Estate of Cowan v. LP Columbia KY, LLC

• Decision Date: 30 March 2021
• Docket Number: CIVIL ACTION NO. 1:20-CV-00118-GNS
• Citation: 530 F.Supp.3d 695
• Parties: ESTATE OF Winfred COWAN, et al., Plaintiffs v. LP COLUMBIA KY, LLC, et al., Defendants
• Court: U.S. District Court — Western District of Kentucky

530 F.Supp.3d 695

ESTATE OF Winfred COWAN, et al., Plaintiffs

v.LP COLUMBIA KY, LLC, et al., Defendants

CIVIL ACTION NO. 1:20-CV-00118-GNS

United States District Court, W.D. Kentucky, Bowling Green Division.

Signed March 30, 2021

Filed March 31, 2021

Derrick G. Helm, Helm Shearer Wilson, Jamestown, KY, John A. Bahe, Jr., Bahe Cook Cantley & Nefzger PLC, Louisville, KY, for Plaintiffs.

James E. Looper, Jr., Hall Booth & Smith PC, Nashvillle, TN, John David Dyche, Leigh V. Graves, Fultz Maddox Dickens PLC, Louisville, KY, John E. Hall, Jr., Hall Booth Smith, PC, Atlanta, GA, John G. Prather, Jr., Law Office of John G. Prather PSC, Somerset, KY, Thomas Andrew Graham, Hall Booth Smith, PC, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

Greg N. Stivers, Chief Judge

This matter is before the Court on Defendants’ Motion to Dismiss (DN 10), Defendants’ Motion for Leave to Exceed Page Limit (DN 9), Defendants’ Motion for Oral Argument (DN 19), Defendants’ Motions for Leave to File Supplemental Authorities (DN 22, 23, 24, 25), and Plaintiffs’ Motion to Remand (DN 13). The motions are ripe for adjudication. For the reasons discussed below, Defendants’ Motion to Dismiss and Defendants’ Motion for Oral Argument are DENIED , and the remaining motions are GRANTED .

I. STATEMENT OF FACTS

Plaintiffs Billie B. Crosby ("Crosby"), Edna Melson ("Melson"), the late Winfred Cowan ("Cowan"), and the late Virginia Lee Rowe ("Rowe") were all residents of a long term care facility operated by Defendant LP Columbia KY, LLC d/b/a Signature Healthcare at Summit Manor Rehab & Wellness ("Summit Manor"). (See Defs.’ Notice Removal Ex. A, ¶¶ 8-21, DN 1-1 [hereinafter Compl.]). Melson was staying at Summit Manor when she contracted COVID-19 and was sent to an urgent care facility where she was diagnosed as dehydrated and malnourished. (Compl. ¶¶ 11-12). Melson was eventually able to recover from the virus weeks later. (Compl. ¶ 12). Cowan was similarly staying at Summit Manor when he developed a high fever, was transferred to two urgent care facilities, and diagnosed with COVID-19, which later caused his death. (Compl. ¶¶ 14, 16). Rowe also died from COVID-19 contracted while living at Summit Manor. (Compl. ¶ 16). Crosby experienced kidney failure

and blood clots as a resident of Summit Manor. (Compl. ¶¶ 8-10).

On June 19, 2020, Plaintiffs filed a lawsuit in the Adair (Kentucky) Circuit Court asserting claims for negligence, violations of KRS 216.515, negligence per se , wrongful death, and breach of contract against Summit Manor and Signature Healthcare, LLC ("Defendants"). (See Compl. ¶¶ 22-49). Defendants removed the action to federal court, and moved to dismiss or compel arbitration.¹ (Notice Removal, DN 1; Defs.’ Mot. Dismiss, DN 10). Plaintiffs moved to remand.² (Pls.’ Mot. Remand, DN 13). Defendants have also moved to file supplemental authorities.³ (Defs.’ Mot. Leave File Suppl. Authorities, DN 22; Defs.’ 2d Mot. Leave File Suppl. Authorities, DN 23; Defs.’ 3d Mot. Leave File Suppl. Authorities, DN 24; Defs.’ 4th Mot. Leave File Suppl. Authorities, DN 25).

This case presents an issue currently percolating through the federal judiciary, namely, to what extent state law claims implicating the COVID-19 pandemic are subject to federal jurisdiction via the Public Readiness and Emergency Preparedness ("PREP") Act, 42 U.S.C. § 247d-6d. Plaintiffs argue the Complaint permissibly eschews federal claims and that, taken as a whole, it merely involves " ‘garden variety’ medical neglect." (Pls.’ Mot. Remand 2, 5). Defendants argue the PREP Act completely preempts any state law claims under its ambit and that Plaintiffs’ claims fall within the terms of the Act. (See Defs.’ Resp. Pls.’ Mot. Remand 3, DN 17).

