill on the Senate side and the House side that they build upon Ohio's existing statutory immunity framework for healthcare providers who provide services in new emergencies. I'm curious, it looks [inaudible 00:14:58] read it that this is intended to grant immunity in a broader set of circumstances, broadly defined or broadly declared disasters and emergencies, which would pick up COVID and it would also apply to a broader set of providers, most institutional providers, physicians and then non-physician providers as well. Can you confirm that and then [inaudible 00:15:27] a little bit about the scope of services that the grants intended to pick up?
Senator John Eklund:
Sure. You're absolutely right. I think the last time I counted, we were going in existing law from 14 defined professions or professionals who were immune or potentially immune under the law, to something like 46. I think that comes from two places. Number one, there was a perception and, I think, accurate to a large degree, that since the bill was first enacted, since the law was first enacted, there have emerged different types and forms and levels of medical practice, if you will and ancillary practices, professional practices, that we saw very little reason not to include them within this bill, because they are just as likely, or maybe even in some cases, more likely to encounter situations in an emergency or a disaster. So we tried to be a bit more inclusive.
Senator John Eklund:
Now, I'll tell you, once in the legislative process, a list like this begins expanding, you get a lot of knocks on your door from people saying, "Me too. Put me in. Put me in." There was a certain measure of that and not everybody who knocked got into the bill, but a lot of people did and we're trying to be as inclusive in that respect as we can. Now the other part of it is that current law provides the immunity for providing the medical services in a disaster. Specific conditions and a separate set of legal principles associated with a declared disaster, the bill adds an emergency, which is a separate and distinct declaration by the governor, which has different impacts, and frankly, is broader than just a disaster. So the more broad conditions to which the immunity could apply, the more people who are going to be impacted on it and therefore, the more who are going to be listed as immune. That's really where that came from, Mike.
Michael VanBuren:
That makes perfect sense. Then the flip side to that, as you alluded to earlier, there are limits to the conduct that's granted immunity. You talked about willful or wanton misconduct and gross negligence and professional discipline cases and the conduct that amounts to reckless disregard. Can you talk a little bit about the reckless disregard standard? I know it changed a little bit from what's in the existing statute. For the non-litigators among us, what does that standard amount to? Is it tied to something else in the revised code? How do we take that out and into practice with us?
Senator John Eklund:
Well, let me start with this that I'm not the most qualified person on this call to talk about the status of tort law in the state of Ohio. You guys may be, will be, much better at that. But what you should understand is when the bills were originally drafted, there was a great effort to remove recklessness from the exception to the immunity. In other words, there were those who wanted to immunize reckless conduct in both parts of the bill and this, of course, led to a great gnashing of teeth and wringing of hands, et cetera. Finally, the advocacy moved to the point of, "Well, okay. We'll put recklessness in as an exception to the immunity, but let's define it in such a way so that it has some real teeth."
Senator John Eklund:
That is to say it should not be easy, in these circumstances addressed by the bill to prove that somebody acted recklessly. The language that is in existing law that defines reckless is really kind of fuzzy-ended. It's whether or not the provider knew or should have known that he was creating an unreasonable risk to somebody. What we've done instead of that, which we thought was a little fuzzy-ended, we've borrowed some language from Ohio's criminal statutes, which for purposes of defining the mental state of an actor, reckless can sometimes lead to criminal prosecution. But that's a definition that has been used in the criminal law for many, many years and everybody seems to know what it means and how to apply it. So we were able to leave reckless as an unimmunized conduct, but constrain it a little bit more so that it's not quite so easy, I don't think, to prove under this bill as it is under existing law.
Michael VanBuren:
Thank you. That's very helpful. Thank you. Ray, do we want to talk a little bit about-
Ray Tarasuck:
Yeah. So, John, we've talked a lot now about the similarities between the bills and Senator, I've been personally following Senate Bill 308 and House Bill 606 as they've made their way through both chambers. In addition to the similarities that we've talked about, there are some major differences between both of these bills that have probably made the stumbling blocks to getting this legislation passed. So could you explain to us, tell us a little bit about those major differences between the two bills that we're dealing with right now down in Columbus?
