Mississippi Legislates Herd Immunity from COVID-19 Exposure Claims

Litigation Alert

Firm Alert

Author(s)

The Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act was signed into law on July 8, 2020. The Act provides sweeping immunity for businesses, health care providers, and manufacturers against suits by plaintiffs alleging exposure to the virus.

General Immunity Provision

Section 3 of the Act grants immunity “from suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19” to certain defendants under certain circumstances.

  1. If you are an individual, state or political subdivision, association, educational entity, business, charity, or religious organization, immunity applies if:
    1. “in the course of or through the performance or provision of [your] functions or services,”
    2. you attempted in good faith to follow applicable public health guidance unless no guidance was in place at the time.
  2. If you are an owner, lessee, occupant or other person in control of a premises, immunity applies if you:
    1. attempted in good faith to follow applicable public health guidance; and
    2. directly or indirectly invite or permit any person onto the premises.

Proving Good Faith – Attorney Opinion Letters and Liability Waivers

The immunity grant is generous — not automatic. Individuals and businesses need to stay apprised of “applicable public health guidance” for their industry. This means reviewing and complying with written guidance issued by federal executive and regulatory agencies and Mississippi’s executive agencies.

While the Act does not explain how parties show good faith, it could be established by:

  • An attorney opinion letter confirming your proposed reopening policies comply with the applicable public health guidance; or 
  • Liability waivers.

These preemptive measures could help establish immunity earlier in litigation and snub out frivolous claims before plaintiffs can open the door to discovery. However, you should speak to an attorney to determine the best approach for your business or organization—they can recommend strategies to address your unique risk exposure under the Act, state and federal emergency orders, and public health guidance.   

Immunity for Health Care Providers

Health care professionals and health care facilities receive by far the broadest grant of immunity under the Act. Their immunity applies to “any injury or death directly or indirectly sustained because of their acts or omissions while providing health care services related to a COVID-19 state of emergency.” (emphasis added).

Immunity for health care providers starts the day a state of emergency is (or was) declared and extends for a year after it ends. It applies to any health care services performed during the state of emergency. It also includes specific acts — without precluding other acts and omissions — taken in response to COVID-19, like prescribing medication outside its normal use, delaying or canceling nonurgent or elective procedures, treating patients outside of provider’s normal specialty, and using modified medical devices for an unapproved use. The act cautions that immunity for health care providers should be applied by courts liberally.

Products Liability Immunity

Manufacturers, designers, labeler, sellers, distributors, or donors of certain products receive immunity from suit “for any injuries resulting from or related to actual or alleged exposure or potential exposure to COVID-19 caused by” a product if the product is either:

  1. A qualified product, meaning it is:
    1. PPE; medical devices, equipment, or supplies (including products modified for an unapproved use or products utilized outside of its normal use); medications (including those prescribed or dispensed for off-label use); tests to diagnose or determine immunity to COVID-19 approved by or submitted for approval by FDA; or components of any of the forgoing products; and
    2. used to prevent the spread of, protect a person from, or treat COVID-19; or
  2. Made, sold, or donated outside of the ordinary course of the person’s business in response to COVID-19; and is either
    1. disinfecting or cleaning supplies, or 
    2. personal protective equipment (defined as coveralls, face shields, gloves, gowns, masks, respirators or other equipment designed to protect the wearer from the spread of infection or illness).

Oddly, the language limits personal protective equipment to products intended to protect the wearer from the spread of infection or illness. Recent CDC guidance provides that face masks do not protect the wearer from catching COVID-19, but rather help prevent the wearer from spreading the virus to others. If you are selling PPE in Mississippi, you may want to include warnings that track the current public health guidance.

Intentional Tort Exception

The Act carves out an exception to immunity where “plaintiff shows by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional conduct.”

Two-Year Statute of Limitation

The Act provides a two-year statute of limitation for causes of action based on any alleged injury arising from COVID-19. Consequently, parties should be aware that certain claims may be subject to a new two-year statute of limitations, as opposed to Mississippi’s general three-year statute of limitation. C.f., Miss. Code Ann. § 15–1–49.

Potential Litigation Issues

The Act does not clarify whether its immunity for injuries includes both physical and economic injuries. The Act could include immunity for liability traditionally incurred by tort, contract, or otherwise. Because of its breadth, businesses concerned with potential disputes — whether tortious or contractual — arising during the pandemic should seek the advice of counsel to determine whether and to what extent preemptive steps can be taken to come within (or avoid) the statute’s immunity. 

Client Guidance

While the Act leaves many questions unanswered, the best way to ensure that your business is entitled to immunity under the Act is to document your efforts to comply with state and local government public health guidance and train your employees accordingly. As always, Bradley’s attorneys are available when you need help navigating these unchartered territories.