Swanholt Quoted in Northern California Record About Application of the PREP Act

Partner Erik Swanholt was quoted in the Northern California Record article, “Federal authority provides some liability immunity in the fight against COVID-19, but not all-encompassing,” about the application of the Public Readiness and Emergency Preparedness Act, which grants immunity to certain entities in the fight against the COVID-19 pandemic. The act provides liability immunity to certain medical countermeasures except in cases of willful misconduct, but it doesn’t apply automatically.

“For some companies yes, for others no. The PREP Actis designed to shield companies from tort liability, including products liability, if those companies qualify as ‘covered persons’ and if those companies are providing ‘covered countermeasures’ pursuant to a federal contract or authorization from an ‘authority having jurisdiction.’  Many companies fit these criteria while some do not,” Swanholt said.

“For companies who cannot check all of these boxes, particularly the third one, that nevertheless want to help, they want to repurpose manufacturing capabilities to build PPEs (Personal Protective Equipment) for example, there can be exposure to litigation. In that regard, the Declaration/PREP Act does not go far enough as there are willing and able entities out there that can help and that should not face litigation exposure simply because they do not have a federal contract or other authority; particularly where obtaining authorization during a pandemic can be difficult as the authorities having jurisdiction are quite busy.”