<font color="red">DO NOT FILE IN THIS CASE</font> TRANSFERRED TO CAMDEN - NEW CIVIL ACTION NO. 1:22-2301

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ESTATE OF FRANCES D. DEROSA,

Plaintiff,

Civil Action No. 22-2301 (ZNQ) (TJB)

v.

OPINION

GOVERNOR PHILLIP D. MURPHY, et al.,

Defendants.

QURAISHI, District Judge

THIS MATTER comes before the Court upon two Motions to Dismiss filed by

Defendants Philip D. Murphy, Judith M. Persichilli (collectively, “State Defendants”), Gateway

Care Center, LLC d/b/a Gateway Care Center n/k/a Shore Pointe Care Center, Jonathan

Rosenberg, and Yehudah Kramer (collectively, “Gateway Defendants”). (ECF Nos. 6, 8.) The

State Defendants filed a Moving Brief in support of their Motion to Dismiss. (“State Moving Br.”,

ECF No. 6-1.) The Gateway Defendants also filed a Moving Brief in support of their Motion to

Dismiss. (“Gateway Moving Br.”, ECF No. 8-1.) Plaintiff the Estate of Frances D. DeRosa by

and through her Administrator ad prosequendum, Lisa DeRosa-Palisi (the “Estate” or “Plaintiff”)

filed an Opposition to both the State Defendants’ Motions to Dismiss (“State Opp’n”, ECF No.

12) and the Gateway Defendants’ Motions to Dismiss (“Gateway Opp’n”, ECF No. 13). Both the

State Defendants (“State Reply”, ECF No. 19) and the Gateway Defendants (“Gateway Reply”,

ECF No. 20) replied to Plaintiff’s respective Oppositions.

The Court has carefully considered the parties’ submissions and decides the Motions

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

For the reasons set forth below, the Court will GRANT the State Defendant’s Motion to Dismiss

without prejudice and DENY the Gateway Defendant’s Motion to Dismiss.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated the instant action on April 20, 2022 by filing her Complaint. (“Compl.”,

ECF No. 1.) The Complaint generally alleges constitutional violations against the Defendants in

their responses to the COVID-19 pandemic. (See generally, id.)

Specifically, Plaintiff alleges that Frances DeRosa (“Frances” or “Decedent”), decedent, a

resident of Gateway,1 was diagnosed with COVID-19 (“COVID”) on April 20, 2020, and died of

COVID on April 27, 2020 at the age of 73. (Id. ¶ 1.) On March 9, 2020, Defendant-Governor

Murphy issued Executive Order No. 103 (“EO 103”) declaring a Public Health Emergency in New

Jersey as a result of the COVID-19 pandemic. (Id. ¶ 8.) In conjunction with the implementation

of EO 103, on March 31, 2020, Commissioner Persichilli issued a Directive entitled “Hospital

Discharges and Admissions to Post-Acute Care Settings” (“the Directive”). (Id. ¶ 9.) The

Directive ordered that post-acute care facilities such as Gateway are expressly prohibited from

denying admission or re-admission of patients/residents who have tested positive for COVID. (Id.

¶ 10.) During a conference call immediately after the issuance of the Directive, the Defendants

were warned that the Directive might prove to be dangerous. (See id. ¶ 11.) The day after the

conference call, the New Jersey Department of Health was inundated with calls from 99 facilities

stating that they did not have enough resources to properly staff or separate patients. (Id. ¶ 16.)

1 Gateway Care Center, LLC d/b/a Gateway Care Center n/k/a Shore Pointe Care Center (“Gateway”) was the licensed

owner/operator of that certain licensed nursing home, long term health care facility and/or a nursing facility commonly

known as Gateway Care Center. (Compl. ¶ 4.)

Within a week, 200 facilities notified the New Jersey Department of Health that they could not

accept new admissions. (Id.) Just a day after Commissioner Persichilli issued the Directive, three

national organizations publicly urged other states not to enforce the kind of policy being

implemented by the Directive and instead advocated for the creation of separate settings for

recovering COVID patients, including large field hospitals, dormitories, hotels, and shuttered

nursing homes or hospitals. (Id. ¶¶ 17‒20.)

On or about March 12, 2020, Lisa DeRosa-Palisi—Plaintiff Administrator ad

prosequendum and daughter of Frances—returned with her mother from a visit at Gateway. (Id.

