(a) A person is not liable for injury or death caused by exposing an individual to a pandemic disease during a pandemic emergency unless the claimant establishes that:
(1) the person who exposed the individual:
(A) knowingly failed to warn the individual of or remediate a condition that the person knew was likely to result in the exposure of an individual to the disease, provided that the person:
(i) had control over the condition;
(ii) knew that the individual was more likely than not to come into contact with the condition; and
(iii) had a reasonable opportunity and ability to remediate the condition or warn the individual of the condition before the individual came into contact with the condition; or
(B) knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease that were applicable to the person or the person's business, provided that:
(i) the person had a reasonable opportunity and ability to implement or comply with the standards, guidance, or protocols;
(ii) the person refused to implement or comply with or acted with flagrant disregard of the standards, guidance, or protocols; and
(iii) the government-promulgated standards, guidance, or protocols that the person failed to implement or comply with did not, on the date that the individual was exposed to the disease, conflict with government-promulgated standards, guidance, or protocols that the person implemented or complied with; and
(2) reliable scientific evidence shows 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.
(b) Except as provided by Subsection (c), not later than the 120th day after the date a defendant files an answer to a claim to which Subsection (a) applies, the claimant shall serve on the defendant:
(1) a report authored by at least one qualified expert that provides a factual and scientific basis for the assertion that the defendant's failure to act caused the individual to contract a pandemic disease; and
(2) a curriculum vitae for each expert whose opinion is included in the report.
(c) The deadline for serving the report and curriculum vitae required by Subsection (b) may be extended by written agreement of the affected parties.
(d) A defendant must file an objection to the sufficiency of the report and serve the objection on the claimant not later than 21 days after the later of:
(1) the date the report is served on the defendant; or
(2) the date the defendant's answer to the claim is filed.
(e) If a court determines that a report served under Subsection (b) does not represent an objective, good faith effort to provide a factual and scientific basis for the assertion that the defendant's failure to act caused the injured individual to contract a pandemic disease, the court may grant the claimant, on one occasion, a 30-day period to cure any deficiency in the report.
(f) If a sufficient report is not timely served under this section, the court, on the defendant's motion, shall enter an order:
(1) dismissing the claim with respect to the defendant, with prejudice; and
(2) awarding to the defendant reasonable attorney's fees and costs of court incurred by the defendant in the action.
(g) Nothing in this section shall be construed to mean that a single expert must address all causation issues with respect to all defendants.
(h) A report served under this section:
(1) is not admissible in evidence by any party;
(2) may not be used in a deposition, trial, or other proceeding; and
(3) may not be referred to by any party during the course of the action, except in a proceeding to determine if a report is sufficient or timely.
(i) After a claim to which Subsection (a) applies is filed, all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (b).
(j) For purposes of Subsection (a)(1)(B), if an order, rule, or authoritative declaration promulgated by the governor, the legislature, a state agency, or a local governmental entity with jurisdiction over the person conflicts with a different government-promulgated standard, guideline, or protocol, a person may not be considered to fail to implement or comply with the government-promulgated standard, guideline, or protocol if, at the time of the injured individual's exposure to the pandemic disease during a pandemic emergency, the person is making a good faith effort to substantially comply with at least one conflicting order, rule, or declaration.
(k) Notwithstanding any other provision of this section, a business owner or operator that does not require employees or contractors of the business to be vaccinated against a pandemic disease is not liable for injury or death caused by the exposure of an individual to the pandemic disease through an employee or contractor of the business.
Added by Acts 2021, 87th Leg., R.S., Ch. 528 (S.B. 6 ), Sec. 3, eff. June 14, 2021.
