With the termination of Governor Abbott’s declared state of emergency for COVID-19 on June 15, the more than three-year period covered by the Pandemic Liability Protection Act (SB 6, 2021) has likewise come to an end.
By all accounts, SB 6 succeeded in making sure that Texas did not become a proving ground for COVID-19 related litigation. We will never know for sure how many lawsuits against health care providers, businesses, and other entities, such as schools and universities, were kept out of our courts between March 13, 2020 and June of this year. What we do know is that SB 6 gave those potential defendants confidence that their good-faith efforts to comply with myriad and changing governmental orders arising from the pandemic would not be met with lawsuits second-guessing their decisions and adding to the economic (and in the case of health care providers, physical) distress suffered by our entire society.
But, as we reported last month, SB 6 is the target of federal court litigation seeking to strike down the Act’s retrospective application to the March 13, 2020, the date Governor Abbott first declared the emergency. The Texas Supreme Court has accepted a certified question from the U.S. Fifth Circuit Court of Appeals in a case with the potential to expose thousands of Texas health care providers and businesses to liability stemming from the COVID-19 pandemic. As the primary architect of SB 6, which provided broad liability protections during the pandemic state of emergency, TCJL on Friday filed a brief urging SCOTX to uphold the statute’s retroactive application.
The case, Luke Hogan, on behalf of himself and other individuals similarly situated v. Southern Methodist University, and other affiliated entities and individuals (No. 23-0565), arose from a breach of contract action brought by a student against SMU after the university shifted from in-person to remote instruction in the spring of 2020. A federal district court dismissed the lawsuit and upheld SB 6’s retroactive application. The Fifth Circuit reversed, holding that plaintiff stated a claim for breach based on a variety of materials promising “a one-of-a-kind experience through in-person collaboration and instruction.” With respect to the constitutionality of the retroactivity provision of SB 6, however, the Fifth Circuit declined to make an Erie guess and certified the question to SCOTX, which the Court accepted on July 20.
Our brief argues that SB 6 is constitutional under Art. I, § 16, Texas Constitution, because: (1) it serves a compelling public interest as evidenced by the Legislature’s factual findings (which are set out in the bill itself); (2) the “prior right” allegedly impaired by SB 6 is uncertain and hardly “settled”; and (3) the extent of the “impairment,” if any, is commensurate with the severity of the emergency and the absolute necessity of protecting Texans from crippling litigation on top of the economic and social disruption caused by the pandemic. Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 146 (Tex. 2010). A copy of the brief is attached for your review.
As we state in our brief, this case is of incalculable importance to TCJL members. If the courts strike down the retroactivity provision of SB 6, the statute will be rendered largely ineffective and our members may find themselves embroiled in the very litigation avalanche that the bill was designed to prevent.