SB1616 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB1616

 

Introduced 2/26/2021, by Sen. Dale Fowler

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the COVID-19 Liability Act. Defines terms. Provides that a person may bring a coronavirus exposure action under certain circumstances. Provides that no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff proves specified elements by clear and convincing evidence. Provides that a person may bring a coronavirus-related medical liability action under certain circumstances. Provides that no health care provider shall be liable in a coronavirus-related medical liability action unless the plaintiff proves certain requirements by clear and convincing evidence. Provides that if any person transmits or causes another to transmit in any form and by any means a demand for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action, the party receiving such a demand shall have a cause of action for the recovery of damages occasioned by such a demand and for declaratory judgment if the claim upon which the demand letter was based was meritless. Provides that an employer conducting testing for coronavirus at the workplace shall not be liable for any action or personal injury directly resulting from such testing. Includes provisions for: liability limitations; procedures; joint employment and independent contracting; and severability.


LRB102 13274 LNS 18618 b

 

 

A BILL FOR

 

SB1616LRB102 13274 LNS 18618 b

1    AN ACT concerning civil liability.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5COVID-19 Liability Act.
 
6    Section 5. Definitions. As used in this Act:
7    "Applicable government standards and guidance" means:
8        (1) any mandatory standards, rules, or regulations
9    specifically concerning the prevention or mitigation of
10    the transmission of coronavirus issued by the federal,
11    State, or local government with jurisdiction over an
12    individual or entity, whether provided by executive,
13    judicial, or legislative order; and
14        (2) with respect to an individual or entity that, at
15    the time of the actual, alleged, feared, or potential for
16    exposure to coronavirus is not subject to any mandatory
17    standards, rules, or regulations described in paragraph
18    (1), any guidance, standards, or regulations specifically
19    concerning the prevention or mitigation of the
20    transmission of coronavirus issued by the federal, State,
21    or local government with jurisdiction over the individual
22    or entity.
23    "Business, services, activities, or accommodations" means

 

 

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1any act by an individual or entity, irrespective of whether
2the act is carried on for profit, that is interstate or foreign
3commerce, that involves persons or things in interstate or
4foreign commerce, that involves the channels or
5instrumentalities of interstate or foreign commerce, that
6substantially affects interstate or foreign commerce, or that
7is otherwise an act subject to regulation by the Congress of
8the United States as necessary and proper to carry into
9execution of the Congress of the United States' powers to
10regulate interstate or foreign commerce or to spend funds for
11the general welfare.
12    "Coronavirus" means any disease, health condition, or
13threat of harm caused by the SARS–CoV–2 virus or a virus
14mutating therefrom.
15    "Coronavirus-related action" means a coronavirus exposure
16action or a coronavirus-related medical liability action.
17    "Coronavirus-related health care services" means services
18provided by a health care provider, regardless of the location
19where the services are provided, that relate to:
20        (1) the diagnosis, prevention, or treatment of
21    coronavirus;
22        (2) the assessment or care of an individual with a
23    confirmed or suspected case of coronavirus; or
24        (3) the care of any individual who is admitted to,
25    presents to, receives services from, or resides with, a
26    health care provider for any purpose during the period of

 

 

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1    an emergency or disaster declaration concerning
2    coronavirus, if such provider's decisions or activities
3    with respect to such an individual are impacted as a
4    result of coronavirus.
5    "Employer" means any person serving as an employer or
6acting directly in the interest of an employer in relation to
7an employee. "Employer" includes a public agency. "Employer"
8does not include any labor organization, other than when
9acting as an employer, or any person acting in the capacity of
10officer or agent of such labor organization.
11    "Government" means an agency, instrumentality, or other
12entity of the federal, State, or local government.
13    "Gross negligence" means a conscious, voluntary act or
14omission in reckless disregard of:
15        (1) a legal duty;
16        (2) the consequences to another party; and
17        (3) applicable government standards and guidance.
18    "Harm" includes:
19        (1) physical and nonphysical contact that results in
20    personal injury to an individual; and
21        (2) economic and noneconomic losses.
22    "Health care provider" means any person, including an
23agent, volunteer, as described in this definition, contractor,
24employee, or other entity, who is:
25        (1) required by federal or State law to be licensed,
26    registered, or certified to provide health care and is so

