State Law Negligence COVID-19-Related Claims Do Not Fall within PREPA’s Preemptive Scope; Do Not Mandate a Federal Forum – Lexology

A New Jersey District Court has held that state law claims such as negligence, wrongful death, and medical malpractice are not preempted by the Public Readiness and Emergency Preparedness Act (PREPA) and does not create a basis for federal jurisdiction―resulting in a remand of two cases back to a New Jersey state court. We previously wrote about PREPA and the scope of the March 17, 2020, declaration by the Secretary of Health and Human Services providing civil liability immunity to manufacturers, distributors, and state-licensed health professionals authorized to prescribe, administer, or dispense covered countermeasures.

In Estate of Joseph Maglioli, et al. v. Andover Subacute Rehabilitation Center I, et al. and Estate of Wanda Kaegi, et al. v. Andover Subacute Rehabilitation Center I, et al., the plaintiffs alleged the defendants were liable for failing to observe a wide range of appropriate COVID-19 safety precautions, including failing to properly administer and utilize personal protective equipment (PPE) to prevent the spread of the virus. The plaintiffs did not sue any manufacturer or distributor and did not assert any products liability cause of action.

The defendants removed the cases to the District of New Jersey on the basis that PREPA, a federal statute, preempts the plaintiffs’ state law claims thus presenting a federal question. The defendants stated that they are immune from liability “with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure,” including PPE during a health emergency. The plaintiffs moved to remand the cases by arguing that the defendants do not fall within the scope of PREPA, in that the claims are not directed against the defendants’ role in the manufacturing, distribution, administration, or use of a covered countermeasure.

The District Court remanded the cases, holding that PREPA does not apply to an alleged failure to administer covered countermeasures such as PPE, but instead applies only to the use of such covered countermeasure. The District Court stated that PREPA “is designed to protect those who employ countermeasures, not those who decline to employ them.” The District Court noted that it was not deciding whether the defendants could ultimately assert a defense based on PREPA, only that the plaintiffs’ state-law claims did not fall within the preemptive scope of PREPA and does not mandate an exclusive federal forum.

While this holding is not directed to manufacturers, distributors, or retailers of covered countermeasures, it is significant because it affirms the language and purpose of PREPA, which is to provide an exclusive federal forum for manufacturers, distributors, and retailers to assert PREPA’s civil liability immunity protections from any claim under federal or state law for damage caused by or arising out of the use of pharmaceuticals, biologics, and medical devices to combat the COVID-19 pandemic.

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Author: The Covid-19 Channel