The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT SINGER, Individually and ) Case No. 1:21-cv-02102
as Administrator of the Estate of )
Gloria A. Singer (Deceased), ) Judge J. Philip Calabrese
)
Plaintiff, ) Magistrate Judge Thomas M. Parker
)
v. )
)
MONTEFIORE, et al., )
)
Defendants. )
)
STEVEN ROSS, Individually and as ) Case No. 1:21-cv-02103
Executor of the Estate of Devorah )
Bette Ross (Deceased) ) Judge J. Philip Calabrese
)
Plaintiff, ) Magistrate Judge
) William H. Baughman, Jr.
v. )
)
MONTEFIORE, et al., )
)
Defendants. )
)
ROBYN FINKENTHAL ) Case No. 1:21-cv-02105
KULBARSH, as Administrator of )
the Estate of Marlene S. Finkenthal ) Judge J. Philip Calabrese
(Deceased), )
) Magistrate Judge David A. Ruiz
Plaintiff, )
)
v. )
)
MONTEFIORE, et al., )
)
Defendants. )
)
ESTATE OF CAROL KENNEY, by ) Case No. 1:21-cv-02106
Nicholas Laudato, Administrator of )
the Estate of Carrol Kenney ) Judge J. Philip Calabrese
(Deceased), )
) Magistrate Judge
Plaintiff, ) Jonathan D. Greenberg
)
v. )
)
MONTEFIORE HOME, et al., )
)
Defendants. )
)
NICHOLAS LAUDATO, ) Case No. 1:21-cv-02120
Administrator of the Estate of Carrol )
Kenney (Deceased), ) Judge J. Philip Calabrese
)
Plaintiff, ) Magistrate Judge David A. Ruiz
)
v. )
)
MONTEFIORE HOME, et al. )
)
Defendants. )
)
STEVEN A. ROSS, Individually and ) Case No. 1:21-cv-02148
as Executor of the Estate of Devorah )
Bette Ross (Deceased), ) Judge J. Philip Calabrese
)
Plaintiff, ) Magistrate Judge
) Jonathan D. Greenberg
v. )
)
MONTEFIORE, et al. )
)
Defendants. )
)
ROBYN FINKENTHAL ) Case No. 1:21-cv-02125
KULBARSH, as Administrator of )
the Estate of Marlene S. Finkenthal ) Judge J. Philip Calabrese
(Deceased), )
) Magistrate Judge
Plaintiff, ) Jonathan D. Greenberg
)
v. )
)
MONTEFIORE, et al., )
)
Defendants. )
)
OPINION AND ORDER
Plaintiffs bring wrongful death claims under State law against a nursing home
and its employees, alleging that Defendants failed to protect against the spread of
Covid-19. More particularly, Plaintiffs claim that Defendants engaged in willful
misconduct, including falsifying Covid-19 test results and failing to comply with
masking requirements, that resulted in the deaths of residents of the nursing home.
Federal law completely preempts such claims if they result from “covered
countermeasures”—those actions specifically taken pursuant to certain regulatory
approvals and meeting particular statutory definitions. On the record before the
Court, Defendants have not established that the countermeasures at the core of
Plaintiffs’ claims of willful misconduct meet the prerequisites necessary for federal
preemption. Nor does the record show that they do. For these reasons, as more fully
explained below, the Court GRANTS Plaintiffs’ motions to remand.
ANALYSIS
A defendant may remove a civil action to federal court if the action is one over
which the federal court could have exercised original jurisdiction. 28 U.S.C. §§ 1441,
1446. Removal statutes are strictly construed, and “all doubts should be resolved
against removal.” Mays v. City of Flint, 871 F.3d 437, 442 (6th Cir. 2017) (quoting
Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007)). The party removing a case
bears the burden of establishing federal jurisdiction. Everett, 460 F.3d at 822 (citing
Gafford v. General Elec. Co., 997 F.2d 150, 155 (6th Cir. 1993)).
