Sherod v. Comprehensive Healthcare Mgmt. Servs.

• Decision Date: 16 October 2020
• Docket Number: 20cv1198
• Parties: VANESSA SHEROD AS ADMINISTRATOR OF THE ESTATE OF ELIZABETH WILES, AND IN HER OWN RIGHT, Plaintiff, v. COMPREHENSIVE HEALTHCARE MANAGEMENT SERVICES, LLC doing business as BRIGHTON REHABILITATION AND WELLNESS CENTER, ET AL., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

VANESSA SHEROD AS ADMINISTRATOR OF THE ESTATE OF ELIZABETH WILES,AND IN HER OWN RIGHT, Plaintiff, v. COMPREHENSIVE HEALTHCARE MANAGEMENT SERVICES, LLC doing business as

BRIGHTON REHABILITATION AND WELLNESS CENTER, ET AL., Defendants.

20cv1198

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

October 16, 2020

ELECTRONICALLY FILED

MEMORANDUM OPINION

Defendants removed this negligence, misrepresentation, wrongful death and survival action, originally filed in the Court of Common Pleas of Allegheny County, Pennsylvania, to this Court, asserting federal question jurisdiction. Specifically, Defendants based their removal of this case on the Public Readiness and Preparedness Act ("PREP Act"), and now argue that the PREP Act completely preempts the claims asserted by Plaintiff in her Complaint. Plaintiff filed a Motion to Remand this matter back to state court (ECF 10), Defendants filed a Brief in Opposition (ECF 22), and Plaintiff filed a Reply (ECF 29) making the matter ripe for adjudication.

I. Standard of Review

Except as otherwise expressly provided by Act of Congress, any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C.A. § 1441(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c).

The presence or absence of federal-question jurisdiction 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. Gully v. First National Bank, 299 U.S. 109, 112-113 (1936). "The '[well-pleaded complaint] rule' makes the plaintiff the master of the claim; he or she may avoid federal question jurisdiction by exclusive reliance on state law. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

However, the "complete [or artful] pre-emption doctrine" applies where the pre-emptive force of a statute is so extraordinary that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). "If a court concludes that a plaintiff has 'artfully pleaded' claims [by omitting to plead necessary federal questions], it may uphold removal even though no federal question appears on the face of the plaintiff's complaint . . . where federal law completely preempts a plaintiff's state-law claim." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998).

Removal is "strictly construed, with all doubts to be resolved in favor of remand." Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009) (citations omitted); see also Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396, 403 (3d Cir. 2004) (citations omitted). The removing party bears the burden of showing that removal is appropriate. Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007).

II. Background¹

Plaintiff sued Defendants alleging that the decedent, Elizabeth Wiles, died from COVID-19 ("the virus") on May 10, 2020, after being exposed to, and infected by, the virus while working at Brighton Rehabilitation and Wellness facility ("Brighton") in Beaver County, Pennsylvania. ECF 1-1, ¶ 1-4. Plaintiff further alleged that the Brighton viral outbreak, "at its peak . . . accounted for 65% of all COVID-19 cases and 90% of all COVID-19 deaths in Beaver County, Pennsylvania." Id., ¶ 6. Plaintiff also alleged that Defendant Brighton had been cited numerous times since 2014 by Pennsylvania's Department of Health for various "infection-contamination" risk violations, and was among one of the most fined nursing homes in Pennsylvania from March of 2017 to July of 2018. Id., ¶ 70.

Plaintiff alleged that Defendants' "systemic failure and outright refusal to protect . . . workers" despite Defendants' knowledge of the nature of the threat that COVID-19 posed to their workers, and that Defendants' "pattern of wanton and reckless conduct would leave workers exposed" to COVID-19. Id., ¶ 72-76. Plaintiff further claimed that Defendants knew or should have known that their workers (including decedent) would require personal protective equipment ("PPE"), but failed to provide or require PPE, and further, downplayed the danger posed by COVID-19. Id., 78-79. Finally, Plaintiff alleges that in March of 2020, Brighton had its "first COVID-19 case" but this information was withheld from the Brighton workers, residents, government officials, and public-at-large until April 1, 2020. As of April 1, 2020, Brighton allegedly had three residents who died from COVID-19, thirty-six known infected residents and six known infected facility workers. Id., ¶ 86.

