Supreme Court considers immunity for COVID liability

The federal government and the state of Missouri passed laws during COVID-19 pandemic meant to protect businesses and health care providers from civil liability. A case in the Missouri Supreme Court could help determine how far that immunity extends.

The court heard arguments on Dec. 13 stemming from the death of a woman at the Clinton Healthcare and Rehabilitation Center at the height of the pandemic. In November 2020, Mary Gray, who had been at the facility since 2018, was exposed to COVID-19 by her roommate. She died Nov. 30, 2020.

Gray’s daughter, Donna S. Yarnell, filed a wrongful death suit in Henry County Circuit Court against the nursing home’s operator, Clinton No. 1. Judge Brandon Baker allowed the suit to proceed despite the company’s request that it be dismissed, prompting Clinton to seek a writ from the Supreme Court.

The nursing home claimed it was immune from suit under the federal Public Readiness and Emergency Preparedness Act and two state statutes — the Missouri Emergency Management Act, which governs emergencies declared by the governor, and the Missouri COVID-19 Liability Protections Act, which passed in 2021 as the pandemic was coming to an end.

The argument focused mainly on the PREP Act, which applies to claims “caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure,” such as a diagnostic test or vaccine. Teresa Tomlinson of Hall Booth Smith in Atlanta, Georgia, who represented Clinton, argued that the federal law’s broad language covers her client’s facility, which had tested residents and quarantined them as needed.

“Any claim for loss that has a causal relationship with the management and operation of a countermeasure program or facility is covered and barred by that statute,” she said.

But Adam Pulver of the Public Citizen Litigation Group in Washington, D.C., who argued for Yarnell, argued that the plaintiff’s injury must stem from the countermeasure.

“It’s the injury that must have the causal relationship, not just what happened in the effort,” he said.

Judge W. Brent Powell — the only judge who asked questions during the argument — pressed Pulver on the statute’s wording.

“It doesn’t say ‘caused,’” Powell said. “It says ‘relating to.’” Pulver responded that other portions of the statute make the causal requirement clear.

In a brief, the plaintiff argued that dozens of courts across the country have considered similar claims and found no immunity for nursing facilities. The defendant, however, responded that those cases shouldn’t be followed because they ignored the “management and operation” of countermeasure programs language in the statute.

Tomlinson also argued that the two Missouri laws provide immunity, though it’s not clear that the state’s recently passed COVID liability law applies. That statute was not effective until Aug. 28, 2021 — nine months after Gray died, and nine days after the suit was filed.

Tomlinson urged the court to apply the law retrospectively, arguing that it would otherwise leave providers with fewer protections.

“This case is very important, not just to those who participated in the state’s response to the pandemic but, God forbid, the next one,” she said in her conclusion. “Thrice, legislatures have said that they intend for the private resources they call upon in emergencies to respond and aid the government beyond its capacity. Clinton respectfully asks that they be provided the protections they are entitled to and that they provided in the ‘darkest days of this state,’ to use the governor’s words.”

The case is State ex rel. Clinton No. 1 Inc. v. Baker, SC100099.