 

 

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1    licensed, registered, or certified, or is exempt from any
2    such requirement;
3        (2) otherwise authorized by federal or State law to
4    provide care, including services and supports furnished in
5    a home or community-based residential setting under the
6    federal State Medicaid program or a waiver of that
7    program; or
8        (3) considered under applicable federal or State law
9    to be a health care provider, health care professional,
10    health care institution, or health care facility.
11"Health care provider" includes a health care facility
12administrator, executive, supervisor, board member or trustee,
13or another individual responsible for directing, supervising,
14or monitoring the provision of coronavirus-related health care
15services in a comparable role. "Health care provider" includes
16volunteers that meet the following criteria:
17        (1) The volunteer is a health care professional
18    providing coronavirus-related health care services.
19        (2) The act or omission by the volunteer occurs:
20            (A) in the course of providing health care
21        services;
22            (B) in the health care professional's capacity as
23        a volunteer;
24            (C) in the course of providing health care
25        services that:
26                (i) are within the scope of the license,

 

 

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1            registration, or certification of the volunteer;
2            and
3                (ii) do not exceed the scope of license,
4            registration, or certification of a substantially
5            similar health professional in the State; and
6            (D) in a good faith belief that the individual
7        being treated is in need of health care services.
8    "Individual or entity" means:
9        (1) any natural person, corporation, company, trade,
10    business, firm, partnership, joint stock company,
11    educational institution, labor organization, or similar
12    organization or group of organizations;
13        (2) any nonprofit organization, foundation, society,
14    or association organized for religious, charitable,
15    educational, or other purposes; or
16        (3) any State or local government.
17    "Mandatory", with respect to standards, rules, or
18regulations, means the standards, rules, or regulations are
19themselves enforceable by the issuing government through
20criminal, civil, or administrative action.
21    "Personal injury" means actual or potential physical
22injury to an individual or death caused by a physical injury.
23"Personal injury" includes mental suffering, emotional
24distress, or similar injuries suffered by an individual in
25connection with a physical injury.
26        (1) is wholly owned by that governing body; and

 

 

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1        (2) has been delegated the right to exercise one or
2    more substantial governmental functions of the governing
3    body.
4    "Willful misconduct" means an act or omission that is
5taken:
6        (1) intentionally to achieve a wrongful purpose;
7        (2) knowingly without legal or factual justification;
8    and
9        (3) in disregard of a known or obvious risk that is so
10    great as to make it highly probable that the harm will
11    outweigh the benefit.
 
12    Section 10. Coronavirus exposure actions.
13    (a) A person may bring a coronavirus exposure action if it
14is:
15        (1) brought by a person who suffered personal injury
16    or is at risk of suffering personal injury, or a
17    representative of a person who suffered personal injury or
18    is at risk of suffering personal injury;
19        (2) brought against an individual or entity engaged in
20    businesses, services, activities, or accommodations; and
21        (3) alleging that an actual, alleged, feared, or
22    potential for exposure to coronavirus caused the personal
23    injury or risk of personal injury, that:
24            (A) occurred in the course of the businesses,
25        services, activities, or accommodations of the

 

 

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1        individual or entity; and
2            (B) occurred:
3                (i) on or after December 1, 2019; and
4                (ii) before the later of:
5                    (I) October 1, 2024; or
6                    (II) the date on which there is no
7                declaration by the United States Secretary of
8                Health and Human Services under section
9                319F–3(b) of the Public Health Service Act (42
10                U.S.C. 247d–6d(b)) (relating to medical
11                countermeasures) that is in effect with
12                respect to coronavirus, including the
13                Declaration Under the Public Readiness and
14                Emergency Preparedness Act for Medical
15                Countermeasures Against COVID-19 (85 Federal
16                Register 15198) issued by the Secretary of
17                Health and Human Services on March 17, 2020.
18    (b) A person may prevail in a coronavirus exposure action
19only in accordance with the requirements of this Act.
20    (c) The Section applies to:
21        (1) any cause of action giving rise to a coronavirus
22    exposure action that was filed before the date of
23    enactment of this Act and that is pending on such date of
24    enactment; and
25        (2) any coronavirus exposure action filed on or after
26    such date of enactment.

