Nursing Home Sued for Wrongful Death Not Protected From Liability by PREP Act

A Pennsylvania District Court denies motions allowing a wrongful death claim to proceed against a nursing home that alleged immunity under pandemic emergency laws, for the death of a resident who contracted COVID-19. In Testa v. Broomall Operating Company (E.D. Pa., Civil Action 21-5148-KSM, May 26, 2022, and August 18, 2022).

Mary DeMarco died in a Broomall nursing home in April 2020 as a result of COVID-19. Her daughter, Rose Marie M. Testa, alleges her death occurred because the nursing home was not prepared for the pandemic and acted negligently in caring for her mother.

In 2021, Ms. Testa filed an action in a Delaware county court against Institutional Defendants Broomall Rehab; Broomall Operating Company, LP; Broomall Operating GL, LLC; SavaSeniorCare, LLC; and Terpax, Inc.

The institutional defendants removed the action to federal court and filed a motion to dismiss for lack of jurisdiction. Instead of responding to the motion, Ms. Testa amended her complaint to clarify that she was not bringing a claim for willful misconduct but was adding negligence and wrongful death claims against individual defendants.

Her amendments, if allowed, would destroy federal diversity jurisdiction.

The defendants filed a motion to strike the amended complaint, and Ms. Testa responded with a motion to remand the action to county court.

The district court first considers the motion to strike the amended complaint.

While the Third Circuit has not addressed the appropriate analytical approach to Section 1447(e), the court recognizes some district courts found the Fifth Circuit’s analysis in Hensgens v. Deere & Co., 833 F2d 1179 (5th Cir. 1987) to be helpful. In Hensgens, the Fifth Circuit used four factors to determine whether to permit a plaintiff to join nondiverse defendants, postremoval:

  1. The extent to which the purpose of the amendment is to defeat federal jurisdiction;
  2. Whether plaintiff has been dilatory in asking for amendments;
  3. Whether plaintiff will be significantly injured if amendment is not allowed;
  4. Any other factors bearing on the equities.

Considering those factors in this case, the Court finds all four Hensgens factors weigh in favor of striking the joinder. The Court finds Ms. Testa’s joinder of the individual defendants impermissible and grants the motion to strike claims against the individual defendants.

The Court has diversity jurisdiction and denies Ms. Testa’s motion to remand. Ms. Testa is a citizen of Pennsylvania, and the defendants are citizens of Delaware and Georgia. With diversity jurisdiction over this case, the Court does not need to consider whether there is federal question jurisdiction.

In June 2022, the defendants filed another motion to dismiss the amended complaint for failure to state a claim. They argued they are immunized under the Public Readiness and Emergency Preparedness (PREP) Act because its alleged wrongdoing has a “causal relationship” to the use of “covered countermeasures.” They also argued they are immunized under the PREP Act and the Pennsylvania emergency Management Services Code for claims “related to the contracture of COVID-19.”

Ms. Testa opposed the motion, arguing the PREP Act doesn’t pre-empt her claims and that the defendants aren’t shielded by it because the alleged wrongdoing does not relate to the use of a covered countermeasure, or by the Pennsylvania code.

The PREP Act shields covered individuals from liability in public health emergencies for claims that have a causal relationship with the administration to or use by an individual of a covered countermeasure. 42 U.S.C. § 247d-6d(a)(2)(B).

The parties agreed that the defendants are covered individuals and that Ms. Testa’s claims are for a loss, but dispute whether the loss relates to the use of covered countermeasure. The defendants argued the PREP Act applies to all claims related to covered countermeasures in any way, regardless of whether they are ever used.

The Court agrees with the other courts that the PREP Act does not shield a covered individual for claims arising out of its failure to administer or use a covered countermeasure. Beaty v. Delaware Cty., Civ. No.21, 1617, 2021 WL 4026373 (E.D. Pa. Aug. 5, 2021).

Ms. Testa’s claims arise out of the defendants’ failure to take measures to prevent her mother from contracting COVID-19, not out of their use of covered countermeasures. Although the PREP Act immunizes individuals who use covered countermeasures, it does not shield individuals who fail to take covered countermeasures.

The PREP Act also provides “an exclusive Federal cause of action against a covered person for the death or serious physical injury proximately caused by willful misconduct.” 42 U.S.C. § 247d-6d(d) (1). The defendants argued that Ms. Testa’s claims arise out of alleged willful misconduct and are pre-empted by the PREP Act.

The Third Circuit has determined that causes of action for willful misconduct are exclusive federal causes of action and cannot be maintained in state court. Maglioli v. Alliance HC Holdings LLC, 16 F. 4th 393 (3rd Cir. 2021).

The PREP Act defines “willful misconduct” as “an act of omission that is taken … (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal of 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. 42 U.S.C. §247d-6d©.

The Court finds Ms. Testa is not bringing claims for willful misconduct. The amended complaint alleges that her mother contracted COVID-19 as a result of negligent, grossly negligent, reckless, and recklessly indifferent acts and omissions.

The defendants further alleged the order by Pennsylvania’s governor on May 6, 2020, extending the Emergency Management Services Code’s immunity to certain nongovernment actors, including individuals employed by nursing homes, shields them from liability. They argued its care of Ms. Testa’s mother was carried out to prevent the transmission of COVID-19.

The parties and the Court agree this is an issue of first impression, but it is an issue that is easily resolved. The governor’s order immunizes only individuals, not entities like the defendants.

For the reasons above, the defendants’ motion to dismiss is denied.

Read the full text of the May 26 decision.