The Texas Pandemic Liability Protection Act (PLPA) took effect on June 14, 2021 and provides retroactive protections to businesses against lawsuits alleging damages due to an exposure to COVID-19.  The general provisions of the Act are now codified at Section 148.003 of the Texas Civil Practice and Remedies Code.

It is important to note that the protection from liability for causing an exposure to COVID-19 (including liability for the death of the exposed person) is, however, not absolute.  Liability may still attach if the plaintiff can establish:

  1. The business knowingly failed to implement or comply with applicable government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease.

Note: Where state and local government authorities have issued conflicting standards, the protection from liability will remain intact so long as the business complied with one of the applicable, but conflicting, standards.

  1. Or, the business knowingly failed to warn the plaintiff of or remediate a condition within the business that it knew was likely to result in exposing plaintiff to the disease, provided that (a) the business had control over the threatening condition; (b) the business knew the plaintiff was more likely than not to come into contact with that condition; and (c) the business had a reasonable opportunity to remediate the condition or warn the individual of the condition before the individual came into contact with that condition.

If either circumstance (1) or circumstance (2) exists (potentially opening the business to liability), then the plaintiff still must also show by “reliable scientific evidence” that “the failure to warn the individual of the condition, remediate the condition, or implement or comply with the government-promulgated standards, guidance, or protocols was the cause in fact of the individual contracting the disease.”

The statute provides a specific deadline (120 days after the defendant files an answer to the lawsuit) for the plaintiff to provide an expert witness report(s) attesting to the factual and scientific grounds for the assertion that the defendant’s failure to act caused the plaintiff to contract the disease.  The statute further limits the discovery that can occur (specifically, no more than two depositions) before such expert analysis is provided by the plaintiff.  The defendant may object to the sufficiency of the expert report, with the court allowing the plaintiff an additional 30 days to cure any deficiencies.  If a sufficient expert report is not timely served, the court may then dismiss the plaintiff’s claims and the business “shall” be awarded its reasonable attorneys’ fees and costs incurred defending the action.

As noted above, the PLPA is retroactive and applies to all claims commenced on or after March 13, 2020 for which a judgment had not already been entered and become final as of June 21, 2021.

The protections provided by the PLPA will last so long as the COVID-19 “pandemic emergency” lasts, which term is defined to mean a state of disaster as declared by the governor in response to a pandemic disease.

Those businesses with COVID-related litigation now pending should consult with legal counsel concerning the application of this defense.  On a go forward basis, businesses should remain mindful of their duties to warn of and remediate threats, and to comply with government-promulgated safety measures, in order to take full advantage of the liability shields offered by the PLPA.

In addition to the more general protections from exposure-related liabilities, the PLPA provides various other statutory protections to businesses from liabilities arising out of COVID-19 and other future pandemics, including special protections for first responders, physicians, and other health care providers (codified at Section 74.155 of the Texas Civil Practice and Remedies Code), protections from products liability actions related to pandemic emergencies (codified at Section 148.002 of the same Code), and protections for educational institutions for certain actions during a pandemic (codified at Section 148.004 of the same Code).  The following is a link to the entire enrolled statute:  Bill Text: TX SB6 | 2021-2022 | 87th Legislature | Enrolled | LegiScan.

For further information on this topic, please reach out to blog author, April Walter, at april.walter@keanmiller.com