Number: RS22327
Title: Pandemic Flu and Medical Biodefense Countermeasure Liability Limitation
Authors: Henry Cohen and Vanessa Burrows, American Law Division 
Abstract: Division C of P.L. 109-148 (2005), 42 U.S.C. §§ 247d-6d, 247d-6e, limits liability with respect to pandemic flu and other public health countermeasures. Specifically, upon a declaration by the Secretary of Health and Human Services of a public health emergency or the credible risk of such emergency, Division C would, with respect to a "covered countermeasure," eliminate liability, with one exception, for the United States, and for manufacturers, distributors, program planners, persons who prescribe, administer or dispense the countermeasure, and employees of any of the above. On January 26, 2007, the Secretary declared that there is a "credible risk that the spread of avian influenza and resulting disease could in the future constitute a public health emergency." The exception to immunity from liability is that a defendant who engaged in willful misconduct would be subject to liability under a new federal cause of action, though not under state tort law. Division C's limitation on liability is a more severe restriction on victims' ability to recover than exists in most federal tort reform statutes. However, victims could, in lieu of suing, accept payment under a new "Covered Countermeasure Process Fund," if Congress appropriates money for this fund.
Pages: 6
Date: Updated January 15, 2008