We got our second anti-Covid jab this week, so we’ll celebrate by discussing a COVID/PREP Act case. The PREP Act (PREP stands for “Public Readiness and Emergency Preparedness”) declaration of immunity is limited to “covered countermeasures” obtained either through agreement with the federal government or otherwise in response to the COVID-19 pandemic. The purpose of PREP Act immunity was to incentivize the supply of goods needed to combat scourges such as the coronavirus.

In Avicolli v. BJ’s Wholesale Club, Inc., 2021 U.S. Dist. LEXIS 67096 (E.D. Pa. April 7, 2021), the covered countermeasure was hand sanitizer. Remember when hand sanitizer was hard to get? It was like liquid gold during the early days of the pandemic. Someone who had ample stores of hand sanitizer, toilet paper, and bread yeast was a Covid tycoon. We do not miss those days. Anyway, the plaintiff in Avicolli at some point saw fit to ingest the hand sanitizer and was injured. (Where oh where could the plaintiff have gotten that dumb idea?) The plaintiff filed a lawsuit against the manufacturer, distributor, and retailer for selling a defective product, failing to warn that the product contained methanol (wood alcohol), and negligence. The defendant retailer moved to dismiss the complaint on the ground of PREP act immunity.

The key issue in Avicolli was whether the product fell within the scope of PREP Act immunity. The court held that the retailer defendant, a store from which the plaintiff had obtained the hand sanitizer, had not established immunity as a matter of law, since the plaintiff’s pleading did not exclude the possibility that the plaintiff acquired the hand sanitizer before the pandemic began, and thus not in response to the pandemic.

The ruling went the plaintiff’s way because the plaintiff had not made the gargantuan mistake of pleading that the retailer obtained the hand sanitizer after the pandemic began. This case is yet another example of how, when it comes to pleading a case, sometimes less is more. But the truth will come out eventually, and if it proves to be the case that the hand sanitizer was purchased after Covid started, the retailer should prevail on summary judgment. It is all a matter of timing.

We cannot help but wonder if the Avicolli court’s rather crabbed interpretation of immunity is consistent with the goals of the PREP Act. What if the retailer obtained the hand sanitizer before the pandemic but sold it afterwards? Isn’t the selling what matters here? Isn’t the selling the thing to be encouraged?  We’re not aware of that much caselaw on this point (see our prior posts here and here). It seems to us that the Avicolli court was very worried about affording too much immunity, and not worried at all, and certainly not worried enough, about real world incentives.