¶ 52.) After her visit, Gateway’s Administrator, Jay Kramer, advised Plaintiff that the State of

New Jersey was ordering a shutdown of the Facility due to the fear of COVID. (Id. ¶ 53.) Plaintiff

asked to view the directive that came from Medicare/Medicaid. (Id. ¶ 54.) Plaintiff alleges that

“the printout clearly said that if a resident had a family member who visited on a regular basis

(Lisa was at Gateway a minimum of 5 days a week) and was important to the resident’s mental

well-being (Frances was also being treated for Schizophrenia, and both Plaintiff and Gateway

knew that no visits from Plaintiff would be devastating for Frances), special arrangements could

be made for that resident and visitor.” (Id.) Plaintiff expressed disagreement with this new policy

but was told that Gateway employs “‘trained professionals’ and that Plaintiff would be more of a

danger to Frances then Gateway would be.” (Id. ¶¶ 55‒57.) Kramer assured Plaintiff that Gateway

would be taking extra precautions. (Id. ¶ 58.)

Through the first two weeks of lockdown, Frances reported to Plaintiff that Gateway was

doing none of what they had told Plaintiff they were going to do in terms of implementing the

necessary protective measures against the virus. (Id. ¶ 60.) On March 31, 2020, the Directive was

issued, ordering that post-acute care facilities such as Gateway, were expressly prohibited from

denying admission or re-admission of patients/residents who have tested positive for COVID,

while also prohibiting post-acute care facilities from requiring a hospitalized patients/residents

who were determined to be “medically stable”, to be tested for COVID prior to admission/re-

admission. (Id. ¶ 62.) On April 10, 2020, Plaintiff was informed that Frances was showing signs

of COVID, but Gateway was not sure if it was only “seasonal allergies.” (Id. ¶ 64.) Plaintiff

demanded that Frances be tested for COVID. (Id.) Plaintiff was told that the CDC would not

allow Gateway to test Frances, and prevented Plaintiff from taking Frances herself to get tested by

threatening to deny her re-admission into Gateway. (Id. ¶ 65.) Plaintiff asked Gateway three times

over the next week to test Frances, but they would not do so. (Id. ¶ 66.) Finally, when Frances

was not doing well on April 17, 2020, Gateway had her tested seven days after informing Plaintiff

that Frances may be sick. (Id.) Three days later, on April 20, 2020, Plaintiff learned that Frances

tested positive for COVID. (Id. ¶ 67.) Frances was not admitted to a hospital. (Id.) Gateway

claimed to be isolating and treating Frances at the Facility. (Id. ¶ 68.) On April 24, 2020, Plaintiff

received a call that Frances’s oxygen levels were dropping, and she needed to go to the emergency

room. (Id.) Seven days later, Frances died from COVID. (Id.) Plaintiff subsequently filed the

five-count Complaint alleging 42 U.S.C. § 1983 (Count I) and N.J.S.A. 10:6-2(c) violations (Count

II) against the State Defendants and violations of the New Jersey Nursing Home Resident Rights

Act (Count III), Gross Negligence (Count IV), and Wrongful Death (Count V) against the Gateway

Defendants.

II. JURISDICTION

The Court has jurisdiction over Plaintiff’s § 1983 claims under 28 U.S.C. § 1331, and

jurisdiction over the state law claims under 28 U.S.C. § 1367.

III. LEGAL STANDARD

Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss

on the pleadings, courts “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008) (quotations omitted). Under such a standard, the factual allegations set forth in

a complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

However, Rule 12(b)(6) only requires a “short and plain statement of the claim showing

that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The complaint must include

“enough factual matter (taken as true) to suggest the required element. This does not impose a

probability requirement at the pleading stage, but instead simply calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence of the necessary element.” Phillips,

515 F.3d at 234 (citation and quotations omitted); Covington v. Int’l Ass’n of Approved Basketball

Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in detail the

facts upon which he bases his claim. The pleading standard is not akin to a probability

requirement; to survive a motion to dismiss, a complaint merely has to state a plausible claim for

relief.” (citation and quotations omitted)).

