Buchanan Helps Secure the Country’s First Favorable Ruling under the PREP Act

PITTSBURGH – March 15, 2021 –  A California federal court recently issued a landmark decision involving the Public Readiness and Emergency Preparedness Act (42 U.S.C. § 247d–6d) (the "PREP Act"), marking the first favorable court opinion in the country confirming complete preemption of the PREP Act, as well as liability protections to senior living facilities from claims relating to COVID-19.

The legal defense team was led by Buchanan Ingersoll & Rooney and shareholder Amy Miller of Washington, D.C. on behalf of Sunrise Senior Living and other defendants.

In Gilbert Garcia et al. v. Welltower OpCo Group LLC, Sunrise Senior Living, et al., 20-02250JVS (C.D. Ca. Feb. 10, 2021), Gilbert Garcia was a resident of the defendants’ senior living facility during the COVID-19 pandemic.  The plaintiffs alleged that defendants employed a variety of measures, including purportedly ineffective measures, to combat COVID-19 at the facility.  When Mr. Garcia began to exhibit symptoms, he was tested for COVID-19, received a positive test result, and passed away in July 2020. 

The plaintiffs, as Mr. Garcia’s family members and representatives, filed the case in state court, bringing California state law claims of elder abuse and neglect, wrongful death, and intentional infliction of emotional distress.  The defendants removed the case to federal court based in part on complete preemption of the PREP Act, and the plaintiffs moved to remand the case back to state court.  At the same time, the defendants moved to dismiss the claims entirely based on complete preemption of the PREP Act and immunity of the defendants.  While there were additional factual and legal defenses to the allegations showing that the claims had no merit, the initial motion to dismiss focused on preemption and immunity.

U.S. District Court Judge James V. Selna of the Central District of California denied the plaintiff’s motion for remand, and granted the defendants’ motion to dismiss in its entirety.  Among the highlights of the court’s decision:

• Chevron deference was afforded to recent guidance from the Secretary of Health and Human Services (HHS) which affirmed that the PREP Act is a "complete preemption statute." OGC Advisory Opinion 21-01.
• The defendants were "covered persons" under the PREP Act by virtue of their status as "program planners" under the PREP Act, as they supervised and administered covered countermeasure programs to combat COVID-19.
• The plaintiffs’ injuries arise out of, relate to, or result from the administration or use of covered countermeasures by covered persons under the PREP Act, including symptom checking, use of personal protective equipment (PPE), and other covered countermeasures. See 42 U.S.C. 247d-6d(a)(1).
• Even failure to act, and other types of omissions alleged by the plaintiffs can be covered by the PREP Act. "[D]ecision-making that leads to the non-use of covered countermeasures by certain individuals is [] the grist of program planning and is expressly covered by the PREP Act." OGC Advisory Opinion 21-01. 
• The plaintiffs’ claims, taken as true, are "possible unsuccessful attempts at compliance with federal or state guidelines – something which the PREP Act, the Declaration, and . . the Advisory Opinion cover." 
• For these reasons, PREP Act immunity applies to the defendants.

The plaintiffs recently appealed the case to the United States Court of Appeals for the Ninth Circuit, and briefing is expected to begin in May 2021.  In the meantime, this decision remains a compelling and important development in the growing body of caselaw interpreting the PREP Act.

"This decision reinforces the intent of the PREP Act, which is to protect workers who care for others during times of national emergency.  Workers must be able to do so without fear or risk of liability; otherwise businesses may be forced to close their doors rather than risk liability." said Amy Miller.