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 represented the Cannon family on appeal. In addition to addressing the merits of the appeal, the appellate brief explained that the DC Circuit did not have jurisdiction over Watermark’s appeal from a decision of the district court in Pennsylvania. Agreeing with our jurisdictional argument, the D.C. Circuit issued an opinion dismissing Watermark’s appeal for lack of jurisdiction.