Shapnik v. Hebrew Home for the Aged at Riverdale

• Decision Date: 26 April 2021
• Docket Number: 20-cv-6774 (LJL)
• Citation: 535 F.Supp.3d 301
• Parties: Bella SHAPNIK, as proposed Administratrix and Administrator ad Prosequendum of the Estate of Rosa Shapnik, deceased, and Bella Shapnik, individually, Yakov Shapnik, individually, Plaintiffs, v. The HEBREW HOME FOR the AGED AT RIVERDALE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

535 F.Supp.3d 301

Bella SHAPNIK, as proposed Administratrix and Administrator ad Prosequendum of the Estate of Rosa Shapnik, deceased, and Bella Shapnik, individually, Yakov Shapnik, individually, Plaintiffs,

v.The HEBREW HOME FOR the AGED AT RIVERDALE, et al., Defendants.

20-cv-6774 (LJL)

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

Signed April 26, 2021

Rosemarie Elizabeth Arnold, Fort Lee, NJ, for Plaintiffs.

Lori Rosen Semlies, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY, for Defendants.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Two related matters are before the Court with respect to this action removed from state court. First, Defendants move, pursuant to Federal Rule of Civil Procedure 56 for summary judgment with respect to all of Plaintiffs’ claims. Second, the Court sua sponte raised the question of whether federal jurisdiction exists such that the case was properly removed from state court. Because the Court concludes that federal jurisdiction is lacking, it will remand the case to state court. The motion for summary judgment therefore is denied as moot.

BACKGROUND

A. Allegations of the Complaint

Plaintiff Bella Shapnik is the appointed administratix and administrator ad prosequendum of the Estate of Rosa Shapnik. Dkt. No. 1-1 ("Complaint" or "Compl.") ¶ 1. She is also the daughter-in-law of decedent Rosa Shapnik. Id. ¶ 2. Plaintiff Yakov Shapnik is the son of decedent Rosa Shapnik. Id. Defendants include the Hebrew Home for the Aged at Riverdale ("Hebrew Home"),¹ six medical doctors who were employees, agents and/or servants of the Hebrew Home,² ten registered nurses who were employees, agents, and/or servants of the Hebrew Home,³ and several other named individuals who were employees, agents, and/or servants of the Hebrew Home.⁴ The Hebrew Home is a residential health care facility located in Riverdale, New York.

Rosa Shapnik became a resident of Hebrew Home in 2012 due to her Alzheimer's disease and dementia

. Id. ¶ 14. On or about December 31, 2017, she suffered a fall resulting in contusions to her face, legs, and head but did not receive any medical treatment by Defendants until her family complained about her injuries. Id. ¶¶ 17-18. On numerous occasions, she was left lying in her bed and diapers covered in urine and feces, which covered her clothes and body; when her family brought her several new items of clothing, the staff at Hebrew Home threw away all of her clothes so as to hide the fact that they were covered in urine and feces. Id. ¶¶ 19-20.

On or about May 8, 2018, Rosa Shapnik suffered bruising to her right hip. Id. ¶ 22. On August 20, 2018, she suffered from a fall and sustained left hip injuries

and bruising. Id. ¶ 23. On April 24, 2019, she suffered from a fall and sustained bilateral knee injuries but did not receive any medical treatment until her family complained to the staff. Id. ¶¶ 24-25. On or about March 30, 2020, Rosa Shapnik's family was advised by Defendants that she was in good health. That advice was allegedly false. Id. ¶ 26. By no later than the following day, on or prior to April 1, 2020, Rosa Shapnik was suffering from bilateral pneumonia but was not sent to the hospital. Id. ¶ 27.

From April 1, 2020 to April 5, 2020, her family insisted that she be sent to the hospital for treatment for her pneumonia

and for a COVID-19 test, but Defendants refused to provide treatment for her and refused to give her a test for COVID-19. Id. ¶¶ 28-29. On or about April 5, 2020, Rosa Shapnik was sent to the hospital for treatment after she was found to be unresponsive. Id. ¶ 30. At the time, she suffered from severe dehydration, pneumonia, and COVID-19. Id. ¶ 31. She passed away on or about April 11, 2020, from her untreated physical illness. Id. ¶ 32.