I. Federal Question Jurisdiction
In these cases, Defendants remove primarily based on federal question
jurisdiction. Under that statute, the “district courts shall have original jurisdiction
over all civil actions arising under the Constitution, laws, or treatises of the United
States.” 28 U.S.C. § 1331. Generally, an action arises under the law that creates the
cause of action. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808 (1986)
(quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)).
I.A. The Well-Pleaded Complaint Rule
To determine whether a complaint asserts a cause of action arising under
federal law, federal courts employ the well-pleaded complaint rule. Loftis v. United
Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir. 2003). Under this rule, courts examine
the allegations on the face of the complaint and ignore potential defenses. See, e.g.,
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). Because the plaintiff is the
master of the complaint, if he or she chooses to assert claims under State law alone,
that claim will generally not be re-characterized as a federal claim for purposes of
removal. Loftis, 342 F.3d at 515 (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S.
58, 63 (1987)). A case may not be removed on the basis of a federal defense, including
preemption, even if the complaint anticipates the defense and the defense presents
the only question truly at issue. Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d 318,
322 (6th Cir. 2005) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)).
Ordinarily, federal preemption is a defense that does not appear on the face of a well-
pleaded complaint. Metropolitan Life Ins., 481 U.S. at 63–64.
However, an exception to the well-pleaded complaint rule bears on removal in
these cases. Where a federal statute completely preempts a State-law cause of action,
a federal court may exercise jurisdiction on removal notwithstanding the well-
pleaded complaint rule. Beneficial Nat’l Bank, 539 U.S. at 8. In such circumstances,
Congress so completely preempts a particular area that any claim asserted
necessarily has a federal character. Metropolitan Life Ins., 481 U.S. at 63–64.
Complete preemption for purposes of removal is extraordinary, and the Supreme
Court has found it in only three statutes—the Labor Management Relations Act; the
Employee Retirement Income Security Act; and the National Bank Act. Roddy, 395
F.3d at 323 (citing Beneficial Nat’l Bank, 539 U.S. at 6–7). In those instances, the
federal statute provides the exclusive cause of action, sets forth procedures governing
it, and provides remedies. Id. (citing Beneficial Nat’l Bank, 539 U.S. at 8). “Once an
area of state law has been completely pre-empted, any claim purportedly based on
that pre-empted state-law claim is considered, from its inception, a federal claim, and
therefore arises under federal law.” Rivet v. Regions Bank of La., 522 U.S. 470, 472
(1998).
Complete preemption that supports removal differs from ordinary federal
preemption. Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir. 1995) (en banc). A
defendant may prove that a federal statute preempts the plaintiff’s claims, but that
will not support removal without more. Caterpillar, 482 U.S. at 398. To support
removal, a statute must “occupy the regulatory field with respect to a particular
subject and to create a superseding cause of action.” Roddy, 395 F.3d at 323 (quoting
Warner, 46 F.3d at 535). Moreover, the Sixth Circuit has noted that Congress must
“inten[d] to transfer jurisdiction to federal courts.” Peters v. Lincoln Elec. Co., 285
F.3d 456, 468 n.11 (6th Cir. 2002). For this reason, complete preemption represents
a “narrow exception” to the well-pleaded complaint rule. AmSouth Bank v. Dale, 386
F.3d 763, 776 (6th Cir. 2004).
I.B. The PREP Act
Against this backdrop of removal practice and procedure, Defendants remove
this case based on federal question jurisdiction under the Public Readiness and
Emergency Preparedness Act of 2005, 42 U.S.C. §§ 247d-6d & 247d-6e. In the Act,
Congress protected certain covered entities against lawsuits during a public health
emergency. In March 2020, the Secretary of the Department of Health and Human
Services declared Covid-19 a public health emergency under the Act and
recommended various countermeasures to prevent or mitigate the spread of Covid-19.
Declaration Under the PREP Act for Medical Countermeasures Against COVID-19,
85 Fed. Reg. 15,198, 15,201 (Mar. 17, 2020). This state of emergency extends through
October 1, 2024 or the final day the declared emergency remains in effect, whichever
occurs first. Id. at 15,202. This declared emergency remains in effect.
