Those of you following the fortunes of COVID-19-related litigation should check out these two recently decided cases:  Garcia v. Welltower OpCo Group LLC, 2021 WL 492581 (C.D. Cal. Feb. 10, 2021), and Fields v. Brown, 2021 WL 510620 (E.D. Tex. Feb. 11, 2021).

Garcia, the older of the two (by one day), addressed the ability of the PREP Act, 42 U.S.C. §§247d-6d, et seq., to create federal question jurisdiction in nursing home litigation over the alleged rationing of anti-COVID “covered countermeasures” in cases where there is no diversity of citizenship.  Regular readers will remember our post last December about the Department of Health & Human Services (“HHS”) declaration that significantly expanded PREP Act immunity to, inter alia, cases alleging failure to employ such countermeasures.  Garcia involved such allegations.  2021 WL 492581, at *1-2.  Even though there was no diversity of citizenship, the “senior living” defendants removed to federal court on the ground that PREP act immunity created federal question jurisdiction.  Id. at *2.

Plaintiffs in Garcia argued the PREP Act immunity did not apply to “negligence claims unrelated to vaccine administration and use.”  Id. at *4.  They also asserted that “fail[ure] to adhere to infection control protocols . . . do[es] not receive PREP Act immunity.”  Id. at *5.  Both contentions failed.  Contrary precedent preceded, and thus could not have considered, more recent HHS declarations expanding the scope of PREP Act immunity.

[E]ach of these cases precedes more recent guidance from [HHS] which suggests that when a party attempts to comply with federal guidelines – in this case, concerning the COVID-19 pandemic – the PREP Act would provide complete preemption. . . .  [A]s recently as February 2, 2021, a court within this district found that the PREP Act does not provide for complete preemption.  However, it is not clear from that order if [that] court even considered the [more recent] Advisory Opinion. Therefore, the Court declines to defer to that decision.

Id. at *6 (citations omitted).  “That the Advisory Opinions are not binding law or formal rules issued via notice and comment does not render them irrelevant.”  Id.  Decisions imposing a “black and white” distinction between “use or non-use of a covered countermeasure” were erroneous – as pointed out by HHS – because they ignored “the plain language of the PREP Act, which extends immunity to anything ‘relating to’ the administration of a covered countermeasure.”  Id. (citation and quotation marks omitted).  PREP Act immunity can be defeated only where the defendant did nothing at all, not where the adequacy of its COVID response is at issue.  Id. (exception only for “total inaction”).

For all of these reasons, Garcia held that the PREP Act was a “complete preemption” statute that created federal question jurisdiction.

While the Court acknowledges that certain allegations [in the complaint] relate to a failure to abide by local or federal health guidelines, those allegations related to momentary lapses. Taken as true, all [the complaint] discloses are possible unsuccessful attempts at compliance with federal or state guidelines – something which the PREP Act, the Declaration, and the January 8, 2021 Advisory Opinion cover. . . .  Therefore, because [HHS] stated that the PREP Act is a complete preemption statute, the Court finds that an adequate basis for federal question jurisdiction exists.

Id. at *9 (citations omitted).

Thus, should Garcia’s rationale prevail, just about all nursing home litigation involving alleged failure to use countermeasures in a way that could have prevented COVID infections will be heard in federal court – regardless of how many questionable, non-diverse defendants plaintiffs try to add.

Our second case, Fields, involves the application of federal question jurisdiction arising from the defendant “acting under” the authority of a federal officer under 42 U.S.C. §1442.  We suggested the defense counsel give that basis for removal another look last year in this post, which was about the Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020), decision – which is the precedent on which Fields turned.  Fields involved allegations about COVID infections in meat packing plants.  2021 WL 510620, at *1.  However, when COVID appeared to be posing a threat to the nation’s food supply, the government invoked the Patriot Act, and declared the defendant’s facilities to be “critical infrastructure.”  Id. at *2.

As defendants note, after this designation, [defendant plant owner] interacted with multiple government agencies, namely by being “in close contact with officials at the U.S. Department of Homeland Security and the U.S. Department of Agriculture regarding continued operations.” [It] also participated in a meeting between [the administration] and other food industry executives “to discuss the stability of the supply chain.”  Part of the collaboration between [owner defendant] and the federal government involved it working directly with the United States Food Safety and Inspection Service (FSIS).

Id. at *3 (record citations omitted).

This critical infrastructure designation meant that the owner defendant was subject to more than just general federal regulation.  Id.

[D]efendants here exhibited an effort to help assist, or carry out, the duties and tasks of the federal superior.  Defendants did so by working directly with the Department of Agriculture and the FSIS to guarantee that there was an adequate food supply.

Id. (citation omitted).  Indeed, Congress “allocated additional funding” to the relevant agency “to ensure that [it] had the resources to adequately supervise” facilities that had received the “critical infrastructure” designation.  Id.

Accordingly, the court now finds that, based on the critical-infrastructure designation, defendants were “acting under” the directions of federal officials when the federal government announced a national emergency.

Id. (footnote omitted).

Then, Fields judged the connection between federal oversight and the plaintiffs’ claims under the new, “more relaxed” standard discussed in Latiolis.  2021 WL 510620, at *4.  That step was relatively easy:

The purported act under color of federal authority is the decision to maintain operations despite the pandemic.  Naturally, the choice of what safety precautions should be taken . . . connects to the broader decision to keep the plant open during the pandemic in the first place.

Id.

Finally, step three – a “colorable” federal defense to the plaintiffs’ claims – was satisfied by defendants raising two forms of preemption:  (1) express preemption under meat inspection statutes, and (2) implied conflict preemption with governmental oversight under the Defense Production Act.  Id. at *4-5.  Defendants did not have to win preemption at this point; they only had to have a “plausible” basis for the defense, which they did.  Id. at *5.

Thus, should Fields’ rationale prevail, all COVID-related litigation over infections allegedly arising from meatpacking and other facilities designated as “critical infrastructure” during the pandemic would likewise be heard in federal court.

Between Garcia and Fields, precedent now exists for the exercise of federal jurisdiction over the vast majority of COVID-related personal injury litigation.