“Nothing in the act limits the scope of its immunity to ‘certain tort claims’ or excludes claims for ‘statutory violations,'” he said.
The PREP Act’s only exception is for federal actions for “death or serious physical injury proximately caused by willful misconduct,” the judge added. That does not include BIPA statutory violations, so it can’t save Redd’s claim, he said.
And the statute defines loss as “any type of loss, including” the four examples listed in the PREP Act, Judge Harjani said. That indicates an illustrative, rather than exhaustive, list, he said.
Redd argued her position was supported by a Department of Health and Human Services general counsel opinion stating that PREP Act immunity is limited to claims for business interruption, property damage and “death, physical, mental or emotional injury, illness, disability or condition, fear of such harm or need for medical monitoring.”
But even that cannot win the day because the opinion states that it does not have the force of law, and neither the department nor federal courts are bound by it, Judge Harjani said.