II. STANDARD OF REVIEW

In order to invoke the district court's removal jurisdiction, a defendant must show the district court has original jurisdiction over the action. See 28 U.S.C. § 1441(a). The Court must remand the case to state court if the federal court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). All doubts regarding removal are resolved in favor of remand. Id. In this case, Defendants rely on 28 U.S.C. § 1441(b), which allows removal for actions "of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States." Id. § 1441(b) ; (Notice Removal 2). In determining removal jurisdiction under Section 1441, federal courts apply the "well-pleaded complaint" rule, which allows federal jurisdiction "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citation omitted). Specifically, the Court must examine "the ‘well pleaded’ allegations of the complaint and ignore potential [federal] defenses ...." Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).

The Sixth Circuit has generally recognized three exceptions to the well-pleaded complaint rule. See Mikulski v. Centerior Energy Corp. , 501 F.3d 555, 560 (6th Cir. 2007). The first such exception is the artful-pleading doctrine, which acknowledges plaintiffs may not "avoid removal jurisdiction by artfully casting their essentially federal law claims as state-law claims." Id. (citing Federated Dep't Stores, Inc. v. Moitie , 452 U.S. 394, 397 n.2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) ). Closely related is the second exception, the complete-preemption doctrine, which recognizes removal is proper "when a federal statute wholly displaces the state-law cause of action through complete pre-emption." Id. (citing Beneficial Nat'l Bank , 539 U.S. at 8, 123 S.Ct. 2058 ). The third exception is the substantial-federal-question doctrine, which applies "where the vindication of a right under state law necessarily turn[s] on some construction of federal law." Id. (alteration in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Tr. , 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ).

III. DISCUSSION

Acknowledging the Complaint does not satisfy the well-pleaded complaint rule, Defendants raise other exceptions to justify federal jurisdiction. (See Notice Removal 5). Central to each argument is Defendants’ contention that Congress and the Executive Branch intended claims like Plaintiffs’ not only be dismissed, but dismissed in federal court.

A. The PREP Act

"[T]he PREP Act empowers the Secretary of the Department of Health and Human Services [("HHS")] to deem an event a ‘public health emergency’ and then take action to utilize funds established by the Treasury to manage the emergency." Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC , No. 20cv1198, 2020 WL 6140474, at *6 (W.D. Pa. Oct. 16, 2020) (citing 42 U.S.C. § 247d(a) ). In March 2020, the Secretary of HHS ("the Secretary") issued a declaration under the PREP Act regarding the COVID-19 pandemic, which has since been amended five times. 85 Fed. Reg. 15,198 (Mar. 17, 2020) ; Fifth Amended Declaration, 86 Fed. Reg. 7,872 (Feb. 2, 2021).

Once the Secretary has issued an emergency declaration, the PREP Act provides that "a covered person shall be immune from suit and liability under Federal and State law with respect to all 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 ...." 42 U.S.C. § 247d-6d(a)(1). At the same time, "[u]pon the issuance by the Secretary of a declaration under section 247d-6d(b) ... there is hereby established in the Treasury an emergency fund ... for purposes of providing timely, uniform, and adequate compensation to eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure pursuant to such declaration ...." 42 U.S.C. § 247d-6e(a). Accordingly,

[w]hen the PREP Act applies, it provides broad immunity "from suit and liability under Federal and State law," and the remedy available to an injured plaintiff is an administrative "Covered Countermeasure Process Fund" ("Process Fund"), administered by the Secretary, that provides "timely, uniform, and adequate compensation to eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure."

Dupervil v. All. Health Operations, LLC , No. 20-CV-4042 (PKC) (PK), 516 F. Supp. 3d 238, 247, (E.D.N.Y. Feb. 2, 2021) (internal citation omitted) (citation omitted).

The only exception to the Act's immunity is when the injury occurs through willful misconduct. 42 U.S.C. § 247d-6d(d)(1). In these instances, the PREP Act provides procedural rules and exhaustion requirements that govern the injured person's claim. See 42 U.S.C. § 247d-6d(e). For example, the plaintiff must file suit in the U.S. District Court for the District of Columbia; claims must be proven by clear and convincing evidence; and the plaintiff may elect to accept compensation from the Process Fund, if the Secretary determines that the plaintiff qualifies. Id. §§ 247d-6d(e)(1), 247d-6d(c), 247d-6e(d)(5).

The PREP Act also expressly preempts state laws that conflict with its terms:

During the effective period of a declaration [ ] [by the Secretary], or at any time with respect to conduct undertaken in accordance with such declaration, no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that—

(A) is different from, or is in conflict with, any requirement applicable under this section; and

(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to

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