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Court Finds PREP Act Does Not Preempt Jurisdictional Claims in COVID-19 Wrongful Death Suit

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On Friday, the District of Kansas issued an opinion remanding a wrongful death lawsuit back to the state court on a motion from the plaintiff after the court reviewed the argument that there was no federal jurisdiction under the Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d (PREP Act) provision and no inherent federal question jurisdiction to overcome the lack of diversity jurisdiction.

The plaintiff sued Big Blue Healthcare for wrongful death of the plaintiff’s mother in the Riverbend Post-Acute Rehabilitation nursing center where she was a temporary resident. The plaintiff’s mother contracted COVID-19 and died from complications of the virus. The complaint alleged negligence on the part of the nursing home in permitting the residents to mingle and also in permitting symptomatic staff members to work while testing was processing, resulting in widespread contagion. The plaintiff’s cause of action was for wrongful death under the Kansas statutes. The defendants removed the case to federal court, alleging that the cause of action is preempted by the PREP Act.

The court first noted that federal jurisdiction must be affirmatively pled, and by omitting any federal law claims, a plaintiff who is not diverse from the defendant can avoid federal jurisdiction. The court then reviewed the defendants’ argument that the PREP Act had complete preemption in the field, noting that complete preemption was in fact jurisdictional, while a preemption defense was not and could be raised in state court. The court noted for the complete preemption to be applicable, the claim must have arisen directly as the subject of the statute, and while the failure to take countermeasures is related to the PREP Act, the PREP Act’s focus is the administration and use of specific countermeasures, none of which pertain to this case. The court did note that it is possible to have mingled causes of action, which would justify the removal, but in the absence of such in the plaintiff’s complaint, the case failed to maintain federal jurisdiction and was remanded to the state courts.

The plaintiff is represented by Steele Chaffee. The defendants are represented by Horn, Aylward & Bandy.

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