explaining that entitlement to immunity from suit “is effectively lost if a case is erroneously permitted to go to trial” because the party entitled to such immunity “cannot be ‘re-immunized’ if erroneously required to stand trial or face the other burdens of litigation”
How later courts described this case
- explaining that entitlement to immunity from suit “is effectively lost if a case is erroneously permitted to go to trial” because the party entitled to such immunity “cannot be ‘re-immunized’ if erroneously required to stand trial or face the other burdens of litigation”
Written by the judges who cited it.
The opinion
FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D22-2971
LT Case No. 2021-CA-000611-A
_____________________________
CITRUS MEMORIAL HOSPITAL
INC. d/b/a CITRUS MEMORIAL
HOSPITAL,
Petitioner,
v.
MARLA IANNELLI and TONY
GAINEY,
Respondents.
_____________________________
Petition for Certiorari Review of Order from the Circuit
Court for Citrus County.
Carol A. Falvey, Judge.
Michael R. D’Lugo and Raymond T. Watts, of Wicker Smith
O’Hara McCoy & Ford, P.A., Orlando, for Petitioner.
Thomas S. Harmon, of Harmon Parker, PA, Tampa, for
Respondents.
November 9, 2023
PER CURIAM.
DENIED.
EISNAUGLE and KILBANE, JJ., concur.
MAKAR, J., concurs in result with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., concurring.
Citrus Memorial Hospital, Inc., petitions for review of the trial
court’s order denying it immunity from suit under the Public
Readiness and Emergency Preparedness Act (“PREP Act”). 42
U.S.C. §§ 247d-6d, 247d-6e (2023). The “Liability protections”
portion of the Act establishes immunity “from suit and liability
under Federal and State law” for claims of losses “caused by,
arising out of, relating to, or resulting from the administration to
or the use by an individual of a covered countermeasure[,]”
provided “a declaration [by the Department of Health and Human
Services] has been issued with respect to such countermeasure.”
Id. § 247d-6d(a)(1) (entitled “Targeted liability protections for
pandemic and epidemic products and security countermeasures”
(emphasis added)). Stated succinctly, hospitals and other specified
entities and persons have federal statutory immunity from suit
and liability for claims of patient injury arising from a drug, device,
or other “countermeasure” that the Department has specified in a
declaration addressing a public health emergency.
Pertinent to this case, the Department issued a declaration
based on the Covid-19 outbreak, setting forth the scope of covered
persons, countermeasures, and other required matters. See
Declaration Under the Public Readiness and Emergency
Preparedness Act for Medical Countermeasures Against COVID-
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19, 85 Fed. Reg. 15198 (Mar. 17, 2020). The Declaration also
recites that the “liability protections” in the Act are in effect; it
specifically says that the “liability protections” are the statutory
immunities provided by statute, i.e., immunity “from suit and
liability under federal and state law.” 85 Fed. Reg. 15199. In other
words, the Department’s intent is that full statutory immunity is
available, notwithstanding its use of the shorthand phrase
“liability protections.” The apparent reason for use of this phrase
to describe “immunity from suit and liability” is that the title of
the statute itself is “Liability protections,” as mentioned above.
The Act gives the Department broad authority to declare a
public health emergency and the countermeasures to be
manufactured, tested, developed, distributed, and administered.
See 42 U.S.C. § 247d-6d(b)(1)-(9). Nothing in the Act, however,
gives the Department the authority to decide whether to grant
immunity from suit, immunity from liability, or both. A
declaration of public health emergency triggers the “Liability
protections” of the Act, but the Department is powerless to provide
only one of those protections. That’s because the text of the Act
mandates that a covered person “shall be immune from suit and
liability under Federal and State law” for covered
countermeasures. Id. § 247d-6d(a)(1) (emphasis added). “And”
means both, making it plain that the Act’s immunities cannot be
subdivided or separated. See Maglioli v. All. HC Holdings LLC, 16
F.4th 393, 400–01 (3d Cir. 2021) (“When the Secretary makes such
a declaration, the covered individuals become immune from suit
and liability from claims related to the administration of a covered
countermeasure.”). A declaration controls the scope of the
countermeasures, and thereby the scope of situations in which
statutory immunity is required; a declaration, however, cannot
pick and choose which immunities to grant, effectively rewriting
the statute.