In sum, under the current pleading regime, when a court considers a dismissal motion, three

sequential steps must be taken: first, “it must take note of the elements the plaintiff must plead to

state a claim.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quotations

omitted). Next, the court “should identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id. (quotations omitted). Lastly, “when

there are well-pleaded factual allegations, the court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.” Id. (quotations and brackets

omitted).

IV. DISCUSSION

A. STATE DEFENDANTS

Plaintiff alleges two counts against the State Defendants—42 U.S.C. § 1983 violations

(Count I) and N.J.S.A. 10:6-2(c) violations (Count II). Specifically, Plaintiff alleges that the State

Defendants acted under the color of state law when they Frances of her guaranteed right to life

pursuant to the Fifth and Fourteenth Amendments of the United States Constitution as well as New

Jersey Civil Rights Act, N.J.S.A. 10:6-2(c). (Compl. ¶¶ 79‒80, 94.) In opposition, the State

Defendants argue that they are entitled to qualified immunity because the actions at issue were

reasonable and violated no clearly established law. (State Opp’n at 12.)

Because the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2(c), “was modeled after

§ 1983,” courts interpret state-law claims based on the same underlying rights (such as Plaintiffs’

claims here) “analogously.” Castro v. New Jersey, 521 F. Supp. 3d 509, 517 (D.N.J. 2021), appeal

dismissed sub nom. Castro v. Cnty of Atlantic, Civ. No. 21-1578, 2021 WL 7710069 (3d Cir. Oct.

28, 2021). The Court will therefore do the same.

“Qualified immunity shields government officials from civil damages liability unless the

official violated a statutory or constitutional right that was clearly established at the time of the

challenged conduct,” Reichle v. Howards, 566 U.S. 658, 664 (2012). The party asserting qualified

immunity has the burden of establishing that the doctrine applies. See Reedy v. Evanson, 615 F.3d

197, 223 (3d Cir. 2010). The qualified immunity analysis generally has two prongs, which a court

may address in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). One prong asks

whether the facts that the plaintiff has alleged or shown make out a violation of a statutory or

constitutional right. Id. at 232. The other prong asks whether the plaintiff’s asserted right was

clearly established at the time of the challenged conduct. Id. The latter prong “is an objective

inquiry, to be decided by the court as a matter of law.” Doe v. Groody, 361 F.3d 232, 238 (3d Cir.

2004). “The relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).

“[T]he burden is on the defendants to establish they are entitled to qualified immunity.” E.

D. v. Sharkey, 928 F.3d 299, 306 (3d Cir. 2019). “Officials demonstrate they are entitled to

qualified immunity only if they can show that a reasonable person in their position at the relevant

time could have believed, in light of clearly established law, that their conduct comported with

recognized legal standards.” Id. As to the second prong, “[t]he inquiry focuses on the state of the

relevant law when the violation allegedly occurred.” Williams v. Sec’y Pa. Dep’t of Corr., 848

F.3d 549, 570 (3d Cir. 2017). “To be clearly established, a legal principle must have a sufficiently

clear foundation in then-existing precedent.” D.C. v. Wesby, 138 S. Ct. 577, 589 (2018). Stated

simply, the rule must be “settled law.” Id. A principle is settled law if it is dictated by “controlling

authority” or a “consensus of cases of persuasive authority.” Id. at 589-90. “It is not enough that

the rule is suggested by then-existing precedent.” Id. at 590. Rather, “[t]he precedent must be

clear enough that every reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply.” Id.

Here, those two elements require Plaintiff to plausibly allege that it was clearly established

in March and April of 2020 that, under the uncertainty and the difficult balancing of interests

required at that time, it violated substantive due process for an official to enact a policy like the

Directive in order to ensure that the State had sufficient hospital beds and other resources to meet

the demand of the crush of patients who were expected to need acute care as a result of a rapidly

spreading, novel, and deadly virus. The Directive provided in relevant part:

In order to respond to the increase in positive cases there is an urgent

need to expand hospital capacity to be able to meet the demand for

patients with COVID-19 requiring acute care. . . .

During this global health emergency, all post-acute care settings

must comply with the expedited receipt of patients/residents

discharging from hospitals. Patients/residents are deemed

appropriate for discharge to the post-acute care setting upon a

determination by the hospital physician or designee that the resident

is medically stable for return. A rapid review of necessary resources

to provide adequate, safe care in the post-acute care setting is

imperative during this time.

