Whitehead v. Pine Haven Operating LLC

• Decision Date: 08 June 2022
• Docket Number: Index No. E012022017995
• Citation: 75 Misc.3d 985,170 N.Y.S.3d 855
• Parties: Thomas N. WHITEHEAD, as Executor of the Estate of Janis H. Tipple, Deceased, Plaintiff, v. PINE HAVEN OPERATING LLC d/b/a Pine Haven Nursing and Rehabilitation Center, Pine Haven Nursing and Rehabilitation Center, ABC Corporation and ABC Partnership, Defendants.
• Court: New York Supreme Court

75 Misc.3d 985

170 N.Y.S.3d 855

Thomas N. WHITEHEAD, as Executor of the Estate of Janis H. Tipple, Deceased, Plaintiff,

v.PINE HAVEN OPERATING LLC d/b/a Pine Haven Nursing and Rehabilitation Center, Pine Haven Nursing and Rehabilitation Center, ABC Corporation and ABC Partnership, Defendants.

Index No. E012022017995

Supreme Court, New York, Columbia County.

Decided on June 8, 2022

Napoli Shkolnik, PLLC, Attorneys For Plaintiff, Joseph Ciaccio, Esq., of counsel, 400 Broadhollow Road, Melville, New York 11747

Phelan, Phelan & Danek, LLP, Attorneys For Defendant, Marie Flynn Danek, Esq., of counsel, 300 Great Oaks Boulevard, Albany, New York 12203

Henry F. Zwack, J.

In this negligence action, the plaintiff, Thomas Whitehead, as Executor of the Estate of Janis Tipple, alleges negligence, negligence per se, wrongful death, and nursing home malpractice against the defendants, Pine Have Operating, LLC d/b/a Pine Haven Nursing and Rehabilitation Center, Pine Haven Nursing and Rehabilitation Center, ABC Corporation and ABC Partnership, which lead to the death from COVID-19 of the deceased Janis Tipple. The defendants now move pre-answer to dismiss the complaint, asserting the defenses of lack of subject matter jurisdiction ( CPLR 3211(a)(2) ; or, in the alternative, that the complaint fails to state a cause of action ( CPLR 3211(a)(7) ; or to dismiss the plaintiff's cause of action for negligence per se ( CPLR 3211(a)(7). The defendants assert that the plaintiff's allegations distill into claims that are barred under both state and federal law by the Public Readiness and Emergency Preparedness Act ("PREP Act"), 85 Fed Reg. 15198, 42 USC 247 - 69 [a][1]; the New York Emergency or Disaster Treatment Protection Act ("EDTPA"); Public Health Law Article 30, 3080-3082), and New York Executive Order 202.10 — all of which granted nursing homes and medical providers immunity from suit in cases where damages and death occurred as a result of COVID-19, and its countermeasures and treatments. With respect to the plaintiff's allegations of negligence per se (Third Cause of Action), the defendants argue, albeit a violation of a state statute may constitute negligence per se, a violation of an ordinance or regulations is only some evidence of negligence and not negligence per se.

The plaintiff opposes, asserting that the complaint is not pre-empted by the PREP Act, because it does not allege damages arising from, or related to, "the administration of" a "covered countermeasure" for COVID-19 or the selective administration of a "covered countermeasure." According to the plaintiff, the claims in the complaint relate to defendants’ glaring omissions in failing to act to prevent injury and death to the decedent. The plaintiff further argues that a nursing home is not a "covered person-program planner" under the PREP Act and therefore the Act is not applicable. More particularly, the complaint alleges that the defendants "failed to take proper steps to protect the residents and/or patients at their facilities from the COVID-19 virus" (paragraphs 261-262) and lists eleven COVID-19 countermeasures which the defendants failed to undertake (paragraphs 263-273). The plaintiff asserts that the decedent's death was a "direct result of the defendants’ failure to take measures to protect her at the nursing home from the deadly COVID-19 virus, and their negligence, gross negligence, and nursing home malpractice" (paragraph 275). The complaint seeks damages, including punitive damages, for violations of the PHL §§ 2801-d and 2803, negligent medical care, negligence per se, conscious pain and suffering, as well as wrongful death.

Also in opposition to the motion to dismiss, the plaintiff argues that PHL Article 30, § 3080-3082 was repealed within 11 months of its enactment due in part to an investigation and resulting report from the New York State Attorney General which that found not-for-profit nursing homes were incentivizing profits rather than investing in personal protective equipment, staffing and other preventive measures¹ . The short life of the statute, with its pre-emptive repeal, signifies that the Legislative intent was that PHL Article 30 have no retroactive effect. The plaintiff further argues, to the extent that the defendants motion to dismiss is based upon this repealed statute, the motion must fail.

