First Decisions Limit PREP Act Immunity In Coronavirus Context

When we discussed the Public Readiness and Emergency Preparedness (PREP) Act earlier this year, we predicted that its tort liability protections would reassure manufacturers and distributors of novel COVID-19 drugs and medical products. So far, so good: the first court decisions interpreting PREP Act immunity in the COVID-19 setting have emphasized that the protection applies to those who actually use medical countermeasures, not where injuries arise from parties not using countermeasures. By extension, these cases establish that certain negligence claims may escape the scope of PREP Act immunity and can be properly heard in state court—even if those claims are related to COVID-19.