Hospital discharge planners must confirm to the post-acute care

setting, by telephone, that the patient/resident is medically stable for

discharge. Comprehensive discharge instructions must be provided

by the hospital prior to the transport of a patient/resident to the post-

acute care setting.

No patient/resident shall be denied re-admission or admission to the

post-acute care setting solely based on a confirmed diagnosis of

COVID-19. Persons under investigation for COVID-19 who have

undergone testing in the hospital shall not be discharged until results

are available. Post-acute care facilities are prohibited from requiring

a hospitalized patient/resident who is determined medically stable

to be tested for COVID-19 prior to admission or readmission.

Judith M. Persichilli, Comm’r, “Hospital Discharges and Admissions to Post-Acute Care

Settings,” Mar. 31, 2020.2 Plaintiff alleges that the State Defendants violated Frances’s

constitutional right to life, protected by substantive due process under the Fifth and Fourteenth

Amendments of the U.S. Constitution and its New Jersey corollary. (Compl. ¶¶ 78–95.) To

succeed at this stage and in this context, a substantive due process claim must plausibly allege not

simply that the government has made a bad choice, but rather that it has “has abused its power in

an arbitrary manner that ‘shocks the conscience.’” Mammaro v. New Jersey Div. of Child Prot. &

Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting Cnty of Sacramento v. Lewis, 523 U.S.

833, 846–47 (1998)). This rule “points clearly away from liability, or clearly toward it, only at the

ends of the tort law’s spectrum of culpability”; it does not impose “liability whenever someone

cloaked with state authority causes harm.” Lewis, 523 U.S. at 848.

Here, Plaintiff fails to plead a clearly established right at the time of the challenged conduct.

“[T]he clearly established right must be defined with specificity.” City of Escondido v. Emmons,

139 S. Ct. 500, 503 (2019). Thus, “[a] clearly established right is one that is ‘sufficiently clear

that every reasonable official would have understood that what he is doing violates that right.’”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards, 1566 U.S. 658, 664

(2012)). A right is clearly established when precedent exists that is like the case at hand, although

the facts of the precedent do not need to be “materially similar.” See Anderson v. Creighton, 483

U.S. 635, 640 (1987). While there is no need for a “case directly on point . . . existing precedent

must have placed the statutory or constitutional question beyond debate,” and the “violative nature

2https://nj.gov/health/legal/covid19/3-31-2020%20Hospital%20Discharges%20and%20Admissions%20to%20

PostAcute%20Care%20Settings.pdf.

of particular conduct” must not be defined at a “high level of generality.” See Ashcroft v. Al-Kidd,

563 U.S. 731, 741-42 (2011). To determine whether a right is clearly established, the Court will

“look first for ‘applicable Supreme Court precedent.’ If none exists, [the Court must] consider

whether there is a case of controlling authority in our jurisdiction or a ‘robust consensus of cases

of persuasive authority in the Courts of Appeals that could clearly establish a right for purposes of

qualified immunity.’” Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist., 877 F.3d 136,

142 (3d Cir. 2017) (citing Mammaro, 814 F.3d at 169).

Plaintiff asserts violations of constitutional rights under the Fifth and Fourteenth

Amendments and the New Jersey State Constitution, however, the Court is not persuaded that the

contours of these rights are sufficiently particular to the circumstances at hand such that a

reasonable officer understood what he or she did to violate those rights. The particular right at

issue—the right to life in the context of an infectious disease—has never been recognized, let alone

addressed by courts. “The . . . mandates were implemented in the throes of a rare, once-in-a-

century global health crisis for which guidance has constantly evolved. It follows then that it was

not sufficiently clear to a reasonable official that what he or she was doing violated that right.”

Wright-Gottshall v. New Jersey, Civ. No. 21-18954, 2023 WL 3183288, at *8 (D.N.J. May 1,

2023). Because the clearly established standard has not been satisfied, the Court need not decide

whether the alleged facts make out a violation of a constitutional right. See Zaloga v. Borough of

Moosic, 841 F.3d 170, 174 (3d Cir. 2016) (declining to conduct any analysis on the first prong

where the second prong was not met).

