ALF Urges Supreme Court To Decide Whether COVID Liability Suits Are Removable To Federal CourtSeptember 14, 2022
The pending certiorari petition in Glenhaven Healthcare LLC v. Saldana, No. 22-192, presents an important and frequently recurring question that has enormous implications for public health as well as civil justice: Whether COVID-19-related personal-injury and wrongful-death suits, which implicate the immunity-from-suit-and-liability provision and additional legal protections expressly afforded to healthcare facilities and workers by the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e, are removable from state to federal court.
The PREP Act’s overarching objective is to facilitate a unified, whole-of-nation response to public health emergencies such as the COVID-19 pandemic by providing broad protection from litigation and liability for healthcare facilities (e.g., hospitals; nursing homes; assisted living facilities), healthcare workers (e.g., physicians; nurses; emergency responders), and other “covered persons” in connection with administration or use of “covered countermeasures” (e.g., diagnostic devices and procedures; exposure mitigation measures; therapeutics; vaccines). This goal cannot be achieved if the statute’s sweeping immunity from suit-and-liability provision, § 247d-6d(a)(1)—or its narrow exception, a carefully delineated, exclusively federal, cause of action for willful misconduct, § 247d-6d(d)—are subject to myriad state courts’ conflicting or inconsistent interpretations. Instead, uniform interpretation of the PREP Act is needed. Removal of any and all state-court liability suits that implicate (or may implicate) the PREP Act promotes uniformity of decision, and in turn, confidence that the statute’s litigation and liability protections will be enforced.
Importantly, rather than eliminating recourse for covered individuals who are injured or killed as a result of administration or use of PREP Act-covered countermeasures, the statute establishes a no-fault compensation fund for medical expenses, lost employment income, and survivor benefits. See § 247d-6e.
Despite the broad immunity from suit and liability provided by the PREP Act, almost 1,100 COVID-19-related state-court personal injury or wrongful death suits have been filed around the United States, mostly against nursing homes and other healthcare facilities. Efforts to remove these suits to federal court based on the PREP Act’s litigation and liability protections have been unsuccessful. All four federal courts of appeals that have addressed the removal issue (3rd, 5th, 7th, and 9th) have held that neither the “complete preemption doctrine” nor any other legal principle allows these state-court liability suits to be removed to federal district courts. As a result, unless the Supreme Court intervenes, interpretation and application of the PREP Act, which is intended to foster a “unified, whole-of-nation response” to public health emergencies, will be left up to 50 separate state-court systems.
ALF Amicus Brief
On behalf of the Atlantic Legal Foundation, I have filed an amicus brief urging the Supreme Court to grant certiorari in Saldana and address the removability issue because public health, as well as civil justice, is at stake. Liability suits that implicate the PREP Act belong, if anywhere, in federal, not state, court. Removal is needed to promote uniform interpretation and application of the PREP Act’s immunity-from-suit-and-liability provision and additional legal protections. Healthcare facilities and workers will be deterred from volunteering for essential, frontline duty during public health emergencies if they are subjected to the threat of being haled into the very type of state-court liability suits that the PREP Act expressly and unequivocally prohibits.
Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.