 

 

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1    (d) Except as otherwise provided in this Section, nothing
2in this Section expands any liability otherwise imposed or
3limits any defense otherwise available under the law.
4    Except as described in this Section, this Section preempts
5and supersedes any State law, including statutes, rules, or
6standards that are enacted, adopted, or established under
7common law, related to recovery for personal injuries caused
8by actual, alleged, feared, or potential for exposure to
9coronavirus.
10    Nothing in this Section shall be construed to affect the
11applicability of any provision of any federal or State law
12that imposes stricter limits on damages or liabilities for
13personal injury caused by, arising out of, or related to an
14actual, alleged, feared, or potential for exposure to
15coronavirus, or otherwise affords greater protection to
16defendants in any coronavirus exposure action, than are
17provided in this Section. Any such provision of federal or
18State law shall be applied in addition to the requirements of
19this Section and not in lieu thereof.
20    Nothing in this Section shall be construed to affect the
21applicability of the Workers' Compensation Act, or to preempt
22or supersede an exclusive remedy under that Act.
23    Nothing in this Section shall be construed to impair,
24limit, or affect the authority of the federal, State, or local
25government to bring any criminal, civil, or administrative
26enforcement action against any individual or entity.

 

 

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1    Nothing in this Section shall be construed to affect the
2applicability of any provision of any federal or State law
3that creates a cause of action for intentional discrimination
4on the basis of race, color, national origin, religion, sex,
5disability, genetic information, or age.
6    (e) A coronavirus exposure action may not be commenced in
7any State court later than one year after the date of the
8actual, alleged, feared, or potential for exposure to
9coronavirus.
 
10    Section 15. Liability; safe harbor.
11    (a) Notwithstanding any other provision of law, and except
12as otherwise provided in this subsection, no individual or
13entity engaged in businesses, services, activities, or
14accommodations shall be liable in any coronavirus exposure
15action unless the plaintiff can prove by clear and convincing
16evidence that:
17        (1) in engaging in the businesses, services,
18    activities, or accommodations, the individual or entity
19    was not making reasonable efforts in light of all the
20    circumstances to comply with the applicable government
21    standards and guidance in effect at the time of the
22    actual, alleged, feared, or potential for exposure to
23    coronavirus;
24        (2) the individual or entity engaged in gross
25    negligence or willful misconduct that caused an actual

 

 

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1    exposure to coronavirus; and
2        (3) the actual exposure to coronavirus caused the
3    personal injury of the plaintiff.
4    (b) If more than one government to whose jurisdiction an
5individual or entity is subject issues applicable government
6standards and guidance, and the applicable government
7standards and guidance issued by one or more of the
8governments conflicts with the applicable government standards
9and guidance issued by 1 or more of the other governments, the
10individual or entity shall be considered to have made
11reasonable efforts in light of all the circumstances to comply
12with the applicable government standards and guidance unless
13the plaintiff establishes by clear and convincing evidence
14that the individual or entity was not making reasonable
15efforts in light of all the circumstances to comply with any of
16the conflicting applicable government standards and guidance
17issued by any government to whose jurisdiction the individual
18or entity is subject.
19    If mandatory standards, rules, and regulations
20constituting applicable government standards and guidance
21issued by any government with jurisdiction over the individual
22or entity conflict with applicable government standards and
23guidance that are not mandatory and are issued by any other
24government with jurisdiction over the individual or entity or
25by the same government that issued the mandatory standards,
26rules, and regulations, the plaintiff may establish that the

 

 