Still, the Court further finds that Plaintiff also fails to allege a violation of a constitutional

right. Plaintiff specifically alleges that Frances was deprived of her “fundamental right to life

without due process of law” pursuant to the Fifth and Fourteenth Amendment of the Constitution

as well as N.J.S.A. 10:6-2(c). (Compl. ¶¶ 84, 94.) Presumably, Plaintiff makes this allegation

because Frances allegedly passed away from COVID as a direct result of the Directive’s poor

planning. Plaintiff’s constitutional “right to life” argument must fail. “The Fifth Amendment

states, in relevant part, no person ‘shall be compelled in any criminal case to be a witness against

himself nor be deprived of life, liberty, or property, without due process of law...’” Spence v.

Astrue, Civ. No. 19-3031, 2019 WL 6218264, at *3 n.2 (E.D. Pa. Nov. 20, 2019) (quoting U.S.

Const. V). The present matter is not a criminal proceeding calling for the death penalty, hence,

[the State Defendant’s Directive] does not impact her “right to life.” Plaintiff offers no precedent

to the contrary. (Compl. ¶ 84.) Plaintiff cites Washington v. Glucksberg, 521 U.S. 702, 710 (1997),

but that was a case about assisted-suicide prohibitions, see id. Plaintiff cites Cruzan ex rel. Cruzan

v. Director, Missouri Dep’t of Health, 497 U.S. 261, 281 (1990), but that was a case about parents’

ability to withdraw life-saving treatment from a child in “a persistent vegetative state,” id. at 265–

66. Plaintiff also cites West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943), but that

was a case about whether schools can force students to salute the American flag, id. at 626–30.

Plaintiff ultimately ignores the longstanding legal guidance about government decision-making in

the midst of a public-health crisis which provides that, because of state officials’ duty “to guard

and protect” the “safety and the health of the people,” they are permitted to take actions they deem

necessary so long as those actions have at least some “real or substantial relation” to the crisis and

are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

See Jacobson v. Massachusetts, 197 U.S. 11, 28 (1905). In light of Plaintiff’s failure to allege that

the State Defendants violated a clearly established right and to allege a constitutional violation,

the State Defendants are entitled to qualified immunity. Accordingly, the Court will grant the

State Defendants’ motion to dismiss without prejudice.

B. GATEWAY DEFENDANTS

Counts III–V of the Complaint—violations of the New Jersey Nursing Home Resident

Rights Act (Count III), Gross Negligence (Count IV), and Wrongful Death (Count V)—allege

claims against the Gateway Defendants. Specifically, Plaintiff alleges that the Gateway

Defendants did not utilize PPE, did not test Decedent for COVID, and did not send Decedent to

the hospital when she tested positive for COVID. (Compl. ¶¶ 64–67.) Plaintiff also asserts

multiple claims of gross negligence, contending that the Gateway Defendants failed to test

Decedent for COVID after she began exhibiting symptoms, prohibited Plaintiff from taking

Decedent to get tested, and failed to separate staff and residents who had tested positive. (Id. ¶¶

71–74.) Plaintiff alleges that the Gateway Defendants allowed the nursing staff who were infected

to continue caring for residents and prevented staff from gaining access to PPE. (Id. ¶ 74.) Plaintiff

also asserts claims for intentional misconduct, contending that the Gateway Defendants were in

“deliberate breach” and abused Decedent in the form of “intentional deprivation of care, services,

and resources.” (Id. ¶¶ 74, 99). Plaintiff also alleged that the Gateway Defendants intentionally

refused to provide PPE to staff and residents. (Id. ¶ 61.) In their Motion to Dismiss, the Gateway

Defendants claim that Plaintiff’s allegations which relate to the use, allocation, or administration

of such resources are covered and subsequently barred under the PREP Act. (Gateway Moving

Br. at 9.)

1. The PREP Act

In 2005, Congress passed the Public Readiness and Emergency Preparedness Act (“PREP

Act”), 42 U.S.C. §§ 247d-6d, 247d-6e. Estate of Maglioli v. Alliance HC Holdings LLC, 16 F.4th

393, 400 (3d Cir. 2021). “The PREP Act protects certain covered individuals—such as pharmacies

and drug manufacturers—from lawsuits during a public-health emergency.” Id. The Act lies

dormant until invoked by the Secretary of the Department of Health and Human Services (“HHS”).

