ALF Brief Argues That Covid-19 Negligence Suits Belong—If Anywhere—In Federal, Not State, Courts

The Covid-19 pandemic has spawned numerous wrongful death and personal injury suits. The vast majority of these suits, which allege negligence and malpractice on the part of hospitals, nursing homes, doctors, and other healthcare professionals, especially during the early months of the pandemic, have been filed in state courts. A key threshold issue is whether these suits, which purport to be based only on state law, nonetheless can be removed to federal court, especially in light of the Public Readiness and Emergency Preparedness Act (“PREP Act”). The PREP Act expressly provides immunity from suit and liability under both state and federal law for administration of “covered countermeasures” in connection with federally declared public health emergencies such as the Covid-19 pandemic. See 42 U.S.C. § 247d-6d(a)(1). The Atlantic Legal Foundation has filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to hold that Covid-19-related suits that implicate PREP Act immunity necessarily raise federal questions and therefore can be removed to federal district court.

Issue Areas:

Free Enterprise, Limited Government, Sound Science

Read the Amicus Brief:
Question(s) Presented:

Whether state-court wrongful death and personal injury suits that implicate PREP Act immunity from suit and liability are removable to federal district court.


Additional Background:

The PREP Act’s purpose is “encouraging the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, and use” of countermeasures needed to combat a public health emergency.  42 U.S.C. § 247d-6d(b)(1). To achieve this critical objective, the statute mandates that “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.”  Id.  § 247d-6d(a)(1) (“Liability protections”) (emphasis added).

To date, the only federal court of appeals decision on removability of Covid-19-related, state-court wrongful death or personal injury suits against medical facilities is Maglioli v. Alliance HC Holdings, 16 F.4th 393 (3rd Cir. 2021), pet. for reh’g filed Nov. 17, 2021. The Third Circuit affirmed a New Jersey district court’s remand of Covid-19-related wrongful death suits against nursing homes to state court. In so doing, the court of appeals rejected three asserted grounds for removal:  (i) the complete preemption doctrine, (ii) the federal officer removal statute, 28 U.S.C. § 1447(a)(1), and (iii) the federal question doctrine articulated in Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 348 (2005).

The Rivera-Zayas suit, remanded by the U.S. District Court for the Eastern District of New York to state court, presents to the Second Circuit the same removability issue that the Third Circuit addressed in Maglioli.

ALF’s Amicus Brief:

ALF’s amicus brief was co-authored by ALF Executive Vice President & General Counsel Larry Ebner and Brian Goldman of Holwell Shuster & Goldberg, LLP.  The brief argues that wrongful death and personal injury suits that implicate PREP Act immunity belong, if anywhere, in federal court, not state court.

More specifically, ALF’s amicus brief argues that the PREP Act, activated and implemented by a Declaration (as amended) issued by the Department of Health and Human Services, mandates a nationwide response to the Covid-19 pandemic. But a nationwide response cannot be achieved if each State can determine for itself  the scope and applicability of PREP Act immunity. Instead, doctors, nurses, and other healthcare professionals will decline to provide frontline public health emergency services where they are needed most if they are subjected to, or even threatened with, the very type of state-law liability that Congress intended the PREP Act to bar. For these reasons, no matter how carefully Covid-19-related wrongful death and personal injury suits are drafted to avoid federal law, they necessarily raise federal questions and therefore are removable.


In April 2023 the Second Circuit issued a summary unpublished order affirming the district court’s remand of the suit to state court.


Lawrence S. Ebner, Executive Vice President & General Counsel, Atlantic Legal Foundation

Date Originally Posted: December 28, 2021

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