On a CPLR 3211 motion to dismiss, the Court is required to "afford the complaint a liberal construction, accept the facts as true, accord the plaintiff the benefit of every favorable inference and determine only whether the alleged facts fit within any cognizable legal theory ( Gagnon v. Village of Cooperstown, N.Y., 189 A.D.3d 1724, 1725, 137 N.Y.S.3d 193 [3d Dept. 2020], citations omitted). In addition to the pleadings, the court may "take judicial notice of facts that amount to common knowledge or may be determined by resort to easily accessible sources of indisputable accuracy" ( Hamilton v. Miller, 23 N.Y.3d 592, 603, 992 N.Y.S.2d 190, 15 N.E.3d 1199 [2014], quoting People v. Jones, 73 N.Y.2d 427, 431, 541 N.Y.S.2d 340, 539 N.E.2d 96 [1989] ). This said, "where the pleaded facts state a cause of action, documentary evidence may result in a dismissal only where it has been shown that a material fact as claimed by the pleader is not a fact at all and no significant dispute exists regarding it" ( Acquista v. New York Life Ins. Co., 285 A.D.2d 73, 76, 730 N.Y.S.2d 272 [1st Dept. 2001], internal quotations and citations omitted).

The PREP Act was enacted in 2005, and is invoked when the Secretary of Health and Human Services determines that a disease or health condition exists that constitutes a public health emergency ( 42 U.S.C. § 247d-6d [b]). Thereafter, the Secretary "may make a Declaration through publication in the Federal Register, recommending ... the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures.." This was done to address the COVID-19 pandemic (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg.15. 198 [March 10, 2020]). Under the PREP Act, a "covered countermeasure" is a drug, biological product, or device that is a "qualified pandemic or epidemic product" or a "security countermeasure" or is "authorized for emergency use by the Federal Food, Drug, and Cosmetic Act. The PREP Act does not define "administration" and "use," but the Secretary's Declaration states that "administration" of covered countermeasures "means physical provision of countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures."

Immunity under the PREP Act applies to any loss or claim that has a causal relationship to the administration to or use by a "covered person" arising out of or relating to the administration of a covered countermeasure ( 42 U.S.C § 247d-6d(a)(1), with the exception to immunity being "death or serious physical injury proximately caused by willful misconduct." A claim falling under the PREP Act must be filed in federal court, and the Act creates a fund known as the Covered Countermeasure Process Fund ("CCPF") for "purposes of providing timely, uniform, and adequate compensation to eligible individuals for covered injuries" ( 42 U.S.C.A. § 247d-6e [a]).

The PREP Act was clarified on April 17, 2020, by Advisory Opinion 20-01, to provide that a person did not lose immunity (even if the person or entity was not a covered person) if that person could have reasonably believed that it was a covered person, or the product administered was not a covered countermeasure. Since then, the Secretary's Declaration has been amended five times. On June 4, 2020, the Secretary amended the Declaration for a second time to clarify retroactively the definition of "covered countermeasures" to include products that are used "to limit the harm that COVID-19 ... might otherwise cause." The third clarification included who may meet the definition of a "covered person" as a "program planner" and that the "use" and "administration" of countermeasures extends beyond physical distribution of countermeasures to recipients to include all program planning decisions and activities. The fourth clarification stated that the Act must be construed in accordance with these advisory opinions and acknowledged that there can be situations where not administering a covered countermeasure to a particular individual falls within the PREP Act, particularly where is involves a product in limited supply. A fifth HHS Advisory Opinion (21-01) again confirmed that the Act can apply to allegations of failure to act or inaction.

For the reasons that follow the Court grants the motion to dismiss to the extent of dismissing the plaintiff's Third Cause of Action (negligence per se) and denies the motion to dismiss in all other respects.

Turning first to the defendants’ defense of lack of subject matter jurisdiction, the Court is mindful that "parties have been litigating similar disputes throughout the ongoing pandemic and district courts have consistently held that they do not have jurisdiction over them" and there is a "broad consensus of district courts in this circuit and nationwide" on the issue of subject matter jurisdiction ( Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center , 2021 WL 4776610 [E.D.N.Y. October 12, 2021, 20-CV-5153] citations omitted). All said, the PREP Act does not afford federal courts exclusive subject matter jurisdiction over what has been pled here as a state claim ( Dupervil v. Alliance Health Operations , LLC , 516 F.Supp. 3d 238 [E.D.N.Y. 2021] ).²

Turning next to the defendants’ claim of immunity under New York's EDTPA (Public Health Law Article...