Cannon v. Watermark Retirement Communities, Inc.

In May 2020, Anne Jean Cannon died of a cardiac event and COVID-19 at a Pennsylvania assisted living facility called Blue Bell Place, which is owned and operated by Watermark Retirement Communities. Mrs. Cannon’s survivors sued the nursing home, bringing Pennsylvania law claims based on a pattern of abuse and neglect over the four months Mrs. Cannon spent in the facility, including failures to protect Mrs. Cannon from falling, to provide assistance with basic daily tasks, to prevent physical abuse, and to provide adequate medical care. They also alleged that the facility administered an experimental treatment—hydroxychloroquine—to Mrs. Cannon without consent and although the FDA had not authorized the use of hydroxychloroquine to treat patients who, like Mrs. Cannon, were not hospitalized.

Watermark filed a motion to dismiss, arguing that all the claims were barred by the Public Readiness and Emergency Preparedness (PREP) Act. The PREP Act, which was enacted in 2005 to encourage the production and distribution of vaccines, creates an administrative remedy for claims relating to the “administration or use” of certain “covered countermeasures.” The federal district court in Pennsylvania denied the motion, holding that the use of hydroxychloroquine outside the scope of the FDA’s emergency use authorization was not covered by the PREP Act’s immunity provisions. Watermark appealed that decision to the D.C. Circuit, on the theory that a provision of the PREP Act authorizes interlocutory appeals to the D.C. Circuit from any district court in the country that rejects a defense based on the PREP Act.

Public Citizen represents the Cannon family on appeal. The appellate brief explains that the DC Circuit does not have jurisdiction over Watermark’s appeal from a decision of the district court in Pennsylvania. In addition, on the merits, the brief explains, among other things, that the district court properly denied the motion to dismiss. Most of the claims have no connection to hydroxychloroquine or any covered countermeasure, and the PREP Act thus does not concern them. To the extent that claims or parts of claims are based on hydroxychloroquine, they were outside the scope of the Secretary of HHS’s PREP Act declaration because the conditions set forth concerning means of distribution and administration were not met here.