District Court Finds No Federal Jurisdiction in COVID-19 Wrongful Death Suit

After the son of a man who died after contracting COVID-19 while living at a Brooklyn nursing home filed a complaint against the nursing home and unnamed health care workers asserting various state law claims such as negligence and wrongful death, Judge Pamela K. Chen of the Eastern District of New York has granted a motion to remand the matter to the Supreme Court of New York for lack of jurisdiction.

The plaintiff originally filed their complaint in the Supreme Court of New York on May 26, 2020, alleging that the Linden Center for Nursing and Rehabilitation and the health care professionals at the facility did not adequately take precautions to prevent spreading COVID-19, which caused the death of the plaintiff’s father, the court explained. Among the specific allegations were that the defendants failed to: “appropriate[ly] separate residents in accordance with local, state and federal guidance,” “enforce social distancing among residents” and staff, “cancel all group activities and communal dining,” and “ensure all health care professionals wore a facemask or cloth covering while in the facility,” according to the complaint. The causes of action listed included negligence, gross negligence, wrongful death, medical and nursing malpractice, and violation of New York Public Health Law.

The defendants filed a notice of removal on Aug. 31, 2020, asserting two grounds: that the case should be removed to a federal court because it arises under federal law — specifically, that the claims are “completely preempted by, or necessarily and significantly implicate, the Public Readiness and Emergency Preparedness (PREP) Act,” the judge explained — or, alternatively, that the case should be removed because the defendants were “acting under specific federal instructions/regulations,” as the Centers for Medicare and Medicaid Services and the Centers for Disease Control and Prevention “specifically compelled healthcare providers and nursing homes to respond to the COVID-19 pandemic,” according to the defendants.

The court sided with the plaintiff and authorized a remand because the plaintiff’s complaint “pleads no federal claim on its face. … Even if some of these claims implicate or are preempted by federal law” — namely the PREP Act — “by way of an affirmative defense, such defenses do not appear on the face of the well-pleaded complaint, and accordingly do not authorize removal to federal court.”

Further, the judge argued that “(e)ven if, however, the PREP Act does completely preempt state-law claims within its scope, Plaintiff’s claims are not such claims.” The judge argued that the PREP Act applies to “claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure,” which may be a drug, biological product, or device meeting certain criteria, according to the Department of Health and Human Services. The judge stated that the plaintiff does not argue that his loss came from the administration of any “covered countermeasure” but rather that it was the alleged failure of the defendants to take certain measures, such as enforcing social distancing and mask-wearing and screening those entering the building for COVID-19 symptoms.

Finally, the judge rejected the defendants’ broad interpretation of the federal-officer statute, arguing that the defendants do not show that they “were anything more than ‘highly regulated’ private persons or entities complying with federal laws and regulations.”

The plaintiff is represented by Napoli Shkolnik. The defendants are represented by Wilson Elser Moskowitz Edelman & Dicker.