D.C. Circuit Won’t Review Out-of-Circuit Decisions Denying Nursing Homes’ Bid for PREP Act Immunity
- August 12, 2022
The D.C. Circuit rejected August 9 interlocutory appeals of two out-of-circuit district court decisions that refused to dismiss negligence actions against defendant nursing homes brought by the estates of residents who died from COVID-19 based on immunity under the federal Public Readiness and Emergency Preparedness (PREP) Act.
In so holding, the appeals court concluded that the PREP Act only confers interlocutory jurisdiction on the D.C. Circuit from orders of the U.S. District Court for the District of Columbia (D.D.C.) denying motions to dismiss or for summary judgment in willful misconduct cases. The D.C. Circuit therefore dismissed both appeals.
Once invoked, the PREP Act provides sweeping immunity for all claims of loss causally connected to the administration or use of covered countermeasures, such as drugs, devices, and vaccines, by “covered persons.” The Department of Health and Human Services Secretary triggered the PREP Act in March 2020 in response to COVID-19.
In two separate actions, plaintiff estates sued Watermark Retirement Communities, Inc. and Fair Acres Geriatric Center, respectively, asserting various state law claims including negligence and gross negligence.
One case involved a resident with COVID-19 who died shortly after being administered hydroxychloroquine by Blue Bell Place, a Pennsylvania senior living community operated by Watermark, against her legal proxy’s express wishes. Watermark moved to dismiss the complaint asserting PREP Act immunity, but the court refused, finding that the short-lived emergency use authorization for hydroxychloroquine was limited to patients who were hospitalized with COVID-19. Because the resident was not hospitalized, the administration of the treatment was not a “covered countermeasure,” the court found.
The other case involved a resident of Fair Acres who died from complications of COVID-19. Plaintiffs argued that Fair Acres was negligent in keeping the resident in the same room as another resident who was exhibiting COVID-19 symptoms. Plaintiffs alleged Fair Acres was negligent for, among other things, failing to ensure the proper use of personal protective equipment (PPE) and social distancing.
Fair Acres moved to dismiss based on PREP Act immunity, arguing the test used to diagnose the resident and his roommate and the non-use of PPE related to the use of covered countermeasures. In line with other decisions on the issue, a Pennsylvania federal district court determined that social distancing or quarantining were not covered countermeasures under the PREP Act. It also found the administration of the COVID-19 test lacked a causal relationship to the resident’s death.
Defendant nursing homes appealed the denials of PREP Act immunity to the D.C. Circuit.
The PREP Act includes a limited exception to the broad grant of immunity for “an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.” The PREP Act spells out a specific procedural path for plaintiffs bringing a willful misconduct claim against a covered person, including that the action be filed in the D.D.C. The Act also provides for “interlocutory appeal” to the D.C. Circuit “within 30 days of an order denying a motion to dismiss or a motion for summary judgment based on an assertion” of PREP Act immunity.
Plaintiffs argued that the Act’s provision for interlocutory appeal only applied to willful misconduct cases brought in D.D.C. pursuant to the immunity exception. According to defendants, however, the provision also authorized immediate appeal from orders by any court that allows a claim to proceed over a defendant’s PREP Act objection.
The D.C. Circuit agreed with plaintiffs and held that it lacked appellate jurisdiction, holding that interlocutory appeal is only available for the subset of cases involving willful misconduct claims excepted from PREP Act immunity.
“Defendants’ reading would grant this court an unprecedented and impracticable supervisory role that the statute does not support,” the D.C. Circuit said.
Cannon v. Watermark Retirement Communities, Inc., Nos. 21-7067 and 21-7096 (D.C. Cir. Aug. 5, 2022).