## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

Case No. 5 D 2 2

- 2971 LT Case No. 2021

- CA

- 000611

- A

_____________________________

C ITRUS M EMORIAL H OSPITAL I NC

. d/b/a C ITRUS M EMORIAL H OSPITAL
,

Petitioner

,

v.

M ARLA I ANNELLI and T ONY G AINEY
,
Respondents

.

_____________________________

Petition for Certiorari Review of Order from the Circuit Court for Citrus County. Ca rol 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

P ER C URIAM

.2 D ENIED

.

E ISNAUGLE and K ILBANE
, JJ., concur

. M AKAR
, 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

.

_____________________________

M AKAR
, 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 Fed eral 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] h as 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 p ublic 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 f

or Medical Countermeasures Against COVID

-3

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 prov ided 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 prot ections.” 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 he alth 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, i mmunity 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. A ll. 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 co ntrols 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 rewrit ing the statute

.

In this case, the Hospital s eeks 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 a re non

- appealable (i.e., not listed in rule 9.130, the nonfinal order rule). Certiorari jurisdiction, in turn,4

requires irreparable injury, which exists for claims asserting immunity from suit. That’s because subjecting a party or agency to a lawsuit for w hich 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 summa ry 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 Mo rales , 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 asserte d 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 P REP Act clearly establish es immunity “from suit and li ability

, ” 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 e xists 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. Petition ers 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 moti on 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 party5

entitled to immunity from suit incurs the burdens of litigation. Tucker v. Resha , 648 So. 2d 1187, 1189 (F la. 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 ot her 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 coun termeasures and activities that the Department’s Decl a ration was intended to cover. To the contrary, the claim of damages against the Hospital is not causally connected to the administration or use of an y drug, device or other statutorily defined counterme asure . 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 reason s , I concur in the denial of relief on the merits

.