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The Texas Pandemic Defense: A three-year review

12/11/24

By: Gabriel Canto

Anticipating a flood of litigation following the 2020 COVID pandemic, the Texas Legislature passed two statutes in 2021 designed to broadly limit pandemic liability by instituting heightened pleading requirements and a de facto gross negligence standard. Now, three years later, it’s safe to say the statutes have eliminated COVID-related litigation. 

The Broad Pandemic Defense 

Operating with a hammer and not a chisel, the Texas Legislature passed § 148.003: Liability for Causing Exposure to Pandemic Disease. This statute (we’ll call it the “Broad Pandemic Defense”) is notably in the “Miscellaneous Provisions” of the Texas Civil Practice & Remedies Code rather than the Medical Liability Section.  However, its effect is that pandemic liability now functions very much like medical liability. 

The Broad Pandemic Defense is available to any class of defendant: individuals, factories, hotels, retailers, restaurants, etc. The statute applies medical malpractice-type protections to all defendants in the case of pandemic liability. Healthcare claims, for example, require the service of a preliminary expert report 120 days following the defendant’s filing of an original answer. The Report functions as a heightened pleading standard, designed to put the healthcare provider on more specific notice of the complained conduct. See Tex. Civ. Prac. & Rem. Code § 74.351. 

The Broad Pandemic Defense likewise requires the plaintiff to produce a preliminary expert report 120 days after the defendant files its original answer. The report must be authored by a “qualified expert that provides a factual and scientific basis for the assertion that the defendant’s failure to act caused the individual to contract a pandemic disease.” Tex. Civ. Prac. & Rem. Code § 148.003(a). As with a medical liability claim, the defendant can object to the report resulting in litigation on the sufficiency of the report well before reaching the merits of the actual claim. 

As of now, the main beneficiaries of the Broad Pandemic Defense have been food processing plants. See Chaney v. Tyson Foods, Inc., 2023 WL 3260745 (E.D. Tex. 2023); Requena v. Pilgrim’s Pride Corporation, 599 F.Supp.3d 469, 470 (E.D.Tex. 2022); Johnson v. Tyson Foods, Inc., 2023 WL 3260745 at *4 (E.D. Tex. 2023). The Defense was also used by a private operator of a state jail, though the Court dismissed it on 12(b)(6) grounds and did not assess its applicability. Regalado v. Management and Training Corp., 2021 WL 5824763 (N,D, Tex. 2021). Given the lack of reported cases on this subject, it’s fair to say the Pandemic Liability Defense has deterred the filing of such cases. 

The Med-Mal Willful Conduct Defense 

The Texas Legislature, well before these new pandemic-related defenses were passed, already granted medical malpractice defendants considerable protection under the Healthcare Liability Act, Ch. 74 of the Tex. Civ. Prac. & Rem. Code. In the case of pandemic liability against healthcare professionals, the legislature added even more protection and raised the liability standard to nearly a de facto negligence standard, requiring a showing of “reckless conduct or intentional, willful, or wanton misconduct.” Tex. Civ. Prac. & Rem. Code § 74.155(b). Doctors who were providing treatment, for example, when a patient contracted Covid will not be liable absent specific facts connecting the doctor’s acts or inaction to the Covid exposure. 

Predictably, this heightened liability standard has deterred pandemic liability cases against healthcare providers. Three years later, it’s very easy to say that the statutes have more than met their intended purpose of preventing a wave of pandemic litigation. 

For more information, please contact Gabriel Canto at gabriel.canto@fmglaw.com or your local FMG attorney.