Legal Immunity and COVID-19–Controversy Continues

Earlier this month, we wrote about the looming debate over legal immunity against certain types of claims in lawsuits arising out of the COVID-19 crisis. On May 15, 2020, the New York Times published an opinion piece editorializing against the prospect of immunity from certain types of suits being contemplated by the Senate. Like many of the opponents of immunity, the Times fear-mongers, raises straw-man opposition, and is unmoored from the reality of what really happens in civil litigation, and will happen here. The headline…
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PREPA Extends Liability Immunity to Manufacturers of Component Parts and Suppliers of Raw Material Suppliers Used in COVID-19 Countermeasures

With the COVID-19 outbreak spreading across the globe, there is a shortage of critical medical supplies such as ventilators, test kits, and personal protective equipment (PPE). Component part manufacturers and raw material suppliers have scaled up production to help medical device and pharmaceutical manufacturers eliminate critical shortages. Components and raw materials are also being supplied to non-medical companies like General Motors, Tesla, and Dyson, who have repurposed their factories to make unfamiliar products like ventilators and face shields. To head off the inevitable wave of…
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COVID-19 and the Heeding Presumption

Much has been written about the so-called “heeding presumption,” which allows a fact-finder to presume, in a failure-to-warn case, that a plaintiff would have heeded an adequate warning if one had been provided. When applied, the heeding presumption obviates the need for the plaintiff to introduce evidence to prove that she or he would have followed the warning that the defendant is alleged to have failed to give. Life science companies and the attorneys who defend them in failure-to-warn cases are well-acquainted with this doctrine…
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What are the Reported Risks with Disinfectants Containing Quaternary Ammonium Compounds (QACs or quats)?

You may recall our recent post “Are We Going to Clean Ourselves Sick” where we discussed the increased use of cleaning and disinfecting products along with the rise in exposures reported to the National Poison Data System. We also discussed a Consumer Reports article warning of some risks reportedly associated with Quaternary ammonium compounds (QACs or quats). Sanitizing and disinfecting agents seem to be in greater demand these days than ever before—at least more than this author can ever recall. This is evidenced…
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New York’s Governor Cuomo Criticized for Handling of Nursing Homes During Pandemic

This week, New York State reported almost 5,000 nursing home residents in the state have died from COVID-19 since March 1. New figures released reported that more than 2,300 nursing home residents have died and another 2,500 are presumed to have died from the virus. The data regarding COVID-19 fatalities from New York State is available here. The amount of deaths is reportedly five times the number deaths related to the virus in all of Washington State. As expected, Governor Cuomo, who has been…
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Legal Immunity and COVID-19 Recovery: Thorny Issues Abound

Want to start an argument? Start talking about COVID-19 immunity for people and companies. Anywhere in the nation. In Congress. In state legislatures and governor’s chambers. In hospitals and nursing homes. Indeed, even perhaps in your home. My goodness, people start talking past each other. Heartless companies who do not care about their customers or workers, they say. What? Greedy trial lawyers, they retort (no pun intended). Obviously, we are not talking here about viral (or herd) immunity, but legal immunity. Baby steps of limited…
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Liability Immunity Now Extended to Manufacturers of Any NIOSH-Approved Respirator Used as a COVID-19 Countermeasure, Including Those Not Intended for Medical Applications

As the COVID-19 pandemic stresses the U.S. health care system, personal protective equipment such as personal respirators are in desperately short supply. Healthcare providers are repurposing respirators originally designed for non-medical use to combat the COVID-19 pandemic. This practice raises the question as to whether manufacturers of non-medical respirators qualify for liability immunity under the Public Readiness and Emergency Preparedness Act (PREPA). We previously wrote about PREPA and the March 17, 2020 declaration by the Secretary of Health and Human Services providing liability immunity to…
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COVID-19, Duty to Warn, and Potential Product Misuse

Under the law of most, if not all, U.S. jurisdictions, product manufacturers are required to provide product-related warnings associated with foreseeable uses of their products. The law in most of these jurisdictions also extends the duty to warn to reasonably foreseeable misuses of a company’s products. But, generally speaking, misuses that are not reasonably foreseeable do not require a warning – product manufacturers are not required to dream up and warn against every theoretical possible misuse of their products. While the duty to warn with…
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Are We Going to Clean Ourselves Sick?

It wouldn’t be going out on the proverbial limb to say that people are using all sorts of cleaning and disinfecting products with significantly greater frequency and regularity than they have at any other time in history. The Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report for April 20, 2020 contains the article, “Cleaning and Disinfectant Chemical Exposures and Temporal Associations with COVID-19.” This article describes an analysis of data from exposures reported to the National Poison Data System and…
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New York’s Emergency Disaster Treatment Protection Act Provides Broad Immunity for Hospitals and Nursing Homes Related to Treatment of COVID-19 Patients and Other Residents

On March 25, 2020, New York’s Department of Health issued an Advisory to nursing home administrators, hospital discharge planners and others regarding nursing homes pertaining to the expedited receipt of residents returning to nursing homes from hospitals. The Advisory prohibited nursing homes in New York from denying admission or re-admission to a resident based upon a confirmed or suspected positive COVID-19 diagnosis. The full text of the Advisory is available here. The Advisory was of great concern to nursing home administrators and owners, who were…
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