Leroy v. Hume

• Decision Date: 12 August 2021
• Docket Number: 20-CV-5325 (ARR) (CLP)
• Citation: 554 F.Supp.3d 470
• Parties: Jeffry LEROY, as Co-Guardian of Silvia Leroy, Incapacitated Person, Shirley Licin, as Co-Guardian of Silvia Leroy, Incapacitated Person, and Jeffry Leroy, Individually, Plaintiffs, v. Heather HUME, M.D., Mindy Brittner, M.D., Mira John, M.D., Mount Sinai Hospital, Mary Toussaint-Milord, M.D., Kaniz B. Banu, M.D., Mahreen Akram, M.D., Jamie Celestin-Edwards, CNM, Brookdale Hospital Medical Center, Jill Berkin, M.D., and Kevin Troy, M.D., Defendants.
• Court: U.S. District Court — Eastern District of New York

554 F.Supp.3d 470

Jeffry LEROY, as Co-Guardian of Silvia Leroy, Incapacitated Person, Shirley Licin, as Co-Guardian of Silvia Leroy, Incapacitated Person, and Jeffry Leroy, Individually, Plaintiffs,

v.Heather HUME, M.D., Mindy Brittner, M.D., Mira John, M.D., Mount Sinai Hospital, Mary Toussaint-Milord, M.D., Kaniz B. Banu, M.D., Mahreen Akram, M.D., Jamie Celestin-Edwards, CNM, Brookdale Hospital Medical Center, Jill Berkin, M.D., and Kevin Troy, M.D., Defendants.

No. 20-CV-5325 (ARR) (CLP)

United States District Court, E.D. New York.

Signed August 12, 2021

Jordan K. Merson, Giovanna Mabile Ferreira dos Santos, Merson Law, PLLC, New York, NY, for Plaintiffs.

Larry D. Bloomstein, Peter Joseph Fazio, Aaronson, Rappaport, Feinstein & Deutsch, New York, NY, for Defendants Heather Hume, MD, Mount Sinai Hospital, Jill Berkin, Kevin Troy.

Larry D. Bloomstein, Aaronson Rappaport, New York, NY, for Defendant Mira John, MD.

Dylan C. Braverman, Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY, Megan A. Lawless, Vigorito, Barker, Patterson, Nichols & Porter, Garden City, NY, for Defendants Mary Toussaint-Milord, Dr. Kaniz B. Banu, Mahreen Akram, Jamie Celestin-Edwards, Brookdale Hospital Medical Center.

Opinion & Order

ROSS, United States District Judge:

Silvia Leroy suffered a severe case of COVID-19 in the spring of 2020 that left her with debilitating brain damage and quadriplegia. Plaintiffs Jeffry Leroy and Shirley Licin, Ms. Leroy's guardians, sued the medical personnel who treated her and their affiliated hospitals for medical malpractice, among other claims. Defendants removed the case to this court on the basis of federal preemption under the PREP Act, federal question jurisdiction, and federal officer jurisdiction. Plaintiffs now move to remand the case to state court. For the reasons set forth below, I grant plaintiffs’ motion.

BACKGROUND

I. Case Background

This case concerns the medical treatment that Silvia Leroy received as a patient of Brookdale Hospital Medical Center ("Brookdale") and Mount Sinai Hospital ("Mount Sinai") in the spring of 2020. Compl. ¶ 39, ECF No. 27-4. While Ms. Leroy was a patient at Brookdale, she was not tested for COVID-19 despite one of her doctors, defendant Mary Toussaint-Milord, M.D., requesting that she be so tested. Id. ¶ 36. While she was a patient at Mount Sinai, she suffered from pulmonary embolism , weaning oxygen levels, cardiac arrest and clotting. Id. ¶ 39. Ms. Leroy's illness resulted in serious permanent injuries including brain damage and quadriplegia. Id.

On October 7, 2020, plaintiffs Jeffry Leroy and Shirley Licin—Ms. Leroy's spouse and sister, respectively—sued defendants in state court for "reckless misconduct and wanton, willful, reckless and/or grossly negligent medical malpractice." Id. at 3.¹ In particular, plaintiffs alleged that defendants were "grossly negligent and acted with reckless disregard" in failing to test Ms. Leroy for COVID-19 and failing to timely and properly diagnose and treat her pulmonary embolism, oxygen shortage, cardiac arrest and clotting. Id. ¶¶ 36–40. Plaintiffs also allege lack of informed consent, loss of services for plaintiff Jeffry Leroy, and failures by Brookdale and Mount Sinai to investigate the "qualifications, competence, capacity, abilities and capabilities" of defendants. Id. ¶¶ 45–68.