Senator John Eklund:
Ray, in the interest of time, let me try to capture three or four anyway. One of which, of course, is that the House bill includes language that sort of does a little surgery on the workers' compensation law here in Ohio, number one, not in the Senate bill. We can talk about that if you want. Number two is when viewed carefully, the harms for which the bills create immunity are different. The House version protects against harm that's caused by exposure, contracting viruses. It doesn't matter who or where, the cause is exposure or contracting a disease and a virus. On the Senate side, we look more towards the nature of the conduct that caused the harm and it has to be conduct that was undertaken because of, or in response to, a declared emergency, the COVID-19 emergency, in particular. So I think at the end of the day, we may get to the same place under either standard, but that's not particularly clear to me, so that's something that's going to have to be nailed down, it seems to me, number one.
Senator John Eklund:
Number two, the Senate bill does not provide immunity to the healthcare community in an emergency or a disaster for wrongful death claims. That is excluded from the immunity on the healthcare side of this. The House bill does not, so wrongful death claims or it doesn't matter. If you're immunized, you're immunized and I think that's not an insubstantial difference. The Senate bill, on both parts of it, healthcare and general immunity, if you will, provide that if the immunity allowed by the bill does not apply, then no class actions can be brought to recover from the injuries or harm or death or whatever it is. The House bill does not address that issue and that, of course, raises among other things, some interesting constitutional questions, Ohio Constitution questions, over the extent to which eliminating class actions for a particular cause of action does or does not violate the Modern Courts Amendment to the Ohio Constitution, which says, "All matters of the procedure are under the control of the Supreme Court of Ohio."
Senator John Eklund:
But that's an issue that we can do another webinar on that one. But those are some of the substantial differences. I think that in the Senate bill, the healthcare changes in the law would be permanent, permanent and continue on after the COVID crisis. The general liability immunity would end on April 1st of next year. The House puts both parts of the bill into temporary law so that both of them end on December 31st of this year. That sounds like kind of a procedural thing, but when you realize you're talking about causes of action here so that when the conduct occurs matters to the extent to which the immunity is available, it's a substantial difference that needs to be reconciled. Those are the highlights, I would say, at this point, Ray.
Matt Mendoza:
Senator, thank you. I had some follow-up questions on some of the differences between the bills and we had talked earlier about general liability claims and the general immunity that this statute likely would provide if it were passed. But we know that workplace claims are different, that is, an employee who's injured in the workplace cannot, in Ohio, sue her employer for negligence and her remedy for a workplace injury is the workers' compensation system where if the employee can demonstrate that she suffered the injury in the course of her employment, then she gets compensation out of the workers' comp system without demonstrating that legal duty was breached by the employer.
Matt Mendoza:
There is also a very narrow exception in Ohio for an employer intentional tort in circumstances where the employee can demonstrate that the employer deliberately intended to injure the employee, then they can recover through the courts. You mentioned that the House bill is different than the Senate bill in that it has some provisions that address workers' compensation issues and the Senate bill is silent on that. Can you tell us a little bit more about how that would impact the workers' comp under the House version?
Senator John Eklund:
Well, Matt, the House version, and it's not quite so simple and it takes a lot of pages to do it, but essentially says that for certain occupations or professions or jobs, if you contract COVID-19, a rebuttable presumption will be in place that you caught it at your job and that it arises from your employment, a rebuttable presumption. Now you talk about, could we still have litigation over all of this stuff? There you go. What does it take to rebut that presumption is left unstated and so that's what the House bill does.
Senator John Eklund:
It does not otherwise alter, that I can tell. The fundamental premise of how worker's compensation works in Ohio, which you, I think, gave a good summary of. But I can tell you that once that provision went into their bill, there were an awful lot of people and organizations who were supporters of the bill who turned right around and now do not support the bill. So there's one of those differences we were talking about that really is going to have to get resolved one way or the other because while we never get everybody happy on a bill, the object is sometimes to make everybody equally miserable. Right now, I think that balance is mildly out of whack.
Matt Mendoza:
Thank you, Senator. I think Mike had a question about the differences between the two bills on the healthcare provider side.