II.B.1. Immunity under the PREP Act
The Act provides immunity for a covered person under federal and State law
for all claims that relate to the use of authorized countermeasures. It provides that
“a covered person shall be immune from suit and liability under Federal and State
law” for “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.” 42 U.S.C.
§ 247d-6d(a)(1). Though broad, this statutory immunity applies only to “a claim for
loss that has a causal relationship with the administration to or the use by an
individual of a covered countermeasure.” Id. § 247d-6d(a)(2)(B). In such cases, the
Act creates a fund for those injured by covered countermeasures. Id. § 247d-6e(a).
II.B.2. Exception for Willful Misconduct
Congress provided an exception to statutory immunity (and compensation
through the fund). The Act provides an exclusive federal remedy for death or serious
physical injury that willful misconduct proximately causes. Specifically, the statute
provides:
(d) EXCEPTION TO IMMUNITY OF COVERED PERSONS
(1) IN GENERAL
Subject to subsection (f) [relating to claims by or against the United
States and not applicable here], the sole exception to the immunity from
suit and liability of covered persons set forth in subsection (a) shall be
for an exclusive Federal cause of action against a covered person for
death or serious physical injury proximately caused by willful
misconduct, as defined pursuant to subsection (c), by such covered
person. For purposes of section 2679(b)(2)(B) of title 28 [involving
claims against employees of the United States and not applicable here],
such a cause of action is not an action brought for violation of a statute
of the United States under which an action against an individual is
otherwise authorized.
(2) PERSONS WHO CAN SUE
An action under this subsection may be brought for wrongful death or
serious physical injury by any person who suffers such injury or by any
representative of such a person.
Id. § 247d-6d(d). A plaintiff may only maintain such an action in the United States
District Court for the District of Columbia. Id. § 247d-6d(e)(1). Additionally, the
statute provides procedures for suit, including identifying the governing law,
pleading requirements, discovery rules, and provisions for damages and appeal,
among other things. Id. § 247d-6d(e)(2)–(10).
Based on its statutory text and structure, the PREP Act appears to fall into the
narrow class of statutes that completely preempt a particular field so as to support
removal—at least where the plaintiff alleges death or serious physical injury against
a covered person proximately caused by willful misconduct. Because Section 247d-
6d(a) extends immunity to all claims under federal and State law for loss relating to
covered countermeasures, complete preemption for removal purposes turns on
Defendants’ use of covered countermeasures in the first instance. Put another way,
the path to the exception in subsection (d) of the statute runs through subsection (a),
which requires covered countermeasures.
I.C. Plaintiffs’ Allegations
Against that statutory background, the Court considers the allegations of
Plaintiffs’ complaints in these cases. Though the complaints in these related matters
differ on the margins, each makes fundamentally the same allegations.
I.C.1. Singer
In Singer, Plaintiff filed suit against a nursing home (in various corporate
manifestations), its administrator, and two of its nurses for wrongful death. (ECF
No. 1-2, ¶¶ 2–10, PageID #10–12.) In the complaint, Plaintiff references
recommendations for health care professionals that the Centers for Disease Control
made for Covid-19, the Governor’s executive orders declaring a state of emergency
due to Covid-19, and the resources that the Ohio Department of Health made
available for nursing homes and their residents. (Id., ¶¶ 11, 12 & 14, PageID #12–13.)
Further, the complaint avers that Defendants implemented certain protocols in
response to Covid-19, including restrictions on visits and group activities, daily
monitoring of symptoms, and the use of masks and other hygienic and screening
measures for employees. (Id., ¶ 17, PageID #13.) Plaintiff alleges that Defendants
did not follow these precautionary measures. (Id., ¶ 18, PageID #13.) Additionally,
Plaintiff alleges that Defendants falsified Covid-19 test results, improperly
performed the tests, or refused to test to avoid identifying positive results; ignored
staff complaints about Covid-19 prevention and treatment protocols; and failed to
implement recommendations, resulting in unsafe conditions that led to the injuries
and death of Gloria Singer. (Id., ¶¶ 19–24, PageID #14.)