Plaintiff has sued Defendants for negligence averring that Defendants:

a. Ignor[ed] the risk of COVID-19 infection to workers at Brighton;

b. Allowed sick and exposed staff and workers to work at the facility;

c. Fail[ed] to provide workers with any equipment to help prevent the spread of COVID-19 at Brighton;

d. Intentionally ignor[ed] the fact that staff, workers and residents at the Brighton were infected with and/or were displaying symptoms consistent with COVID19;

e. Fail[ed] to provide appropriate PPE at Brighton prior to April 2, 2020 and thereafter;

f. Fail[ed] to provide workers with any equipment to help prevent the spread of COVID-19 at Brighton;

g. Fail[ed] to close Brighton, despite the fact that Defendants knew, or should have known, that workers and residents at the facility were suffering from COVID-19;

h. Fail[ed] to close the Brighton, despite the fact that Defendants knew, or should have known, that staff, workers and residents at the facility were suffering from symptoms consistent with COVID-19;

i. Fail[ed] to report the Brighton outbreak before April 1, 2020, when the facility already had several deaths and numerous positive cases;

j. Fail[ed] to initiate timely and adequate quarantine of COVID-19 infected staff, workers and residents to protect uninfected staff, workers and other residents;

k. Fail[ed] to call for assistance from Commonwealth, Federal and/or other specialized agencies despite being aware of the magnitude of the Brighton outbreak;

l. Fail[ed] to follow guidance from WHO [the World Health Organization], CDC [the Centers for Disease Control] and OSHA [the Occupational Safety and Health Administration] to require the use of masks and other PPE;

m. Continu[ed] to schedule and require the attendance of workers that Defendants knew or should have known were positive for, likely infected by or would likely test positive for COVID-19;n. Continu[ed] to schedule and require the attendance of workers that Defendants knew or should have known were at high risk for severe COVID-19 infection/death;

o. Fail[ed] to follow federal guidance from the CDC and OSHA by not mandating and/or enforcing social distancing guidelines at Brighton;

p. Fail[ed] to follow federal guidance from the CDC and OSHA by not mandating that workers who were feeling ill report their symptoms;

q. Fail[ed] to follow federal guidance from the CDC and OSHA by not mandating that workers who were feeling ill stay home from work and self-quarantine;

r. Fail[ed] to require workers to maintain physical/social distance at a minimum 6 feet apart;

s. Fail[ed] to implement policies and procedures that mandated workers keep 6 feet apart;

t. Fail[ed] to provide workers with gloves, masks and/or PPE;

u. Fail[ed] to provide workers with clear guidelines for social distancing;

v. Fail[ed] to provide training on proper techniques for handwashing;

w. Fail[ed] to provide training on proper use of PPE;

x. Fail[ed] to provide training on proper glove use protocol;

y. Fail[ed] to ensure functional and stocked handwash stations as required by Pennsylvania and federal laws and regulations;

z. Fail[ed] to ensure proper and safe storage of soiled linens and other biohazardous waste/biohazards;

aa. Fail[ed] to ensure the facility had adequate staff and workers to ensure that all proper precautions could be taken to avoid the spread of infection;

bb. Fail[ed] to provide adequate support to staff and workers at Brighton to make sure the workers were able to comply with all requirements to stop the spread of COVID-19;

cc. Enforc[ed] and/or maintain[ed] a formal and/or informal 'work while sick' policy at the Brighton [facility];dd. Fail[ed] to properly sanitize or otherwise disinfect Brighton, despite the fact that workers and residents at the facility were falling ill;

ee. Fail[ed] to ensure that the kitchen facilities were properly sanitizing pots, pans and food service items to prevent the spread of COVID-19;

ff. Fail[ed] to perform temperature checks on workers arriving at Brighton before they were allowed inside the facility;

gg. Fail[ed] to timely close the facility to outside, non-staff/worker visitors to prevent COVID-19 from entering the facility;

hh. Fail[ed] to meaningfully, systematically, and permanently address and correct the years of repeated sanitation violations before the Brighton outbreak despite warnings from the Pennsylvania Department of Health that the violations could spread infection at the facility;

ii. Fail[ed] to train workers to address and correct the years of repeated sanitation violations before the Brighton outbreak, despite warnings from the Pennsylvania Department of Health that the violations could spread infections at the facility;

jj. Fail[ed] to meaningfully, systematically, and permanently address and correct the years of repeated infection control violations the Brighton outbreak, despite warnings from the Pennsylvania Department of Health that the violations could spread infection at the facility;

kk. Fail[ed] to train workers to address and correct the

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