Providers hoping to hold onto broad liability protections crafted in the early days of the COVID-19 pandemic would do well to watch cases winding their way through the Fifth and Ninth Circuit Courts.

At issue in separate cases are jurisdiction of wrongful death suits brought in the COVID-era, as well as exactly what actions federal officials meant to protect when they instituted the Public Readiness and Emergency Preparedness, or PREP, Act.

The Fifth Circuit Court in New Orleans Monday appeared unlikely to counter previous rulings on whether COVID-19 wrongful death suits ultimately belong in federal court, but new interpretations could limit exactly when and how the PREP Act applies.

Judge Cory T. Wilson challenged the lawyer for a Texas nursing home to explain why the court should counter a standing Third Circuit ruling that found COVID lawsuits don’t have to be removed to federal courts.

In this case, however, a larger issue may be whether PREP was intended to cover all COVID situations or only those related to use of “countermeasures.” reported that a Public Citizen attorney for the plaintiffs argued that healthcare providers can’t use PREP to fend off claims that have nothing to do with covered countermeasures, such as vaccines.

His clients are claiming that the facility failed to implement proper infection control practices.

“There is no allegation in the complaint or in the notice of removal that any of the deaths of the 18 people who died at this nursing home was because of how a covered countermeasure was administered to or used by someone,” said plaintiff’s attorney Adam Pulver. “This statute is … designed to encourage the use of covered countermeasures, it is not to give you blanket immunity to decide whether or not you use covered countermeasures.”

Craig Conley

Craig C. Conley, a healthcare litigator with Baker Donelson, said the arguments made Monday largely echoed the Third Circuit case, known as the Maglioli case.

“The primary basis for rejection of the PREP Act is that that Act applies to the use of countermeasures rather than the failed use of countermeasures,” Conley told McKnight’s Long-Term Care News.  “The allegations are that the facilities failed to use certain countermeasures to prevent or reduce the spread of COVID.”

Conley suspects the Fifth Circuit will follow the Third Circuit and reject the nursing home’s arguments. He noted that there are similar appeals pending in nearly every federal circuit court.

“Most of these cases have received nearly uniform treatment in the district courts across the US where the cases have been remanded to state court. Given that, it is unlikely that a circuit court will split from the Third Circuit, including the Fifth Circuit in this matter,” Conley added. He is watching closely, however, a Ninth Circuit case where the district retained jurisdiction rather than remanding to state court. 

“That Court not only denied the motion to remand but also held that the PREP Act is a complete preemption statute and governs any conduct related to countermeasures,” he explained. That decision, known as Garcia, relied heavily on an early 2021 HHS Counsel Advisory Opinion and affirmed the PREP Act is a complete preemption statute and clarified the scope of the PREP Act relative to the ongoing pandemic.

“Based on Garcia, nursing home defendants could be successful in removing cases from state to federal court and defeat failure to act claims under the PREP Act,” he said. “Several district courts have declined to follow the logic of Garcia. So, that case deserves watching closely.”