Id. If the Secretary deems a health threat a public-health emergency, he may publish a declaration

in the Federal Register recommending certain “covered countermeasures.” Id. (citing § 247d-

6d(b)(1)). When the Secretary makes such a declaration, the covered individuals become immune

from suit and liability from claims related to the administration of a covered countermeasure. Id.

(citing § 247d-6d(a)(1)).

In March 2020, the Secretary issued a declaration under the PREP Act, declaring that

COVID-19 is a public-health emergency. Id. at 401. The Secretary recommended a series of

covered countermeasures that includes drugs, devices, and products “used to treat, diagnose, cure,

prevent, or mitigate COVID-19,” subject to the PREP Act’s definitions. Id. The Secretary has

since amended the declaration seven times and the HHS has also issued advisory opinions and

guidance letters on various issues related to the declaration. Id.

The Secretary controls the scope of immunity through the declaration and amendments,

within the confines of the PREP Act. Id. A covered person enjoys immunity from all claims

arising under federal or state law that relate to the use of a covered countermeasure. Id. (citing 42

U.S.C. § 247d-6d(a)(1)). Covered persons include manufacturers, distributors, program planners,

and qualified persons, as well as their officials, agents, and employees. Id.. (citing 85 Fed. Reg.

at 15,201). The scope of immunity is broad. Covered persons are immune from “any claim for

loss that has a causal relationship with the administration to or use by an individual of a covered

countermeasure.” Id. (citing 42 U.S.C. § 247d-6d(a)(2)(B)). That includes claims relating to “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.

Congress did not leave those injured by covered countermeasures without recourse. The

Act establishes a fund to compensate “eligible individuals for covered injuries directly caused by

the administration or use of a covered countermeasure.” Id. (citing § 247d-6e(a)). The Secretary

has broad authority to issue regulations determining who and what types of injuries qualify for

compensation under the fund. Id. (citing § 247d-6e(b)(4)-(5)). There is one exception to this

statutory immunity. The PREP Act provides “an exclusive Federal cause of action against a

covered person for death or serious physical injury proximately caused by willful misconduct.”

Id. (citing § 247d-6d(d)(1)). “Willful misconduct” is in turn defined as “an act or omission that is

taken—(i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual

justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly

probable that the harm will outweigh the benefit.” Id. (citing § 247d-6d(c)(1)(A)). The Act

clarifies that willful misconduct “shall be construed as establishing a standard for liability that is

more stringent than a standard of negligence in any form or recklessness.” Id. (citing § 247d-

6d(c)(1)(B)). Notwithstanding the statutory definition, the Secretary may issue regulations that

further restrict what acts or omissions qualify as willful misconduct. Id. (citing § 247d-

6d(c)(2)(A)).

Despite the Gateway Defendants’ contentions to contrary, “just because the PREP Act

creates an exclusive federal cause of action does not mean it completely preempts the estates’

state-law claims.” Id. at 410. To determine whether Plaintiff’s state-law claims fall within the

scope of the exclusive federal cause of action, the Court “must determine whether [Plaintiff] could

have brought their claims under the PREP Act’s cause of action for willful misconduct.” Id.

Although the Gateway Defendants argue that Plaintiff’s claims are for willful misconduct, and

correctly enumerate the elements of willful misconduct, Plaintiff—like the plaintiffs in Maglioli—

asserts counts of negligence and punitive damages, not willful misconduct. A claim for negligence

under New Jersey law requires the familiar elements of duty, breach, causation, and damages. Id.

at 411 (citing Townsend v. Pierre, 221 N.J. 36, 110 (N.J. 2015)). In contrast, a claim for willful

misconduct under the PREP Act requires wrongful intent, knowledge that the act lacked legal or

factual justification, and disregard of a “known or obvious risk that is so great as to make it highly

probable that the harm will outweigh the benefit.” Id. (citing 42 U.S.C. § 247d-6d(c)(1)(A)). The

rule of construction removes any doubt: the PREP Act’s cause of action for willful misconduct

“establish[es] a standard for liability that is more stringent than a standard of negligence in any

form or recklessness.” Id. (citing § 247d-6d(c)(1)(B)).