Based on these allegations, Plaintiff asserts four causes of action for breaches
of the standard of care and for wrongful death. (Id., ¶¶ 26–59, PageID #14–20.) In
bringing these claims, Plaintiff makes certain allegations that are relevant here.
First, in Count I, Plaintiff avers that in September and October 2020 “Defendants
recklessly, intentionally, willfully, and wantonly conducted improper and false
testing” of the decedent for Covid-19. (Id., ¶ 30, PageID #15.) Further, Plaintiff
alleges that “Defendants recklessly, intentionally, willfully, and wantonly hid the fact
that other patients and residents” of the nursing home were infected, “thereby
exposing” the decedent. (Id.)
Second, in Count II, Plaintiff alleges gross negligence in conducting and
reporting false Covid-19 tests “in addition to being recklessly, intentionally, willfully,
and wantonly in that they hid the fact that other patients and residents” of the
nursing home were infected. (Id., ¶ 40, PageID #16–17.) Third, in Count III, Plaintiff
alleged that, on or about October 13, 2020, Defendants “recklessly, intentionally,
willfully, and wantonly conducted improper and false testing” of the decedent for
Covid-19. Further, Plaintiff alleges that Defendants “recklessly, intentionally,
willfully, and wantonly hid the fact that other patients and residents” of the nursing
home were infected, “thereby exposing” the decedent “and all other
residents/patients” of the nursing home. (Id., ¶ 50, PageID #18.)
Finally, in Count IV, Plaintiff alleges gross negligence because Defendants
“willfully and wantonly failed to perform their duties . . . with an intentional and
reckless disregard for the rights and safety of” the decedent, resulting in substantial
harm and death. (Id., ¶ 57, PageID #19.) “As a direct and proximate result of
Defendants’ gross negligence and reckless, intentional, willful, and wanton
disregard” for the decedent’s rights and interests, Defendants caused her death. (Id.,
¶ 58.)
I.C.2. The Other Complaints
The allegations and claims in Ross (ECF No. 1-1, No. 1:21-cv-02148;
ECF No. 1-1, No. 1:21-cv-02103) are nearly identical to those in Singer, except for the
name of the Plaintiff and certain other minor details specific to that Plaintiff. The
complaint in Kenney and Laudato (ECF No. 1-1, No. 1:21-cv-02106; ECF No. 1-1,
No. 1:21-cv-02120) asserts five causes of action, not four, but is otherwise
substantively similar to Singer. Finally, the Kulbarsh complaint (ECF No. 1-2,
No. 1:21-cv-02105; ECF No. 1-1, No. 1:21-CV-02125) does not materially differ from
Singer.
I.D. Application of the PREP Act
As noted, Section 247d-6d(a) provides that covered persons enjoy immunity
against suit and liability for all claims of loss “caused by, arising out of, relating to,
or resulting from the administration to or the use by an individual of a covered
countermeasure.” Therefore, the Court begins by considering whether Plaintiffs’
claims relate to covered countermeasures, a threshold determination for the Act’s
liability protections to apply.
I.D.1. Covered Countermeasures
An emergency declaration identifies the covered countermeasures that trigger
the broad immunity of the PREP Act. See 42 U.S.C. § 247d-6d(a)(1). As relevant
here, the Secretary identified the following covered countermeasures: any diagnostic
or other device used to diagnose, prevent, or mitigate Covid-19 or transmission of the
SARS-CoV-2 virus. 85 Fed. Reg. at 15,202. Under the Secretary’s emergency
declaration, covered countermeasures must be “qualified pandemic or epidemic
products,” “security countermeasures,” or devices authorized for investigational or
emergency use, as defined in the PREP Act, the Food, Drug, and Cosmetic Act, and
the Public Health Service Act. Id. at 15,202.
