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May 21, 2020

ILR Briefly COVID-19 Series: State Liability Problems and Solutions

As Congress considers how to establish liability protections at the federal level, it is essential that state lawmakers take up the complementary task of creating protections tailored to meet local needs. States like New York, Illinois, and Michigan have led the way with a combination of executive orders and legislation aimed at protecting frontline healthcare providers and other services. Since then, more than 20 states have adopted similar protections, and some have expanded such protections beyond the healthcare context to address exposure and product liability.

This edition of ILR Briefly details how states can implement core liability protections in the areas of exposure, healthcare, and product liability (taking differing constitutional realities into account), and explores additional litigation hotspots like insurance litigation, state False Claims Acts, and data privacy and security concerns.

Additionally, this research examines some of the primary litigation drivers that have already sparked what may be a historic glut of pandemic litigation and suggests different procedural reforms that states can implement to discourage frivolous lawsuits and improve efficiency in addressing legitimate cases.

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