Saturday, October 18, 2008

Congressional Research Service Legal Report on PREPA

The Public Readiness and Emergency Preparedness Act, also known as Division C of P.L. 109-148 (2005) limits liability with respect to pandemic flu and other public health countermeasures. A Congressional Research Service Report for Congress by Henry Cohen, Legislative Attorney notes the following:

1. The ONLY circumstance in which a shielded person could be held liable for a death or serious injury requires that the action was done "intentionally to achieve wrongful purpose" and "knowingly" --disregarding a high probability of harm.
2. However, the HHS Secretary "shall promulgate regulations...that further restrict the scope of actions or omissions by a covered person that may qualify as 'willful misconduct.'" In other words, HHS is directed to raise the bar even higher on lawsuits than the bill has already done.
3. And no matter how bad the misconduct, federal employees have a special protection: under no circumstances will you be able to bring action "against a federal employee."

There is more: mandatory sanctions for lawyers who bring frivolous claims, for instance. It's antidemocratic provisions are astonishing.


daedalus2u said...

Those provisions seem to me to be unconstitutional on their face. The right to petition the Government for redress of grievance is in the First Amendment.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That is the essence of what a lawsuit against the Government is, petitioning the Government via the Courts for a redress of grievance.

The taking of private property (a wrong that can be rectified by cash payment) has to be done with fair compensation under the 5th Amendment.

daedalus2u said...

As I read this, precursors to the anthrax vaccine are covered as biological products. I don’t know the anthrax vaccine manufacturing process, but I assume it involves growing anthrax and then killing it to make the vaccine. If that grown-out anthrax was diverted, and used in an anthrax attack, those who do so might be immune from liability. Certainly the company that grew the anthrax would be immune, even if they kept the anthrax with zero security so that random people off the street could walk away with it. If an employee diverted it, that employee might be immune too.

The single circumstance in which Division C allows a covered person to be held liable is when a “death or serious physical injury” was caused by the “willful misconduct” of a covered person. Division C defines “willful misconduct” as an act or omission that is taken “(i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”

As I read it, a single person has to do all 3 parts of “willful misconduct”. If 3 separate people each do only one part, then none of them meet the threshold. If a person is told to do something and is told that there is “legal justification” to do it, does that get them off? There are plenty of political appointees in the Justice Department who will declare anything to be “legal”.

The barriers for proving all of this is willful are so high, that it would be straight forward to design a chain of custody where each step in the chain would not meet the threshold but could end up releasing lots of live anthrax. If the person who releases it is told it is an anthrax vaccine they are releasing which will provide immunity to those who inhale it, that person might think that the benefit would outweigh the harm. The standard isn’t that there is harm, it is only that it is highly probable that the harm outweighs the benefit. If it is a 50-50 chance that the harm outweighs the benefit there is no liability.

I think the October surprise will be anthrax.

daedalus2u said...

I just realized that if this law is used to try and remove legal liability from an anthrax attack, then those officials responsible for preventing the imposition of liability on the perpetrators become guilty of war crimes.

Using biological weapons such as anthrax is a war crime. No government official has the authority to immunize any person for committing a war crime, and to attempt to do so is itself a war crime.