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1individual or entity did not make reasonable efforts in light
2of all the circumstances to comply with the applicable
3government standards and guidance by establishing by clear and
4convincing evidence that the individual or entity was not
5making reasonable efforts in light of all the circumstances to
6comply with the mandatory standards, rules, and regulations to
7which the individual or entity was subject.
8    (c) If an individual or entity engaged in businesses,
9services, activities, or accommodations maintained a written
10or published policy on the mitigation of transmission of
11coronavirus at the time of the actual, alleged, feared, or
12potential for exposure to coronavirus that complied with, or
13was more protective than, the applicable government standards
14and guidance to which the individual or entity was subject,
15the individual or entity shall be presumed to have made
16reasonable efforts in light of all the circumstances to comply
17with the applicable government standards and guidance.
18    The plaintiff may rebut the presumption under this
19subsection by establishing that the individual or entity was
20not complying with the written or published policy at the time
21of the actual, alleged, feared, or potential for exposure to
22coronavirus.
23    The absence of a written or published policy shall not
24give rise to a presumption that the individual or entity did
25not make reasonable efforts in light of all the circumstances
26to comply with the applicable government standards and

 

 

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1guidance.
2    A change to a policy or practice by an individual or entity
3before or after the actual, alleged, feared, or potential for
4exposure to coronavirus, shall not be evidence of liability
5for the actual, alleged, feared, or potential for exposure to
6coronavirus.
7    (c) No individual or entity shall be held liable in a
8coronavirus exposure action for the acts or omissions of a
9third party, unless:
10        (1) the individual or entity had an obligation under
11    general common law principles to control the acts or
12    omissions of the third party; or
13        (2) the third party was an agent of the individual or
14    entity.
15    (d) Changes to the policies, practices, or procedures of
16an individual or entity for complying with the applicable
17government standards and guidance after the time of the
18actual, alleged, feared, or potential for exposure to
19coronavirus, shall not be considered evidence of liability or
20culpability.
 
21    Section 20. Coronavirus-related medical liability actions.
22    (a) A person may bring a coronavirus-related medical
23liability action if it is:
24        (1) brought by a person who suffered personal injury,
25    or a representative of a person who suffered personal

 

 

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1    injury;
2        (2) brought against a health care provider; and
3        (3) alleging any harm, damage, breach, or tort
4    resulting in the personal injury alleged to have been
5    caused by, be arising out of, or be related to a health
6    care provider's act or omission in the course of arranging
7    for or providing coronavirus-related health care services
8    that occurred:
9            (A) on or after December 1, 2019; and
10            (B) before the later of:
11                (i) October 1, 2024; or
12                (ii) the date on which there is no declaration
13            by the United States Secretary of Health and Human
14            Services under section 319F–3(b) of the Public
15            Health Service Act (42 U.S.C. 247d–6d(b))
16            (relating to covered countermeasures) that is in
17            effect with respect to coronavirus, including the
18            Declaration Under the Public Readiness and
19            Emergency Preparedness Act for Medical
20            Countermeasures Against COVID-19 (85 Federal
21            Register 15198) issued by the Secretary of Health
22            and Human Services on March 17, 2020.
23    (b) A plaintiff may prevail in a coronavirus-related
24medical liability action only in accordance with the
25requirements of this Act.
26    (c) This Section applies to:

 

 

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1        (1) any cause of action giving rise to a
2    coronavirus-related medical liability action that was
3    filed before the date of enactment of this Act and that is
4    pending on such date of enactment; and
5        (2) any coronavirus-related medical liability action
6    filed on or after such date of enactment.
7    (d) Except as otherwise provided in this Section, nothing
8in this Section expands any liability otherwise imposed or
9limits any defense otherwise available under federal or State
10law.
11    Except as described in this Section, this Section preempts
12and supersedes any State law, including statutes, rules, or
13standards that are enacted, adopted, or established under
14common law, related to recovery for personal injuries caused
15by, arising out of, or related to an act or omission by a
16health care provider in the course of arranging for or
17providing coronavirus-related health care services.
18    Nothing in this Section shall be construed to affect the
19applicability of any provision of any federal or State law
20that imposes stricter limits on damages or liabilities for
21personal injury caused by, arising out of, or related to an act
22or omission by a health care provider in the course of
23arranging for or providing coronavirus-related health care
24services, or otherwise affords greater protection to
25defendants in any coronavirus-related medical liability action
26than are provided in this Section. Any such provision of

 

 