B. The PREP Act

Rosa Shapnik requested and was denied a test for COVID-19. She ultimately died after being diagnosed with COVID-19. A congressional statute, the Public Readiness and Emergency Preparedness Act ("PREP Act") is relevant to at least that portion of her claims.

The PREP Act was enacted in 2005 in response to a different coronavirus epidemic, the SARS epidemic of 2003.⁵ In order to encourage the use of products, drugs, and devices designed to address epidemics and pandemics and that are approved by the Federal Drug Administration ("FDA"), the PREP Act gives the Secretary of Health and Human Services ("HHS Secretary") authority to make declarations that have the effect of conferring immunity on certain persons from federal and state liability. Section 247d-6d(a)(1) is at the heart of the PREP Act. It generally provides:

[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 ("HHS Secretary")] has been issued with respect to such countermeasure.

42 U.S.C. § 247d-6d(a)(1).

The Act applies to "any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing or use of such countermeasure." Id. § 247d-6d(a)(2)(B). Loss includes death, injury, and fear of injury, medical monitoring, and property damage and business interruption loss.

A "covered countermeasure" under the PREP Act is defined as "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 [i.e., (‘FFDCA’)]"; or "a respiratory protective device that is approved by the National Institute for Occupational Safety and Health [i.e. (‘NIOSH’)], ... 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). The PREP Act creates a rebuttable presumption that any use of a countermeasure by a covered person during the declaration period is for the category of diseases covered under the declaration. Id. § 247d-6d(a)(6). A "covered person" includes manufacturers, distributors, program planners, and qualified persons who prescribed, administered, or dispensed such countermeasures. Id. § 247d-6d(i)(2). In turn, a "qualified person" includes any licensed health professional or other person authorized to prescribe, administer, or dispense covered countermeasures, including hospitals, nursing homes and other entities. Id. § 247d-6d(i)(8). A "program planner" includes "persons" who supervise or administer a program with respect to the administration, provision, or use of a covered countermeasure, or who "provides a facility to administer or use a covered countermeasure in accordance with a declaration [from the HHS Secretary]." Id. § 247d-6d(i)(6).

The PREP Act does not explicitly define the term "administration" but assigns to the HHS Secretary the responsibility to provide relevant conditions in the declaration. See id. § 247d-6d(b)(1).

The immunity enjoyed by a covered person with respect to a covered countermeasure is subject to one limited exception. The sole exception to immunity applies if there is "death or serious physical injury proximately caused by willful misconduct," id. § 247d-6d(d)(1), in which case an action may "be filed and maintained only in the United States District Court for the District of Columbia," id. § 247d-6d(e)(1). There is an administrative exhaustion requirement before a plaintiff may bring a suit for injury proximately caused by willful misconduct. Id. § 247d-6e(d)(1).

A person who has a "covered injury" may bring a claim for compensation from the "Covered Countermeasure Process Fund" ("Process Fund"), which is administered by the HHS Secretary. Id. § 247d-6e(a). The objective of the Process Fund is to provide "timely, uniform, and adequate compensation to eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure." Id. The request for such compensation and the actions of the HHS Secretary in administering the Process Fund are not subject to judicial review: "No 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" in administering the Process Fund. Id. § 247d-6e(b)(5)(C). A person who is injured as a result of willful misconduct may elect to accept compensation from the Process Fund in lieu of bringing a court action, if the HHS Secretary determines that the person qualifies. Id. § 247d-6e(d)(5). However, a person who seeks compensation through the Process Fund cannot also pursue relief through a civil action or proceeding; compensation through the Process Fund "shall be exclusive of any other civil action or proceeding for any claim or suit this section encompasses." Id. § 247d-6e(d)(4).

The PREP Act contains a limited provision expressly preempting state laws that conflict with the terms of the PREP Act. The provision states:

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,

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