Plaintiffs’ complaints assert claims based, generally, on (1) employee mask
wearing; (2) falsifying or improperly performing Covid-19 test results; and (3) not
using a “Point of Care” testing machine that would allow Covid-19 results within
minutes, instead of days. Under the PREP Act, covered countermeasures must be:
(A) a qualified pandemic or epidemic product (as defined in paragraph
(7));
(B) a security countermeasure (as defined in section 319F-2(c)(1)(B) [42
USCS § 247d-6b(c)(1)(B)]);
(C) a drug (as such term is defined in section 201(g)(1) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)), biological product
(as such term is defined by section 351(i) of this Act [42 USCS § 262(i)]),
or device (as such term is defined by section 201(h) of the Federal Food,
Drug and Cosmetic Act (21 U.S.C. 321(h)) that is authorized for
emergency use in accordance with section 564, 564A, or 564B of the
Federal Food, Drug, and Cosmetic Act [21 USCS § 360bbb-3, 360bbb-3a,
or 360bbb-3b]; or
(D) a respiratory protective device that is approved by the National
Institute for Occupational Safety and Health under part 84 of title 42,
Code of Federal Regulations (or any successor regulations), and that the
Secretary determines to be a priority for use during a public health
emergency declared under section 319 [42 USCS § 247d].
42 U.S.C. § 247d-6d(i)(1). Based on the record before the Court, the countermeasures
on which Plaintiffs base their claims do not appear to meet any of these definitions—
or, at least, Defendants have not carried their burden of showing that they do.
I.D.1.a. Qualified Pandemic or Epidemic Product
The Act defines a “qualified pandemic or epidemic product” as a drug, a
biological product, or a device. Id. at § 247d-6d(i)(7). Of the countermeasures at
issue, the latter appears to apply. The PREP Act references the definition of a device
in the Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(h). Additionally, for a device to
be a covered countermeasure, the Act requires that the countermeasure meet two
more requirements. First, it must be a product used, designed, or procured to
diagnose, mitigate, or help prevent the spread of a pandemic. 42 U.S.C. § 247d-
6d(i)(7)(A). Second, it must also have certain specified regulatory approvals under
the Food, Drug, and Cosmetic Act. Id. § 247d-6d(i)(7)(B).
Defendants fail in their removal papers and briefing to carry their burden of
showing that the Covid-19 testing at issue in Plaintiffs’ complaints constitutes a
qualified pandemic or epidemic product. They make nothing more than a conclusory
argument that Plaintiffs’ claims relate to Covid-19 diagnostic testing, but fail to
establish that the testing at issue meets the particular definitions of the Secretary’s
emergency declaration or the Act itself. (ECF No. 15, PageID #134–35; ECF No. 17-1,
PageID #197.)
I.D.1.b. Security Countermeasure
A security countermeasure under the Act is a drug, biologic, or device that the
Secretary determines is a priority to diagnose, mitigate, prevent, or treat harm from
a condition that may result in adverse health consequences or death and may be
caused by using a drug, biologic, or device against a biological, chemical, radiological,
or nuclear agent. 42 U.S.C. § 247d-6b(c)(1)(B)(i). Under this definition, the diagnostic
tests, masks, and other countermeasures Plaintiffs reference in their complaints do
not constitute security countermeasures, and Defendants do not argue otherwise.
I.D.1.c. Emergency-Use Authorization
A drug, biologic, or device authorized for emergency use under the Food, Drug,
and Cosmetic Act constitutes a covered countermeasure. 42 U.S.C. § 247d-6d(i)(1)(C).
Although the masks and diagnostic testing about which Plaintiffs make allegations
might meet this definition, Defendants point to no information in the record
suggesting these measures do. Nor do they develop an argument that these products
meet the definition. (ECF No. 15, PageID #134–35; ECF No. 17-1, PageID #197.)
Therefore, the Court determines that Defendants have failed to carry their burden of
showing the countermeasures at issue qualify under this provision of the statute.
I.D.1.d. Respiratory Protective Device
Finally, the masks at issue in the complaints might conceivably be respiratory
protective devices within the meaning of 42 U.S.C. § 247d-6d(i)(1)(D), though that is
unlikely as a practical matter. But nothing in the record before the Court shows they
are, and Defendants make no argument to that effect. Therefore, Defendants have
not carried their burden of establishing that the masks or any device or product at
issue constitutes a covered countermeasure within the meaning of the statute.