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1federal or State law shall be applied in addition to the
2requirements of this Section and not in lieu thereof.
3    Nothing in this Section shall be construed to impair,
4limit, or affect the authority of the federal, State, or local
5government to bring any criminal, civil, or administrative
6enforcement action against any health care provider.
7    Nothing in this Section shall be construed to affect the
8applicability of any provision of any federal or State law
9that creates a cause of action for intentional discrimination
10on the basis of race, color, national origin, religion, sex,
11disability, genetic information, or age.
12    (e) A coronavirus-related medical liability action may not
13be commenced in any State court later than one year after the
14date of the alleged harm, damage, breach, or tort, unless
15tolled for:
16        (1) proof of fraud;
17        (2) intentional concealment; or
18        (3) the presence of a foreign body, which has no
19    therapeutic or diagnostic purpose or effect, in the person
20    of the injured person.
 
21    Section 25. Liability for health care professionals and
22health care facilities during coronavirus public health
23emergency.
24    (a) Notwithstanding any other provision of law, and except
25as provided in subsection (b), no health care provider shall

 

 

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1be liable in a coronavirus-related medical liability action
2unless the plaintiff can prove by clear and convincing
3evidence:
4        (1) gross negligence or willful misconduct by the
5    health care provider; and
6        (2) that the alleged harm, damage, breach, or tort
7    resulting in the personal injury was directly caused by
8    the alleged gross negligence or willful misconduct.
9    (b) For purposes of this Section, acts, omissions, or
10decisions resulting from a resource or staffing shortage shall
11not be considered willful misconduct or gross negligence.
 
12    Section 30. Liability limitations.
13    (a) An individual or entity against whom a final judgment
14is entered in any coronavirus-related action shall be liable
15solely for the portion of the judgment that corresponds to the
16relative and proportionate responsibility of that individual
17or entity. In determining the percentage of responsibility of
18any defendant, the court shall determine that percentage as a
19percentage of the total fault of all individuals or entities,
20including the plaintiff, who caused or contributed to the
21total loss incurred by the plaintiff.
22    (b) In any coronavirus-related action, the court shall
23instruct the jury to answer special interrogatories, or, if
24there is no jury, the court shall make findings with respect to
25each defendant, including defendants who have entered into

 

 

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1settlements with the plaintiff or plaintiffs, concerning the
2percentage of responsibility, if any, of each defendant,
3measured as a percentage of the total fault of all individuals
4or entities who caused or contributed to the loss incurred by
5the plaintiff.
6    (c) In determining the percentage of responsibility under
7this Section, the court shall consider:
8        (1) the nature of the conduct of each individual or
9    entity found to have caused or contributed to the loss
10    incurred by the plaintiff; and
11        (2) the nature and extent of the causal relationship
12    between the conduct of each such individual or entity and
13    the damages incurred by the plaintiff.
14    (d) Notwithstanding subsection (a), in any
15coronavirus-related action the liability of a defendant is
16joint and several if the court specifically determines that
17the defendant:
18        (1) acted with specific intent to injure the
19    plaintiff; or
20        (2) knowingly committed fraud.
21    (e) Nothing in this Section affects the right, under any
22other law, of a defendant to contribution with respect to
23another defendant determined under subsection (d) to have
24acted with specific intent to injure the plaintiff or
25knowingly to have committed fraud.
26    (f) In any coronavirus-related action:

 

 

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1        (1) the award of compensatory damages shall be limited
2    to economic losses incurred as the result of the personal
3    injury, harm, damage, breach, or tort, except that the
4    court may award damages for noneconomic losses if the
5    court determines that the personal injury, harm, damage,
6    breach, or tort was caused by the willful misconduct of
7    the individual or entity;
8        (2) punitive damages, which may:
9            (A) be awarded only if the court determines that
10        the personal injury to the plaintiff was caused by the
11        willful misconduct of the individual or entity; and
12            (B) not exceed the amount of compensatory damages
13        awarded; and
14        (3) the amount of monetary damages awarded to a
15    plaintiff shall be reduced by the amount of compensation
16    received by the plaintiff from another source in
17    connection with the personal injury, harm, damage, breach,
18    or tort, such as insurance or reimbursement by a
19    government.
20    (g) Except as described in this Section, this Section
21preempts and supersedes any State law, including statutes,
22rules, or standards that are enacted, adopted, or established
23under common law, related to joint and several liability,
24proportionate or contributory liability, contribution, or the
25award of damages for any coronavirus-related action.
26    (h) Nothing in this Section shall be construed to affect

