Hudak v. Elmcr T of Sagamore Hills

• Decision Date: 19 August 2021
• Docket Number: CASE NO. 5:21-cv-60
• Citation: 566 F.Supp.3d 771
• Parties: Laura HUDAK, Plaintiff, v. ELMCROFT OF SAGAMORE HILLS, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

566 F.Supp.3d 771

Laura HUDAK, Plaintiff,

v.ELMCROFT OF SAGAMORE HILLS, et al., Defendants.

CASE NO. 5:21-cv-60

United States District Court, N.D. Ohio, Eastern Division.

Signed August 19, 2021

Christian D. Foisy, Patrick Thomas Murphy, Dworken & Bernstein, Cleveland, OH, for Plaintiff.

Jason P. Ferrante, Jillian L. Dinehart, Keith Hansbrough, Marshall, Dennehey, Warner, Coleman & Goggin, Cleveland, OH, T. Andrew Graham, Hall Booth Smith, New York, NY, for Defendants Elmcroft of Sagamore Hills, Elmcroft by Eclipse Senior Living, Eclipse Senior Living, Inc., Eclipse Portfolio Operations, LLC, Eclipse Portfolio Operations II, LLC, Jamie Ashley Cohen.

ORDER OF REMAND

SARA LIOI, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the motion of plaintiff Laura Hudak ("Hudak" or "plaintiff") to remand this action to the Summit County Court of Common Pleas. (Doc. No. 8 ["Mot."].) The removing defendants opposed the motion¹ (Doc. No. 24 ["Opp'n"]), to which plaintiff replied² (Doc. No. 25 ["Reply"]).

For the reasons that follow, plaintiff's motion to remand is granted.³

BACKGROUND

A. State Court Complaint

Plaintiff is the executrix of the estate of her father, William Koballa, who was a resident at the assisted living facility defendant Elmcroft of Sagamore Hills (the "Elmcroft Facility") from July 1, 2016 until May 10, 2020. (Doc. No. 1-1 (Complaint ["Compl."]) ¶¶ 1, 3, 4.) On December 11, 2020, Hudak filed this action in the Summit County Court of Common Pleas against eight defendants: (1) Elmcroft of Sagamore Hills; (2) AL Sagamore Hills Operations, LLC; (3) Elmcroft by Eclipse Senior Living; (4) Eclipse Senior Living, Inc.; (5) Eclipse Portfolio Operations, LLC; (6) Eclipse Portfolio Operations II, LLC; (7) Senior Care Operations Holdings, LLC; and (8) Jamie Ashley Cohen (defined by plaintiff collectively as "the Elmcroft Defendants"), who owned, operated, and/or managed the Elmcroft Facility. (Id. ¶ 6.)

According to the complaint, William Koballa and his wife, Nancy Koballa, were residing at the Elmcroft Facility at the onset of the COVID-19 pandemic on February 21, 2020, when the Centers for Disease Control ("CDC") issued COVID-19 recommendations for healthcare professionals, including infection prevention and control policies, and on March 9, 2020, when the Governor of Ohio declared a state of emergency and authorized the Ohio Department of Health to implement procedures to alleviate the threat to public health posed by COVID-19. (See id. ¶¶ 7, 8, 11, 12.) Plaintiff alleges that the Elmcroft Facility implemented restrictive protocols as early as April 29, 2020, which included suspending family visitation and group activities, serving meals in residents’ rooms, daily monitoring for COVID-19 symptoms, requiring all Elmcroft Facility employees to wear masks and gloves while at the facility and follow strict hand-washing procedures, and requiring employees to have their temperatures taken and be screened for symptoms prior to each shift. (Id. ¶ 13.)

On May 4, 2020, Nancy Koballa reported to the Elmcroft Facility staff that her husband was ill. (Id. ¶¶ 15, 16.) Plaintiff claims that on May 5, 2020, Elmcroft's director of nurses and residential services, Jeffery Timms, falsely told plaintiff that her father had been seen by a nurse practitioner on May 4 and a doctor on May 5, 2020. (Id. ¶¶ 17, 18.) William Koballa's symptoms worsened to the point that he was unable to walk or feed himself, but the staff at the Elmcroft Facility told his daughters that he was doing well. (Id. ¶¶ 20–26.) On May 10, 2020, plaintiff entered the Elmcroft Facility to see her father and, upon seeing his condition, insisted that he be taken to the hospital, where he tested positive for COVID-19 and was placed in intensive care. (Id. ¶¶ 27, 28, 33.) William Koballa died on May 19, 2020 of hypoxia

and COVID pneumonia. (Id. ¶ 34.) Plaintiff alleges that his only exposure to other persons at the Elmcroft Facility was facility staff and that they failed to follow infection control procedures required by Medicare and the Ohio Department of Health as well as the infection control procedures required by Eclipse Senior Living. (Id. ¶¶ 35–37.) Based upon these facts, plaintiff asserts five state law causes of action against the Elmcroft Defendants, including negligence, wrongful death, and intentional and willful misconduct. (See id. ¶¶ 38–61.)

