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May 8, 2023

Absent Willful Misconduct, the PREP Act Does Not Provide Federal Subject Matter Jurisdiction

The US Court of Appeals for the Second Circuit recently issued a summary order upholding a decision from the US District Court for the Eastern District of New York finding that the Public Readiness and Emergency Preparedness (PREP) Act does not preempt a litigant’s state law claims of negligence, gross negligence, and negligent supervision. Practically, this means when a plaintiff asserts negligence claims against a non-diverse (in-state) defendant in the administration or use of countermeasures to diseases (e.g., COVID-19), arguments that the defendant was operating under the auspice of the PREP Act do not provide a basis for subject matter jurisdiction in federal court. 

The PREP Act allows the secretary of the US Department of Health and Human Services (HHS) to issue a PREP Act declaration providing immunity from liability (except for willful misconduct) for claims of loss caused, arising out of, relating to, or resulting from the administration or use of countermeasures to diseases, threats, and conditions. Most recently, a declaration under the PREP Act was issued protecting entities and individuals from liability for activities related to medical countermeasures against COVID-19.

In Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center,1 the defendant sought to remove a state court suit alleging that the defendant was negligent in the death of the plaintiff’s mother to federal court. The defendant argued that because it was operating under the HHS COVID-19 emergency declaration at the time, any claim related to the death must be litigated in federal court. 

The motion court disagreed. The PREP Act specifically allows for federal jurisdiction where claims of willful misconduct are alleged. In Rivera-Zayas, the plaintiff alleged that the defendant’s negligence, gross negligence, and negligent supervision contributed to her mother’s death. The plaintiff did not allege that the defendant’s willful misconduct contributed to her mother’s death. Therefore, the Second Circuit affirmed the decision and sided with the plaintiff, allowing the matter to proceed in state court. 

This is the second case in which the Second Circuit has addressed preemption of state law by way of the PREP Act. It is also the second time that the court has held that the PREP Act preempts state law only when a complaint explicitly alleges willful misconduct in an entity’s performance of activities related to medical countermeasures against COVID-19.

If you have any questions regarding the content of this alert, please contact C. J. Englert, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.

1Rivera-Zayas v. Our Lady of Consolation Geriatric, 2023 U.S. App. LEXIS 8827 (2nd Cir. 2023).
2See also Solomon v. St. Joseph Hospital, 62 F. 4th 54 (2d Cir. 2023). 


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