FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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 Case No. 5D22-2971

LT Case No. 2021-CA-000611-A

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CITRUS MEMORIAL HOSPITAL 

INC. d/b/a CITRUS MEMORIAL 

HOSPITAL,

Petitioner,

v.

MARLA IANNELLI and TONY 

GAINEY,

Respondents.

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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.
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DENIED.

EISNAUGLE and KILBANE, JJ., concur.

MAKAR, J., concurs in result with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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-
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 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 
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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.