B. Notice of Removal

On January 8, 2021, defendants, Elmcroft of Sagamore Hills, Elmcroft by Eclipse Senior Living, Eclipse Senior Living, Inc., Eclipse Portfolio Operations, LLC, Eclipse Portfolio Operations II, LLC, and Jamie Ashley Cohen (collectively, the "removing defendants"), removed this action from the Summit County Court of Common Pleas to the United States District Court for the Northern District of Ohio.⁴ (Doc. 1 (Notice of Removal ["Notice"]) ¶ 1.)

The complaint was removed under 28 U.S.C. § 1441(a) pursuant to the Court's original federal jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1442(a)(1). (Id. ¶ 16.) First the removing defendants state that, on its face, plaintiff's action arises under the federal Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d ("PREP Act" or "Act"), and claim the Act completely preempts plaintiff's state law claims. (See id. ¶¶ 4, 17–35.)⁵ Second, the removing defendants claim federal jurisdiction under 28 U.S.C. § 1442(a)(1), which provides that a civil action commenced in state court against the United States or any agency of the United States or any of its officials, whether sued in their official or individual capacities, for or relating to any act under color of such office, may be removed to federal court. (Id. ¶ 16.) Last, the removing defendants contend that this Court has jurisdiction over this action because the case involves a substantial question of federal law. (Id. ¶¶ 36–38.)

C. Motion to Remand

In the motion, plaintiff contends that her claims are not covered by the PREP Act but, even if they are, the Act constitutes no more than a federal defense and, therefore, is insufficient to confer federal question jurisdiction over the complaint. (See Mot. at 125–39.⁶ ) Plaintiff further argues that the PREP Act is not a statute Congress intended to completely preempt state law and does not confer federal subject matter jurisdiction over plaintiff's claims. (Id. at 140–143.)

THE PREP ACT

The PREP Act is central to defendants’ removal and plaintiff's motion to remand. As noted by a sister district court within the Sixth Circuit addressing a motion to remand a state court case asserting negligence and wrongful death claims related to COVID-19 against a long-term care facility, there are numerous cases "currently percolating through the federal judiciary [regarding the issue of] to what extent state law claims implicating the COVID-19 pandemic are subject to federal jurisdiction via the [PREP Act], 42 U.S.C. § 247d-6d." Estate of Winfred Cowan v. LP Columbia KY, LLC , 530 F.Supp.3d 695, 698 (W.D. Ky. 2021). Numerous district court decisions across the country have extensively detailed the PREP Act in the context of motions to remand plaintiffs’ state court claims concerning COVID-19 against nursing homes, senior care, and assisted living facilities. See e.g. , Dupervil v. All. Health Operations, LCC , 516 F.Supp.3d 238, 242-49 (E.D.N.Y. 2021) ; Maltbia, ex rel. Dockery, v. Big Blue Healthcare, Inc., No. 20-cv-2607, 2021 WL 1196445, at *4–12 (D. Kan. Mar. 30, 2021).

The PREP Act empowers the Secretary of the Department of Health and Human Services ("Secretary") to " ‘to deem an event a ‘public health emergency’ and then take action to utilize funds established by the Treasury to manage the emergency.’ " Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC , 535 F.Supp.3d 709, 715 (M.D. Tenn. Apr. 21, 2021) (citing Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC , No. 20-cv-1198, 2020 WL 6140474, at *6 (W.D. Pa. Oct. 16, 2020) (citing 42 U.S.C. § 247d(a) ); see also 42 U.S.C. § 247d(b)(1) ). "If the Secretary determines that a public health emergency exists, ‘the Secretary may make a declaration ... recommending ... the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures’ to combat the emergency." Id. (citing 42 U.S.C. § 247 -6d(b)(1)) (alterations in original). In March 2020, the Secretary used his power under the PREP Act to declare " ‘the spread of SARS-CoV-2 or a virus mutating therefrom and the resulting disease, COVID-19’ [to be] a ‘public health emergency’ under the PREP Act."⁷ Id. (citing 85 Fed. Reg. 15198 (Mar. 17, 2020) ).

"Covered countermeasures" are defined as qualified pandemic or epidemic products, drugs and biological products authorized for emergency use, security countermeasures, and respiratory protective devices. See 42 U.S.C. § 247d-6d(i)(1). Under the PREP Act, a "covered person,"⁸ which includes individuals as well as private and public entities,

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 if a declaration under subsection (b) has been issued with respect to such countermeasure.

42 U.S.C. § 247d-6d(a)(1).

This immunity provision is at the core of the PREP Act.⁹ When the PREP Act applies to covered losses (including death and injury) sustained as a result of a covered person's use of "covered countermeasures," the "Covered Countermeasure Process Fund" ("Fund") provides the exclusive remedy available to the injured individual through an administrative process administered by the Secretary; "[n]o court of the United States, or of any State, shall have subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary" with respect to the Fund. See 42 U.S.C. §§ 247d-6e(a), (b)(1), (b)(5)(C). Compensation for injuries sustained as a result of...