Asking the U.S. Court of Appeals for the Seventh Circuit to affirm a district court ruling that the Public Readiness and Preparedness (PREP) Act does not completely preempt or displace a cause of action under the Illinois Nursing Home Care Act, CCL argued that the 2005 federal statute attempted to encourage the use of pandemic countermeasures and created immunity from liability when used. Here, however, the nursing home failed to use the countermeasures and cannot claim liability protections from the PREP Act.

     The case arises from the death of a nursing home resident. The lawsuit alleges that the nursing home failed to take basic safety measures to protect the decedent from COVID and worked against the residents' health by instructing staff to come to work, even if they had COVID symptoms. Once exposed, the decedent passed away quickly. 

     The defendant first argued that the case belongs in federal court because it was acting as a federal agent in helping address the COVID-19 pandemic. However, as the CCL brief shows, the nursing home had no contract or other indicia that it was working with the federal government. Instead, it attempted to comply with federal regulations -- and regulatory compliance does not transform a private party into a federal agent.

     The defendant then argued the PREP Act completely preempted the state cause of action, transforming it into a federal one. However, to do so, CCL explained, the PREP Act had to apply to the case. It doesn't because it does not cover the non-use of countermeasures.

      Finally, the defendants cursorily argued that the state cause of action was based on a violation of federal law, making it federal in nature. Yet, where the federal law does not apply, CCL said, it cannot be based on federal law.

     The defendant next has an opportunity to file a reply brief. The case is Martin v. Petersen Health Operations.