40 Trial Lawyer • Winter 2023 were not harmed by the use of covered countermeasures. They were harmed by Foster Creek’s failure to employ the countermeasures that were available to them. In the last days of the Trump administration, on December 9, 2020, HHS i s sued i t s f i r s t o f s eve r a l Amendment s to the PREP Ac t , attempting to expand and explain the immunity protections in COVID-19 cases . In the Amendment , HHS interpreted the statutory language “relating to” the administration of covered countermeasures to include some situations where not administering a covered countermeasure could fall within the PREP Act’s protection. However, it seemed to be focused on inactions like prioritization and used vaccine administration as its example. If you recall, this was exactly the time when vaccines were first starting to become available. In this context, it makes sense that HHS was concerned about “prioritization or purposeful allocation” of a covered countermeasure, “particularly if done in accordance with a public health authority’s directive” as it explained in Section IX, Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act of Medical Countermeasures Against COVID-19 and Republication of the Declaration, 85 Fed. Reg. 79190, 79194 (Dec. 9, 2020). HHS also issued Advisory Opinion 21-01 on January 8, 2021 which included “anything relating to the administration of a covered countermeasure” including the failure to act. The amendments and advisory opinion were used by the defendants to argue that PREP Act Immunity could extend to claims involving the failure to use a covered countermeasure. However, the court was unpersuaded by this argument, noting that HHS opinions are not binding on courts. Second, the defendants’ motion for removal was based on a complete preemption theory. If you’re rusty on preemption, this is the doctrine that provides that some federal statutes substitute a federal cause of action for the state ones.1 Notably, the PREP Act doesn’t provide federal causes of action. When it applies, the only remedy is compensation from the CICP or a cause of action for “death or serious injury proximately caused by willful misconduct.” 42 U.S.C. §§ 247d-6d(d)(1). It was our position that willful misconduct claims could not replace the Oregon wrongful death, elder abuse and negligence claims that we asserted for our clients. While we had briefed this issue in our case in federal court, defendants had simultaneously claimed the same defense in a companion case before a different federal judge. In the ruling from that case, Chief Judge Hernandez concluded the PREP Act’s willful misconduct theory was a “narrow path” and not a “substitute for plaintiff’s state law negligence claims and does not warrant a finding that the limited exception of complete preemption applies to the PREP act.” Parker v. Saint Jude Operating Co., LLC No. 3:20-CV-01325HZ, 2020 WL 8362407 (D. Or. Dec. 28, 2020). Judge Hernandez remanded Parker to theMultnomah County Circuit Court, and, shortly thereafter, our motion to remand was granted. Nearly every federal court that has considered PREP Act removal motions has reached a similar conclusion, rejecting the idea that the PREP Act is a complete preemption statute. Since this decision, many courts have followed suit. The U.S. Court of Appeals for the Ninth Circuit considered the impact of both the Amendment and Advisory Opinion in Saldana v. Glenhaven Healthcare LLC. 27 F.4th 679 (9th Cir. 2022) and declined to find that the PREP Act completely preempted state law claims of elder abuse, negligence, wrongful death and willful misconduct in COVID-19 cases. Other appellate courts have followed suit — the Third Circuit, Fifth Circuit, Seventh Circuit, and Eighth Circuit — and have rejected similar claims and arguments. See Stenson v. Lodi Skilled Nursing Servs. Inc., No. 222CV00222KJMJDP, 2022 WL 1625072, at *2 (E.D. Cal. May 23, 2022) (summarizing and listing circuit court cases). Taking on new causes against powerful industries often means you must keep a lookout for all the different tactics that defendants and the industries they represent will employ to defeat your case. Immunity was just one form of an attempted cover-up. Since that fight against immunity on multiple fronts, we are still carrying on with our clients’ cause in state court. It has now been over two years and we are in the midst of responding to a second set of ORCP 21 motions. At the same time, we are battling to obtain discovery, so we can shed light on the systemic failures at a deadly nursing home. Bonnie Richardson is the managing partner at Richardson Wang LLP where she specializes in representing people who have been harmed by institutions of power. Richardson contributes to OTLA Guardians at the Guardians Club level. Her office is located at 805 SW Broadway, Ste. 470, Portland, OR 97205. You can reach her at bonnie@richardsonwang.com or 503-5464637. 1 For more on preemption, see Retail Property Trust v. United Brotherhood of Carpenters and Joiners of America where a union protest at a mall spawned nuisance and trespass claims that were later removed to federal court. 768 F3d 938 (9th Cir. 2014). Ultimately the Ninth Circuit stated that while some statutes do completely preempt state law claims by replacing all available state causes of action, thus exclusively providing a federal cause of action, this one didn’t because it was not so broad as to completely replace the state law theories at issue. ...so we can shed light on the systemic failures at a deadly nursing home. COVID-19 Litigation Continued from p 39
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