* * *
At bottom, complete preemption for purposes of removal under the PREP Act
requires covered countermeasures. Although Plaintiffs base their allegations, in
part, on Defendants’ alleged failure to mask, falsification of Covid-19 test results, and
inadequate or improper testing, Defendants have not placed sufficient information in
the record from which the Court can determine that these countermeasures meet the
statutory definition or the Secretary’s emergency declaration. Nor have Defendants
made anything more than conclusory arguments that these measures meet those
definitions.
I.D.2. Estate of Maglioli
To support their removal effort, Defendants rely on Estate of Maglioli, 16 F.4th
393 (3d Cir. 2021). There, residents of two nursing homes brought wrongful death
claims alleging negligence and seeking punitive damages based on allegations that
the defendants failed to take precautions to prevent exposure to Covid-19. Although
the court concluded that the negligence-based wrongful death claims before it did not
satisfy the standard for removal based on complete preemption, it recognized that
“[t]he PREP Act’s language easily satisfies the standard for complete preemption of
particular causes of action.” Id. at 409. In this respect, the Court agrees with the
Third Circuit’s ruling in Estate of Maglioli. However, Defendants recognize that
Plaintiffs’ claims must relate to covered measures before the PREP Act’s complete
preemption will permit removal. (ECF No. 15, PageID #134–35; ECF No. 17-1,
PageID #197.) Because the record before the Court on removal fails to establish that
Plaintiffs’ claims relate to covered countermeasures, the Court need not determine
whether the balance of the Act’s statutory prerequisites apply.
II. Federal Officer Removal
One of the individual Defendants, the administrator of the nursing home at
issue, also removed these actions on the basis of the federal officer removal statute.
(ECF No. 1, ¶ 12, No. 21-cv-2120; ECF No. 1, ¶ 12, No. 21-cv-2148; ECF No. 1, ¶ 12,
No. 21-cv-2149.) Under 28 U.S.C. § 1442(a), certain officers of the United States may
remove actions to federal court. To do so, the defendant must meet three
requirements: (1) he must be a person within the meaning of the statute who acted
under the United States, its agencies, or its officers; (2) who is sued for or relating to
any act under color of his office; and (3) the defendant must raise a colorable federal
defense to the claims. 28 U.S.C. § 1442(a)(1); Bennett v. MIS Corp., 607 F.3d 1076,
1085 (6th Cir. 2010) (citations omitted). Private parties may invoke the federal officer
removal statute if they can show that they satisfy these requirements. Watson v.
Philip Morris Cos., 551 U.S. 142, 147 (2007).
The phrase “acting under” in Section 1442(a)(1) is broad and receives liberal
construction. Id. But complying with federal laws and regulations does not amount
to “acting under” a federal officer, even for a private party whose “activities are highly
supervised and monitored” under detailed regulations. Id. at 153. To avail
themselves of the statute, then, private parties must show that their actions “involve
an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Id.
at 152.
Here, Defendants cannot show that they acted under a federal officer within
the meaning of Section 1442(a)(1). At most, the nursing home and its administrator
complied with detailed regulations and orders during the Covid-19 pandemic—
though at a level less extensive than that at issue in Watson, where the Supreme
Court rejected the defendant’s argument that the statute applied. Defendants make
no showing that their efforts during the pandemic assisted or helped carry out the
duties of a federal officer. Instead, they maintain that nursing homes have a special
relationship with the federal government and during the pandemic function as public
health officers to provide services the federal government could not provide on its
own. Still, Defendants fail to show that they went beyond mere compliance with the
law. Nor do Defendants demonstrate that they are government contractors, the
federal government would otherwise have to fulfill the functions the nursing home
does, or their special relationship involves authority federal law delegates to them.
Therefore, the Court concludes that Section 1442(a)(1) does not apply.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ motions to remand
and REMANDS these cases to State court.
SO ORDERED.
Dated: December 27, 2021
J. Philip Calabrese
United States District Judge
Northern District of Ohio
17