Not Dead Yet v. Cuomo

• Decision Date: 13 August 2021
• Docket Number: 20-CV-4819(GRB)
• Citation: 554 F.Supp.3d 445
• Parties: NOT DEAD YET, NMD United, Disability Rights New York, Michelle Brose, Mike Volkman, Jessica Tambor, and Peri Finkelstein, individually and on behalf of a class of all others similarly situated, Plaintiffs, v. Andrew CUOMO, Governor of the State of New York, in his official capacity, and Howard A. Zucker, Commissioner of the New York State Department of Health, in his official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

554 F.Supp.3d 445

NOT DEAD YET, NMD United, Disability Rights New York, Michelle Brose, Mike Volkman, Jessica Tambor, and Peri Finkelstein, individually and on behalf of a class of all others similarly situated, Plaintiffs,

v.Andrew CUOMO, Governor of the State of New York, in his official capacity, and Howard A. Zucker, Commissioner of the New York State Department of Health, in his official capacity, Defendants.

20-CV-4819(GRB)

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

Signed August 13, 2021

Greg Lee Bass, National Center for Law and Economic Justice, Britney Renee Wilson, New York Law School, New York, NY, Jordan Rebecca Berger, National Center for Law and Economic Justice, Fort Wayne, IN, for Plaintiff Not Dead Yet.

Jordan Rebecca Berger, National Center for Law and Economic Justice, Fort Wayne, IN, Britney Renee Wilson, New York Law School, New York, NY, for Plaintiff NMD United.

Jessica Barlow, Disability Rights New York, Rochester, NY, Britney Renee Wilson, New York Law School, New York, NY, for Plaintiff Disability Rights New York.

Jessica Barlow, Disability Rights New York, Rochester, NY, Jordan Rebecca Berger, National Center for Law and Economic Justice, Fort Wayne, IN, Britney Renee Wilson, New York Law School, New York, NY, for Plaintiffs Michelle Brose, Mike Volkman, Jessica Tambor, Peri Finkelstein.

Robert Edward Morelli, Office of the New York State Attorney General, Hauppauge, NY, for Defendants.

MEMORANDUM OF DECISION & ORDER

GARY R. BROWN, United States District Judge:

In this creative, if peculiar, case, several plaintiffs who depend on ventilators¹ based upon various medical conditions seek to challenge voluntary guidelines for ventilator allocation in times of public health crisis published by a state health care task force in 2015. Of particular concern to plaintiffs is a disturbing provision that recommends that, under certain circumstances, "hospitals take chronic ventilator users’ personal ventilators upon their arrival into a hospital and place them into the general ventilator allocation pool" for reassignment to an individual with a higher likelihood of survival. Docket Entry ("DE") 1 ¶ 45. Recognizing the unpalatability of this recommendation, the challenged Ventilator Allocution Guidelines ("Guidelines ") note that this recommendation "may place ventilator-dependent individuals in a difficult position of choosing between life-sustaining ventilation and urgent medical care." Id. ¶ 46 (quoting State Department of Health, Ventilator Allocation Guidelines at 41).

This troubling concept, which forms the core of this action, is mitigated by several factors specifically set forth in the allegations. The complaint expressly acknowledges that the Guidelines are "voluntary" and "non-binding." Id. ¶¶ 31, 34, 35. Drafted in 2015 in anticipation of a potential flu pandemic, id. ¶¶ 4-5, and notwithstanding the advent of the COVID-19 pandemic in 2020, the complaint fails to cite a single instance of the actual adoption or implementation of the Guidelines. The allegation coming closest to actual implementation is a suggestion in a magazine article that Northwell Health would adopt the Guidelines "if they run out of equipment." See Tyler Foggatt, Who Gets a Ventilator?, The New Yorker , April 11, 2020² (cited in DE 1 ¶ 36).

Defendants move to dismiss under Rule 12 of the Federal Rules of Civil Procedure on grounds of standing, ripeness, redressability and violation of the statute of limitations. DE 18. Unfortunately for plaintiffs, defendants are certainly correct as to some, and possibly all of these grounds.

First is the question of standing. "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies," the Supreme Court has held. "One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue."³ Clapper v. Amnesty Int'l USA , 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Standing lies "only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is concrete and particularized, actual or imminent, and redress[able] by a favorable decision." 568 U.S. at 423, 133 S.Ct. 1138. Recent jurisprudence has further reinforced these concerns. TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2212, 210 L.Ed.2d 568 (2021) ("the risk of dissemination to third parties—was too speculative to support Article III standing" in damages action); see Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) ("A concrete injury must be de facto; that is, it must actually exist"). In determining that petitioners lacked standing to challenge the Foreign Intelligence Surveillance Act based on the possibility of potential future surveillance, Clapper emphasized both "the well-established...