In this case, the Hospital seeks immunity from suit, as the
statute provides and the Declaration states. It has filed a petition
under Florida Rule of Appellate Procedure 9.030(b)(2), which
provides that certiorari jurisdiction exists in the district courts for
nonfinal orders that are non-appealable (i.e., not listed in rule
9.130, the nonfinal order rule). Certiorari jurisdiction, in turn,
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requires irreparable injury, which exists for claims asserting
immunity from suit. That’s because subjecting a party or agency to
a lawsuit for which they have statutory immunity from suit
constitutes irreparable harm. See Univ. of Miami v. Ruiz, 164 So.
3d 758, 763 (Fla. 3d DCA 2015) (noting that “[a] party typically
cannot invoke an appellate court’s certiorari jurisdiction based on
the denial of a motion to dismiss or a motion for summary
judgment[,]” but, for instance, when a motion for summary
judgment “hinges on the application of a complete statutory
immunity from suit” and it requires “a party entitled to that
immunity to continue litigating the suit,” it “constitutes
irreparable harm in and of itself”); see also Bank of Am., N.A. v. De
Morales, 314 So. 3d 528, 530 (Fla. 3d DCA 2020) (same); see also
Fuller v. Truncale, 50 So. 3d 25, 27−28 (Fla. 1st DCA 2010) (finding
that a petitioner whose motion to dismiss was denied would be
irreparably harmed by continued litigation because the asserted
judicial immunity would protect the petitioner from suit and “there
would be no way on appeal to redress the harm caused by
entangling him in litigation”). The “Liability protections” portion
of the PREP Act clearly establishes immunity “from suit and
liability,” thereby making certiorari review appropriate in this
type of case; rather than dismiss the case for lack of jurisdiction,
the merits of the Hospital’s petition must be reviewed and relief
granted or denied.
Just because certiorari jurisdiction exists to review a claim of
immunity from suit doesn’t mean a petitioner is entitled to
immunity from suit, only that a district court of appeal has
jurisdiction to review a trial court’s determination of whether
immunity from suit was established. Petitioners in this class of
cases are entitled to certiorari review because an erroneous trial
court ruling effectively defeats the whole purpose of immunity
from suit. James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA
2014) (“When the trial court denies a motion to dismiss on
immunity grounds, certiorari review of the non-final order is
proper because absolute immunity protects a party from having to
defend a lawsuit at all and waiting until final appeal would render
such immunity meaningless if the lower court denied dismissal in
error.”). In other words, statutory entitlement to immunity from
suit is forever lost if a case erroneously proceeds and a party
4
entitled to immunity from suit incurs the burdens of litigation.
Tucker v. Resha, 648 So. 2d 1187, 1189 (Fla. 1994) (explaining that
entitlement to immunity from suit “is effectively lost if a case is
erroneously permitted to go to trial” because the party entitled to
such immunity “cannot be ‘re-immunized’ if erroneously required
to stand trial or face the other burdens of litigation”).
Based on these principles, this court has certiorari jurisdiction
to consider the Hospital’s claim of immunity from suit. That said,
the Hospital has not demonstrated that the claim presented falls
within the scope of the countermeasures and activities that the
Department’s Declaration was intended to cover. To the contrary,
the claim of damages against the Hospital is not causally
connected to the administration or use of any drug, device or other
statutorily defined countermeasure. Instead, it is a garden variety
claim of medical negligence for the Hospital’s alleged failure to
prevent and treat pressure injuries of the type that can arise in
many situations; it is not causally connected to the ventilator’s use
in this case. No departure from the essential requirements of law
is shown. For these reasons, I concur in the denial of relief on the
merits.
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