“Willful misconduct is a separate cause of action from negligence.” Id. The elements of

the state cause of action need not “precisely duplicate” the elements of the federal cause of action

for complete preemption to apply. Id. But complete preemption does not apply when federal law

creates an entirely different cause of action from the state claims in the complaint. Id. (citing

DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 452-53 (3d Cir. 2003)). Congress could have

created a cause of action for negligence or general tort liability, but it did not. Id. Just as intentional

torts, strict liability, and negligence are independent causes of action, so too willful misconduct

under the PREP Act is an independent cause of action. The question therefore is whether

Plaintiff’s allegations fall within the scope of the PREP Act’s cause of action—“that is, whether

the claims could have been brought under that section.” Id. But nowhere in the Complaint does

Plaintiff allege or imply that the nursing homes acted “intentionally to achieve a wrongful

purpose.” Id. (citing 42 U.S.C. § 247d-6d(c)(1)(A)(i)). Nor does Plaintiff claim that the Gateway

Defendants acted “knowingly without legal or factual justification.” Id. (citing § 247d-

6d(c)(1)(A)(ii)). As Gateway Defendants observe, “[a]t most, the allegations contained in the

Complaint amount to ordinary negligence claim.” (Gateway Moving Br. at 25.) Thus, because

Plaintiff did not allege a willful misconduct claim, the PREP Act does not bar Counts III–V of the

Complaint.

2. New Jersey COVID-19 Immunity Statute

The Gateway Defendants next argue that the New Jersey COVID-19 Immunity Statute bars

Plaintiff’s Complaint. (Gateway Moving Br. at 9.) The Gateway Defendants cite two New Jersey

Law Division cases in support of their contention that Plaintiff’s Complaint is barred by New

Jersey’s COVID-19 Immunity Statute: Pantoliano v. Care One at Wellington, BER-L-2226-22

(August 2, 2022) and Estate of Whitehurst v. Hallmark Health Care, LLC, MRS-L-678-22 (August

22, 2022). Both of those cases recognize that pursuant to L. 2020, c. 18 § 1(c), there is an exception

to P.L. 2020, Ch.18 for acts of omissions constituting gross negligence. Id. at 12; Id. at 2.

Moreover, although the Gateway Defendants attempt to liken this matter to these two cases, both

suits were dismissed because the plaintiffs failed to state claims for gross negligence. That is not

the case here.

Accepting the allegations of the Complaint as true, Plaintiff has sufficiently pled all three

of its claims against the Gateway Defendants. As noted above, a claim for negligence under New

Jersey law requires the familiar elements of duty, breach, causation, and damages. Maglioli at

411. A claim for “gross negligence” is essentially a negligence claim directed at the “upper reaches

of negligent conduct.” Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super. 435, 457 n.6 (App.

Div. 2009). Plaintiff pleads that it was the Gateway Defendants’ responsibility to take care of

Frances (Compl. ¶ 66), they breached their duty to care for Frances by neglecting to implement

safety measures during the COVID-19 pandemic (id. ¶¶ 71–75) which caused Frances to contract

COVID and ultimately pass away (id. ¶ 107). See Powell v. Seton Hall Univ., Civ. No. 21-13709,

2022 WL 1224959, at *5 (D.N.J. Apr. 26, 2022) (finding that the plaintiff sufficiently pled a gross

negligence claim by pleading that the defendant university neglected to provide effective treatment

following a knee injury.) Regarding punitive damages, the Complaint states that “Plaintiff brings

this claim pursuant to the provisions of the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et.

seq., for the benefit of the next of kin of Frances, pursuant to N.J.S.A. 2A:15-3.” (Compl. ¶ 109).

While punitive damages are not available for gross negligence, under the Survivor’s Act, N.J.S.A.

2A:15–3 a claim for punitive damages may be sustained even absent an award of compensatory

damages for pain and suffering. Smith v. Whitaker, 160 N.J. 221, 243 (1999). Accordingly, Counts

III–V of the Complaint alleging gross negligence, wrongful death, and punitive damages all

survive the Gateway Defendants’ Motion to Dismiss.

V. CONCLUSION

For the reasons stated above, the Court will GRANT the State Defendant’s Motion to

Dismiss without prejudice and DENY the Gateway Defendant’s Motion to Dismiss. Plaintiffs will

be given leave to file an Amended Complaint, limited to an attempt to cure the defects noted in

this Opinion, within 30 days. Failure to cure the defects noted in this Opinion may lead to dismissal

with prejudice. An appropriate Order will follow.

Date: May 12, 2023

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE