Pirotte v. HCP Prairie Vill. KS OPCO LLC

• Decision Date: 20 January 2022
• Docket Number: Case No. 21-2346-DDC-KGG
• Citation: 580 F.Supp.3d 1012
• Parties: Michael H. PIROTTE, individually and as Special Administrator of the Estate of Rosaire B. Pirotte, Plaintiff, v. HCP PRAIRIE VILLAGE KS OPCO LLC, et al., Defendants.
• Court: U.S. District Court — District of Kansas

580 F.Supp.3d 1012

Michael H. PIROTTE, individually and as Special Administrator of the Estate of Rosaire B. Pirotte, Plaintiff,

v.HCP PRAIRIE VILLAGE KS OPCO LLC, et al., Defendants.

Case No. 21-2346-DDC-KGG

United States District Court, D. Kansas.

Signed January 20, 2022

Ashley L. Ricket, Kansas City, MO, for Plaintiff.

Charlie C.H. Lee, Pro Hac Vice, Kristen A. Bennett, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Jaime L. Whitt, Megan Leah Moseley, Lawrence J. Logback, Simpson, Logback, Lynch, Norris, PA, Overland Park, KS, John E. Hall, Jr., Pro Hac Vice, Laura Hall Cartner, Pro Hac Vice, Hall Booth Smith, PC, Atlanta, GA, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Before the court is plaintiff Michael H. Pirotte's Motion to Remand (Doc. 22). Plaintiff argues that his Kansas state law claims—which defendants removed to our court—belong in state court because our court lacks subject-matter jurisdiction over those claims. In contrast, defendants argue that the claims belong in federal court because a federal law—the Public Readiness and Emergency Preparedness Act (PREP Act)—completely preempts plaintiff's claims, thus providing our court with subject matter jurisdiction over those claims. For reasons explained below, the court grants plaintiff's motion and remands the case to state court because this court lacks subject matter jurisdiction. And, because the court lacks subject matter jurisdiction, the court dismisses defendants’ Motion to Dismiss (Doc. 6).

I. Background

Rosaire B. Pirotte lived at Brighton Garden of Prairie Village, a residential health care facility. Doc. 1-1 at 4–5 (Pet. ¶¶ 1, 13). Ms. Pirotte lived at Brighton Gardens "because she was incapable of caring for herself." Id. at 12 (Pet. ¶ 44). She "relied upon Defendants to provide for her health, safety, protection, protective oversight, and to provide food and water." Id. at 13 (Pet. ¶ 52).

Plaintiff alleges that "Brighton Gardens knew or should have known the vital importance of ensuring COVID-19 did not enter or spread in its facility." Id. at 12 (Pet. ¶ 48). Specifically, plaintiff alleges Brighton Gardens should have "monitor[ed] both residents and staff for fever, cough

, and other symptoms of COVID-19, adher[ed] to social distancing guidelines, maintain[ed] infection control procedures, and maintain[ed] other sanitary procedures to prevent the spread of COVID-19[.]" Id. at 12–13 (Pet. ¶ 48).

In early April 2020, Brighton Gardens confirmed its first positive cases of COVID-19 at its facility. Id. at 13 (Pet. ¶ 49). By April 24, 2020, 13 residents and 7 staff members had tested positive for the virus. Id. (Pet. ¶ 50). Due to the COVID-19 outbreak, Ms. Pirotte was quarantined in her room. Id. (Pet. ¶ 51). In May 2020, Ms. Pirotte began exhibiting COVID-19 symptoms. Id. (Pet. ¶ 55). She tested positive for COVID-19 on May 15, 2020. Id. at 14 (Pet. ¶ 57). On May 19, 2020, Ms. Pirotte died from COVID-19. Id. (Pet. ¶ 58).

On April 14, 2021, Mr. Michael Pirotte—the surviving adult son of Rosaire Pirotte—filed a lawsuit in the District Court of Johnson County, Kansas bringing state law claims against defendants. Doc. 1-1 at 2–3 (Pet. ¶ 3). He sued defendants for (1) wrongful death, (2) survival and lost chance of recovery, and (3) negligence. Id. at 12–20. He alleges, among other things, that:

• "Brighton Gardens failed to timely intervene to obtain medical attention for Rosaire B. Pirotte." Id. at 13 (Pet. ¶ 56).

• "Defendants negligently failed to follow proper infection control protocols and prevent an outbreak of COVID-19." Id. at 14 (Pet. ¶ 59).

• "Defendants failed to ensure its workers were not working with symptoms consistent with COVID-19." Id. (Pet. ¶ 60).

• "Defendants failed to train, instruct, and/or monitor staff use of proper personal protective equipment to prevent spread of COVID-19." Id. (Pet. ¶ 61).

• "Defendants failed to effectively separate those with symptoms of COVID-19 from the remaining population of the facility." Id. (Pet. ¶ 62).

• "Defendants failed to adhere to social distancing guidelines put in place in March 2020 to keep its residents safe from being exposed to COVID-19." Id. (Pet. ¶ 63).

• "Defendants otherwise failed to sufficiently control or manage the presence of COVID-19 in the facility." Id. (Pet. ¶ 64).

• "Defendants failed to timely implement a plan of improvement to address the COVID-19 outbreak at the facility." Id. (Pet. ¶ 65).

Plaintiff also alleges that defendants were negligent in:

• "failing to instruct, train, and/or supervise competent staff regarding the care of its residents[.]" Id. at 15 (Pet. ¶ 67(a)).

• "failing to follow proper guidelines in place for the prevention of COVID-19 outbreaks in long term care facilities[.]" Id. (Pet. ¶ 67(b)).

• "failing to ensure its staff was not allowed to work at Brighton Gardens when they exhibited signs and symptoms consist[ent] with COVID-19[.]" Id. (Pet. ¶ 67(c)).

• "failing to instruct, train, and/or supervise staff regarding the appropriate use of personal protective equipment and infection control protocols[.]" Id. (Pet. ¶ 67(d)).

• "failing to properly respond to the presence of COVID-19 in the defendant facility to prevent spread[.]" Id. (Pet. ¶ 67(e)).

• "failing to timely request additional staff, resources, and other assistance from the public health entities available to respond to COVID-19[.]" Id. (Pet. ¶ 67(f)).

• "failing to separate residents with signs and symptoms of COVID-19 from the remaining resident population[.]" Id. (Pet. ¶ 67(g)).

• "failing to prevent staff members from coming into contact with both COVID-19 positive and negative residents such that staff members spread the virus from person to person[.]" Id. at 15–16 (Pet. ¶ 67(h)).

• "failing to adhere to social distancing guidelines put in place in March 2020 to keep its residents from being exposed to COVID-19[.]" Id. at 16 (Pet. ¶ 67(i)).

• "failing to timely, consistently, and properly assess, re-assess and document Rosaire B. Pirotte's physical condition[.]" Id. (Pet. ¶ 67(j)).

• "failing to properly supervise and train Defendants’ agents and/or servants who were responsible for the care, treatment, and oversight of Rosaire B. Pirotte[.]" Id. (Pet. ¶ 67(k)). • "failing to carry out and follow standing orders, instructions, and protocol regarding the prevention of COVID-19[.]" Id. (Pet. ¶ 67(l)).

• "failing to provide adequate training to staff regarding prevention and treatment of infection[.]" Id. (Pet. ¶ 67(m)).

• "failing to provide adequate training to staff regarding prevention of COVID-19[.]" Id. (Pet. ¶ 67(n)).

• "failing to implement appropriate interventions and thereby allowing Rosaire B. Pirotte to be exposed to COVID-19 in the defendant facility[.]" Id. (Pet. ¶ 67(o)).

• "failing to document changes in Rosaire B. Pirotte[ ]’s condition[.]" Id. (Pet. ¶ 67 (p)).

• "failing to adequately, accurately and timely monitor Rosaire B. Pirotte's changes in condition[.]" Id. (Pet. ¶ 67(q)).

• "failing to timely respond to Rosaire B. Pirotte's change in condition[.]" Id. (Pet. ¶ 67(r)).

• "failing to timely advise Rosaire B. Pirotte's family and doctor of her changes in condition[.]" Id. at 17 (Pet. ¶ 67(s)).

• "failing to follow the Defendants’ policies and procedures, including but not limited to those policies relating to physician notification, significant changes of condition and medical chart documentation[.]" Id. (Pet. ¶ 67(t)).

• "failing to provide adequate training and supervision to staff regarding physician notification, significant changes of condition and medical chart documentation[.]" Id. (Pet. ¶ 67(u)).

On August 5, 2021, defendants filed a Notice of Removal (Doc. 1). Defendants also filed a Motion to Dismiss (Doc. 6). Then, on September 2, 2021, plaintiff filed a Motion to Remand (Doc. 22).¹ With this factual and procedural history in mind, the court now reviews the legal standards governing the Motion to Remand.

II. Legal Standard

" ‘Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]’ " United States v. James , 728 F. App'x 818, 822 (10th Cir. 2018) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Congress has empowered federal courts to hear certain cases removed from state court. Defendants may remove any state-court civil action to federal court if the federal court has original jurisdiction over at least one of plaintiff's claims. See generally 28 U.S.C. § 1441(a) ; 28 U.S.C. § 1367. But, the court must remand the action to state court if the federal court lacks subject matter jurisdiction over it. 28 U.S.C. § 1447(c). And the "removing party has the burden to demonstrate the appropriateness of removal from state to federal court." Baby C v. Price , 138 F. App'x 81, 83 (10th Cir. 2005) (citation omitted).

III. Discussion

In a nutshell, this case requires the court to decide whether plaintiff's claims arise under federal law for purposes of federal question jurisdiction. This question requires the court, in turn, to consider the doctrine of "complete preemption" and thus determine whether plaintiff's state court allegations fall within the scope of a federal remedial right.

In this case, the relevant remedial right comes from the PREP Act, 42 U.S.C. §§ 247d —d-10. And the scope of that remedial right depends on a few words in the statute, i.e. : "injuries directly caused by the administration or use of a covered countermeasure[.]" 42 U.S.C. § 247d-6e(a). Plaintiff's Motion to Remand thus turns on the question whether this federal remedy envelops plaintiff's removed state law claims. But before diving into that deep well of arguments, the court reviews several general rules governing removal of state law claims to federal court.

A. Removal of Federal Question Cases to Federal Court

Congress has granted federal district courts authority to hear certain civil actions brought originally in state court. See 28 U.S.C....