 

 

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1the applicability of any provision of any federal or State law
2that:
3        (1) limits the liability of a defendant in a
4    coronavirus-related action to a lesser degree of liability
5    than the degree of liability determined under this
6    section;
7        (2) otherwise affords a greater degree of protection
8    from joint or several liability than is afforded by this
9    Section; or
10        (3) limits the damages that can be recovered from a
11    defendant in a coronavirus-related action to a lesser
12    amount of damages than the amount determined under this
13    Section.
 
14    Section 35. Procedures.
15    (a) In any coronavirus-related action the complaint shall
16plead with particularity:
17        (1) each element of the plaintiff's claim and, with
18    respect to a coronavirus exposure action, all places and
19    persons visited by the person on whose behalf the
20    complaint was filed and all persons who visited the
21    residence of the person on whose behalf the complaint was
22    filed during the 14 days before the onset of the first
23    symptoms allegedly caused by coronavirus, including:
24            (A) each individual or entity against which a
25        complaint is filed, along with the factual basis for

 

 

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1        the belief that such individual or entity was a cause
2        of the personal injury alleged; and
3            (B) every other person or place visited by the
4        person on whose behalf the complaint was filed and
5        every other person who visited the residence of the
6        person on whose behalf the complaint was filed during
7        such period, along with the factual basis for the
8        belief that these persons and places were not the
9        cause of the personal injury alleged; and
10        (2) each alleged act or omission constituting gross
11    negligence or willful misconduct that resulted in personal
12    injury, harm, damage, breach, or tort.
13    (b) In any coronavirus-related action in which monetary
14damages are requested, there shall be filed with the complaint
15a statement of specific information as to the nature and
16amount of each element of damages and the factual basis for the
17damages calculation.
18    (c) In any coronavirus-related action in which a claim is
19asserted on which the plaintiff may prevail only on proof that
20the defendant acted with a particular state of mind, there
21shall be filed with the complaint, with respect to each
22element of that claim, a statement of the facts giving rise to
23a strong inference that the defendant acted with the required
24state of mind.
25    (d) The complaint in a coronavirus-related action shall
26include a verification, made by affidavit of the plaintiff

 

 

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1under oath, stating that the pleading is true to the knowledge
2of the deponent, except as to matters specifically identified
3as being alleged on information and belief, and that as to
4those matters the plaintiff believes it to be true.
5    (e) Any matter that is not specifically identified as
6being alleged upon the information and belief of the plaintiff
7shall be regarded for all purposes, including a criminal
8prosecution, as having been made upon the knowledge of the
9plaintiff.
10    (f) In any coronavirus-related action, the plaintiff shall
11file with the complaint:
12        (1) an affidavit by a physician or other qualified
13    medical expert who did not treat the person on whose
14    behalf the complaint was filed that explains the basis for
15    such physician's or other qualified medical expert's
16    belief that such person suffered the personal injury,
17    harm, damage, breach, or tort alleged in the complaint;
18    and
19        (2) certified medical records documenting the alleged
20    personal injury, harm, damage, breach, or tort.
21    (g) This Section applies exclusively to any
22coronavirus-related action and, except to the extent that this
23Section requires additional information to be contained in or
24attached to pleadings, nothing in this Section is intended to
25amend or otherwise supersede applicable rules of civil
26procedure.

 

 

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1    (h) Notwithstanding any other provision of law, in any
2coronavirus-related action, no discovery shall be allowed
3before:
4        (1) the time has expired for the defendant to answer
5    or file a motion to dismiss; and
6        (2) if a motion to dismiss is filed, the court has
7    ruled on the motion.
8    (i) Notwithstanding any other provision of law, the court
9in any coronavirus-related action:
10        (1) shall permit discovery only with respect to
11    matters directly related to material issues contested in
12    the coronavirus-related action; and
13        (2) may compel a response to a discovery request,
14    including a request for admission, an interrogatory, a
15    request for production of documents, or any other form of
16    discovery request, only if the court finds that:
17            (A) the requesting party needs the information
18        sought to prove or defend as to a material issue
19        contested in such action; and
20            (B) the likely benefits of a response to such
21        request equal or exceed the burden or cost for the
22        responding party of providing such response.
23    (j) In any coronavirus-related action that is maintained
24as a class action:
25        (1) an individual or entity shall only be a member of
26    the class if the individual or entity affirmatively elects

