Personal Injury and the PREP Act: Asserting Immunity and Understanding Its Limitations

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, February 24, 2021

Recorded event now available

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This CLE course will guide personal injury attorneys--whether for plaintiff or defendant--through workings of the Public Readiness and Emergency Preparedness Act (the PREP Act), the four subsequent interpretive advisories, and the developing case law. With future massive public health emergencies almost certain to occur, both plaintiff and defense counsel should understand how the PREP Act works, whether all state law claims are preempted, whether invocation of the PREP Act triggers federal question jurisdiction, when and how immunity is invoked, and the precise scope of the immunity available to which defendants and for what acts.

Description

Individuals who have become sick from COVID or COVID vaccines, or who are otherwise harmed when individuals and entities administer COVID countermeasures, and decedents' survivors and estates are expected to pursue compensation based on the alleged acts or failure to act of others. In doing so, they will have to address the defenses and immunities in the PREP Act.

The PREP Act authorizes the Secretary of Health and Human Services to unilaterally immunize certain government and private actors from suit and legal liability related to "countermeasures" during a declared public health emergency.

But like all other laws promising immunity, counsel must parse the actual language of the statute and related declarations and advisories to truly understand the precise scope of the immunity, to which defendants it is available, and for what acts. Moreover, although the PREP Act has been on the books since 2005, only now has a discreet body of case law informed future litigants on how the PREP Act may apply to claims related to COVID-19.

Listen as our panel discusses what must be alleged and proved to recover for tort claims, such as negligence or medical malpractice, and how much protection exists.

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Outline

  1. What is PREP?
    1. Covered countermeasures
    2. Covered persons
    3. When is immunity triggered?
  2. Limits of immunity
  3. Recent case law
  4. Federal Jurisdiction and Preemption
  5. Extraterritorial application outside the U.S.
  6. Countermeasures Injury Compensation Program

Benefits

The panel will review these and other key issues:

  • What categories of defendants are eligible for immunity?
  • What types of activities will trigger immunity?
  • Is immunity available for both affirmative use of mitigations and failure to use any measures, both, or neither?
  • Are there degrees of immunity or protection?
  • Does the PREP Act preempt all state statutes, and if so, which ones?
  • Does the PREP Act provide federal question jurisdiction?
  • How do immunity statutes impact insurance coverage of the defendant?

Faculty

Adams, Nathan
Nathan A. Adams, IV
Partner
Holland & Knight

Mr. Adams is a partner practicing in complex commercial and appellate litigation and regulatory compliance. His...  |  Read More

Coleman, Jesse
Jesse M. Coleman
Partner
Seyfarth Shaw

Mr. Coleman assists clients with breach of contract and general business tort litigation. He has handled numerous trade...  |  Read More

Swanholt, Erik
Erik K. Swanholt
Partner
Foley & Lardner

With more than 20 years of experience as an adviser, litigator and trial lawyer for Fortune 500 companies and start-ups...  |  Read More

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