If I Have Converted My Facility to Producing Ventilators to Help with Coronavirus Efforts, Could I Face Product Liability Claims as A Result?
A number of manufacturers, including those involved in producing automotive products, have transformed their operations into manufacturing medical equipment necessary to help with the coronavirus crisis, such as ventilators, respiratory devices, and other accessories. This will inevitably help more patients who are fighting for their lives as a result of the pandemic.
However, many of these manufacturers should also ensure that they are legally protected from product liability claims, given that they are also engaged in producing products that are not part of their usual operations. Below, we address some of the measures that come into effect when companies ‘pitch in’ for the sake of helping with a pandemic like the one we are currently in, however, it would still be wise for these businesses to ensure that they are thoroughly covered by consulting with experienced legal counsel.
Emergency Laws Protecting Manufacturers, Distributors, And Others Involved in These Efforts
Fortunately, the Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Secretary of Health and Human Services to provide liability immunity against claims of loss (i.e. both federal and state lawsuits) related to the manufacture of medical “countermeasures,” (i.e. products) unless “willful misconduct” was involved, and the Secretary issued the Declaration to do so under the Public Health Service Act in February. The law covers the administration, development, testing, manufacture, and distribution of “covered countermeasures” and “qualified pandemic and epidemic products,” covering manufacturers, distributors, their agents, employees, the U.S., contractors, subcontractors of manufactures, licensers, suppliers, parties involved in intellectual property services, design, development, clinical testing, investigations, subsidiaries, affiliates, carriers, warehouses, pharmacies, etc.
Under the law, “covered countermeasures” and “qualified pandemic or epidemic products” include devices or drugs that are manufactured, used, developed, designed, modified, licensed, etc. to diagnose, prevent, treat, prevent, mitigate, or cure an epidemic or pandemic or limit the harm they can cause. In addition, the Families First Coronavirus Response Act extended targeted liability protection to manufacturers, distributors, and prescribers of approved respiratory protective devices that are subject to specified emergency use authorizations and used between January 27, 2020 and October 1, 2024.
As a result, those companies that have converted their operations to producing ventilators and other respiratory devices in order to help with the virus are arguably protected from liability unless they engage in willful misconduct that leads to serious physical injury or death. Still, it is wise to still consult with counsel to ensure that any specific, new products they are considering manufacturing are definitely covered.
Companies should also examine their product liability insurance coverage policies to see if they cover any claims of injury and property damage that arise out of products made to combat the virus. It is possible that their policies will not cover them in the event of a product liability lawsuit, given that these companies are engaged in producing a new product, and new products can be subject to policy exclusions.
Contact Our Texas Product Liability Defense Attorneys with Any Questions or Concerns
Our Brownsville product liability defense attorneys provide skilled legal advice and representation to manufacturers and other parties that are concerned about facing product liability claims. Contact us at Colvin, Saenz, Rodriguez & Kennamer, L.L.P. today to find out more.