Michael VanBuren:
Senator, I think you covered my questions very quickly and succinctly with your summary. I think two of the primary differences are the sunset provision in the Senate bill where the healthcare [inaudible 00:29:59] would go away at the end of this year and the carve-out for the wrongful death cause of action, which is certainly a very significant difference. It's 12:30. I know we're coming up on the end of our time. Ray, do you want to talk about next steps? Senator, I assume you've got some thoughts on the prognosis from here and where this goes and I believe we've got some audience questions as well.
Ray Tarasuck:
I think, Senator, as we look forward now, we've talked about the similarities and differences between bullet pieces of legislation and we have two, in some ways very similar and in some ways very distinct, different bills that are here. I think both of which are equally important to the general business community as well as to the healthcare community. So as we sit here today, where do we stand right now with these two bills? Where do we need to go from here to really have a piece of legislation that's put on the governor's desk that that can be signed, that can address all the issues that both Matt and Mike have raised here today?
Senator John Eklund:
That's a particularly timely thought at this stage because for better or worse, we're in a kind of an odd time. Both Chambers have passed their bill. The Senate passed Senate Bill 3; the House passed House Bill 606. House bill has been referred to the Judiciary Committee of which I'm the chair. Last week, we had a sponsor testimony where the sponsor of the bill comes in and just kind of gives an overview. We don't get very deep into the weeds in that stage of the game. The Senate bill has been referred to the Civil Justice Committee over in the House and we'll be, I'm sure, seeing sponsored testimony given over there as soon as we possibly can.
Senator John Eklund:
But it's not clear to me that we really have the time to devote the full normal legislative process to either of these bills for a number of reasons. Number one, the House of Representatives adjourned on Thursday and the reports from there are that they don't intend to come back to a session until sometime after Labor Day. That's a long time. So what's the likelihood that the Senate bill is going to get even a peak over in the House if they're not having sessions? Now that doesn't mean that committees can't meet and perhaps they will. I hope very much that the Senate committees continue to meet over the course of the summer and I believe they will, but you've got to kind of a disruption there with the recess of whatever duration and type it lasts.
Senator John Eklund:
The other thing, and when I would say that most people would say, "Oh my God. It's going to get rushed through and nothing's going to be right and haste makes waste." To a certain extent, that's true, but I think we can take a certain measure of confidence in this at this stage because House leadership, the House sponsor, Senate leadership, me, the sponsor the Senate bill spent not a little bit of time before the bills were introduced, working with each other on draft documents and our staffs worked with each other to basically try to narrow the differences between our approaches. I think, believe it or not, despite the differences that we've described, we did narrow the differences considerably.
Senator John Eklund:
Of course, the workers' comp part of the House bill didn't come in until the bill was on the floor of the house, Matt. So you talk about anything can happen, anything can happen, but we did work very collaboratively with the members of the House to fully understand where they're coming from and for them to fully understand where we were coming from, addressed many differences that we had at the outset and we're all kind of very familiar with what are the issues that we have to deal with? I would like to think that whether the House is in session or the Senate is in session or not, that the mutual interest of the legislators should be to proceed with a bill, I don't care whose it is, that basically gets at these issues in a purposeful way.
Senator John Eklund:
We don't necessarily need to be in committee hearings in order to do that. Committee hearings are great, but at the end of the day, the real work goes on outside of the committee room in terms of drafting and compromising and hearing from interested parties and their particular take on a bill. So there's going to be a lot of that going on I hope and I hope that will ameliorate some of the effects of the fact that we're coming to the end of the June in an election year and a lot of people decide they need to be in their districts.
Ray Tarasuck:
Senator, hopefully, once we do have that final piece of legislation and once it does get signed by the governor, we can have you back. We can talk now about what that final piece of legislation looks like for both members of the general business community and for members of the healthcare community. We would love to have you back to have that conversation as well.
Senator John Eklund:
Well, thank you very much. I'd love to do it, so you know how to find me.
Ray Tarasuck:
We do. All right, Senator, thank you. Mike, Matt, thank you all very much. Everybody joining here on this webinar, thank you all for participating.
Senator John Eklund:
Thank you.
Matt Mendoza:
Take care [crosstalk 00:35:48].
Senator John Eklund:
Have a great day.