Defendants removed the case to federal court on November 3, 2020. Notice of Removal 1, ECF No. 1. On January 8, 2021, plaintiffs filed the instant motion to remand this case back to state court. Mot. Remand, ECF No. 27.

II. The PREP Act

The PREP Act, enacted in 2005, authorizes the Secretary of Health and Human Services ("HHS") to provide immunity from liability to frontline healthcare workers and entities during a public health emergency. The Act states:

[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 if a declaration [by the Secretary of Health and Human Services] has been issued with respect to such countermeasure.

42 U.S.C. § 247d-6d(a)(1). The definition of a "covered person" under the PREP Act includes manufacturers, distributors and program planners of covered countermeasures, as well as their officials, agents and employees, and any "qualified person who prescribed, administered, or dispensed" a covered countermeasure. Id. §§ 247d-6d(i)(2)(B). A "covered countermeasure" means "a qualified pandemic or epidemic product"; "a security countermeasure"; a "drug ..., biological product ..., or device ... that is authorized for emergency use in accordance with section 564, 564A, or 564B of the Federal Food, Drug, and Cosmetic Act"; or a "respiratory protective device that is approved by the National Institute for Occupational Safety and Health ... and that the Secretary determines to be a priority for use during a public health emergency declared under section 247d of this title." Id. § 247d-6d(i)(1). A "qualified pandemic or epidemic product" is defined as:

[A] drug ..., biological product, ... or device ... that is (i) manufactured, used, designed, developed, modified, licensed, or procured to (I) diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic or (II) limit the harm such a pandemic or epidemic might otherwise cause; (ii) ... manufactured, used, designed, developed, modified, licensed, or procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening disease or condition caused by [such a drug, biological product, or device]; or (iii) a product or technology intended to enhance the use or effect of [such] a drug, biological product, or device.

Id. § 247d-6d(i)(7)(A).

"The sole exception" to immunity from liability under the PREP Act is a claim of "death or serious physical injury proximately caused by willful misconduct." Id. § 247d-6d(d)(1). Such claims may be brought in the United States District Court for the District of Columbia exclusively, after the plaintiff has exhausted administrative remedies. Id. §§ 247d-6d(e)(1), 247d-6e(d)(1). Otherwise, claimants whose causes of action are barred by the Act may seek compensation for their injuries from the "Covered Countermeasure Process Fund." Id. § 247d-6e(a). Federal and state courts do not have "subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary" in administering compensation from the Covered Countermeasure Process Fund. Id. § 247d-6e(b)(5)(C).

The PREP Act expressly preempts state laws that conflict with the terms of the Act, providing that:

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 any matter included in a requirement applicable to the covered countermeasure under this section or any other provision of this chapter, or under the Federal Food, Drug, and Cosmetic Act.

Id. § 247d-6d(b)(8).

On March 17, 2020, the HHS Secretary declared that the COVID-19 pandemic constitutes a public health emergency under the PREP Act. Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 ("Declaration"). Since then, the Declaration has been amended seven times. See First Amended Declaration, 85 Fed. Reg. 21,012 (Apr. 15, 2020) ; Second Amended Declaration, 85 Fed. Reg. 35,100 (June 8, 2020) ; Third Amended Declaration, 85 Fed. Reg. 52,136 (Aug. 24, 2020) ; Fourth Amended Declaration, 85 Fed. Reg. 79,190 (Dec. 9. 2020) ; Fifth Amended Declaration, 86 Fed. Reg. 7,872 (Feb. 2, 2021) ; Sixth Amended Declaration, 86 Fed. Reg. 9,516 (Feb. 16, 2021) ; Seventh Amended Declaration, 86 Fed. Reg. 14,462 (Mar. 16, 2021). These amendments have served to expand on and clarify the terms of the PREP Act in the context of the evolving COVID-19 pandemic.

DISCUSSION

I. Removal Under 28 U.S.C. § 1441

A defendant may remove a state court action if the federal court has original jurisdiction over that action. 28 U.S.C. § 1441. In considering a motion to remand an action back to state court, the district court must "construe the removal statute narrowly, resolving any doubts against removability." Purdue Pharma L.P. v. Kentucky , 704 F.3d 208, 213 (2d Cir. 2013) (quoting Lupo v. Hum. Affairs Int'l, Inc. , 28 F.3d 269, 274 (2d Cir. 1994) ). Defendant bears the burden of establishing that removal is proper. Cal. Pub. Emps.’ Ret. Sys. v. WorldCom, Inc. , 368 F.3d 86, 100 (2d Cir. 2004).

Under 28 U.S.C. § 1331, district courts have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Whether or not a cause of action arises under federal law "is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists 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). Thus, "[a] case may not be removed to federal court ‘on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the federal defense is...