 

 

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1    to be a member; and
2        (2) the court, in addition to any other notice
3    required by applicable federal or State law, shall direct
4    notice of the action to each member of the class, which
5    shall include:
6            (A) a concise and clear description of the nature
7        of the action;
8            (B) the jurisdiction where the case is pending;
9        and
10            (C) the fee arrangements with class counsel,
11        including:
12                (i) the hourly fee being charged; or
13                (ii) if it is a contingency fee, the
14            percentage of the final award which will be paid,
15            including an estimate of the total amount that
16            would be paid if the requested damages were to be
17            granted; and
18                (iii) if the cost of the litigation is being
19            financed, a description of the financing
20            arrangement.
 
21    Section 40. Demand letters; cause of action.
22    (a) If any person transmits or causes another to transmit
23in any form and by any means a demand for remuneration in
24exchange for settling, releasing, waiving, or otherwise not
25pursuing a claim that is, or could be, brought as part of a

 

 

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1coronavirus-related action, the party receiving such a demand
2shall have a cause of action for the recovery of damages
3occasioned by such demand and for declaratory judgment, if the
4claim for which the letter was transmitted was meritless.
5    (b) Damages available under this Section shall include:
6        (1) compensatory damages including costs incurred in
7    responding to the demand; and
8        (2) punitive damages, if the court determines that the
9    defendant had knowledge or was reckless with regard to the
10    fact that the claim was meritless.
11    (c) In an action commenced under subsection (a), if the
12plaintiff is a prevailing party, the court, in addition to any
13judgment awarded to a plaintiff, shall allow a reasonable
14attorney's fee to be paid by the defendant, and costs of the
15action.
16    (d) Whenever the Attorney General has reasonable cause to
17believe that any person or group of persons is engaged in a
18pattern or practice of transmitting demands for remuneration
19in exchange for settling, releasing, waiving, or otherwise not
20pursuing a claim that is, or could be, brought as part of a
21coronavirus-related action and that is meritless, the Attorney
22General may commence a civil action in any appropriate State
23court.
24    In a civil action under this subsection, to vindicate the
25public interest, the court may assess a civil penalty against
26the respondent in an amount not exceeding $50,000 per

 

 

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1transmitted demand for remuneration in exchange for settling,
2releasing, waiving, or otherwise not pursuing a meritless
3claim.
4    If the Attorney General obtains civil penalties, the
5Attorney General shall distribute the proceeds equitably among
6those persons aggrieved by the respondent's pattern or
7practice of transmitting demands for remuneration in exchange
8for settling, releasing, waiving or otherwise not pursuing a
9claim that is meritless.
 
10    Section 45. Liability for conducting testing at workplace.
11Notwithstanding any other provision of law, an employer, or
12other person who hires or contracts with other individuals to
13provide services, conducting testing for coronavirus at the
14workplace shall not be liable for any action or personal
15injury directly resulting from such testing, except for those
16personal injuries caused by the gross negligence or
17intentional misconduct of the employer or other person.
 
18    Section 50. Joint employment and independent contracting.
19Notwithstanding any other provision of law, it shall not
20constitute evidence of a joint employment relationship or
21employment relationship for any employer to provide or
22require, for an employee of another employer or for an
23independent contractor, any:
24    (1) coronavirus-related policies, procedures, or training;

 

 

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1    (2) personal protective equipment or training for the use
2of such equipment;
3    (3) cleaning or disinfecting services or the means for
4such cleaning or disinfecting;
5    (4) workplace testing for coronavirus; or
6    (5) temporary assistance due to coronavirus, including
7financial assistance or other health and safety benefits.
 
8    Section 97. Severability. The provisions of this Act are
9severable under Section 1.31 of the Statute on Statutes.