Petition for Writ of Certiorari — Glenhaven Healthcare LLC, et al., Petitioners v. Jackie Saldana, et al.

Supreme Court briefAug 29, 2022

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACKIE SALDANA;

CELIA SALDANA;

RICARDO SALDANA, JR.; MARIA

SALDANA, as individuals and as

successors and heirs to Ricardo

Saldana, deceased,

Plaintiffs-Appellees,

No. 20-56194

D.C. No.

2:20-cv-05631FMO-MAA

OPINION

GLENHAVEN HEALTHCARE LLC, a

California corporation; CARAVAN

OPERATIONS CORP., a California

corporation; MATTHEW KARP, an

individual; BENJAMIN KARP, an

individual,

Defendants-Appellants.

Appeal from the United States District Court for the

Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted October 21, 2021

Pasadena, California

Filed February 22, 2022

Before: Ryan D. Nelson and Lawrence VanDyke,

Circuit Judges, and Karen E. Schreier, * District

Judge.

Opinion by Judge Schreier

SUMMARY **

Federal Subject Matter Jurisdiction

The panel affirmed the district court’s order

remanding a removed case to state court for lack of

federal subject matter jurisdiction.

Relatives of Ricardo Saldana, who allegedly died

from COVID-19 at Glenhaven Healthcare nursing

home, sued Glenhaven and other defendants in

California state court, alleging state-law causes of

action based on the allegation that Glenhaven failed

to adequately protect Saldana. Glenhaven removed

the case to federal court.

Affirming the district court’s order granting

plaintiffs’ motion to remand the case to state court,

the panel rejected Glenhaven’s argument that the

district court had three grounds for federal

* The Honorable Karen E. Schreier, United States District Judge

for the District of South Dakota, sitting by designation.

** This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

jurisdiction. First, the panel held that the district

court lacked jurisdiction under the federal officer

removal statute, 28 U.S.C. § 1442, because

Glenhaven did not act under a federal officer or

agency’s directions when it complied with mandatory

directives to nursing homes from the Centers for

Medicare and Medicaid Services, the Centers for

Disease Control and Prevention, and the Department

of Health and Human Services. Glenhaven’s status as

a critical infrastructure entity did not establish that

it acted as a federal officer or agency, or that it carried

out a government duty.

Second, the panel held that plaintiffs’ claims were

not completely preempted by the Public Readiness

and Emergency Preparedness Act, which provides

immunity from suit when the HHS Secretary

determines that a threat to health constitutes a public

health emergency, but provides an exception to this

immunity for an exclusive federal cause of action for

willful misconduct. In March 2020, the Secretary

issued a declaration under the PREP Act “to provide

liability immunity for activities related to medical

countermeasures against COVID-19.” The panel held

that the HHS Office of General Counsel’s Advisory

Opinion on complete preemption was not entitled to

Chevron deference because it was an opinion on

federal court jurisdiction. Instead, the panel applied

the two-part test set forth in City of Oakland v. BP

PLC, 969 F.3d 895 (9th Cir. 2020). The panel

concluded that in enacting the PREP Act, Congress

did not intend to displace the non-willful misconduct

claims brought by plaintiffs related to the public

health emergency, nor did it provide substitute causes

of action for plaintiffs’ claims. Thus, the federal

statutory scheme was not so comprehensive that it

entirely supplanted state law causes of action.

Third, the panel held that the district court did

not have jurisdiction under the embedded federal

question doctrine, under which federal jurisdiction

over a state law claim will lie if a federal issue is

necessarily raised, actually disputed, substantial, and

capable of resolution in federal court without

disrupting the federal-state balance approved by

Congress.

COUNSEL

Lann G. McIntyre (argued), Lewis Brisbois Bisgaard

& Smith LLP, San Diego, California; Kathleen M.

Walker, Lewis Brisbois Bisgaard & Smith LLP, Los

Angeles, California; for Defendants-Appellants.

Adam R. Pulver (argued), Allison M. Zieve, and Scott

L. Nielson, Public Citizen Litigation Group,

Washington, D.C.; Scott C. Glovsky, Law Offices of

Scott C. Glovsky, Claremont, California; for

Plaintiffs-Appellees.

Mark E. Reagan and Jeffrey Lin, Hooper Lundy &

Bookman P.C., San Francisco, California, for Amici

Curiae California Association of Health Facilities and

American Health Care Association.

Eric M. Carlson, Justice in Aging, Los Angeles,

California, for Amicus Curiae Justice in Aging.

OPINION

SCHREIER, District Judge:

Glenhaven Healthcare LLC, Caravan Operations

Corp., Matthew Karp, and Benjamin Karp

(collectively, Glenhaven) appeal the district court’s

order remanding this case to state court for lack of

federal subject matter jurisdiction. We have

jurisdiction under 28 U.S.C. § 1447(d), and affirm. 1

I. FACTUAL AND PROCEDURAL

BACKGROUND

Ricardo Saldana was a resident of Glenhaven

Healthcare nursing home from 2014 to 2020. Saldana

died at the Glenhaven nursing home on April 13,

2020, allegedly from COVID-19. In June 2020, four of

Saldana’s relatives, Jackie Saldana, Celia Saldana,

Ricardo Saldana, Jr., and Maria Saldana (the

Saldanas), sued Glenhaven in California Superior

Court for Los Angeles County. The Saldanas allege

that Glenhaven failed to adequately protect Ricardo

Saldana from the COVID-19 virus. The complaint

states four state-law causes of action: elder abuse,

willful misconduct, custodial negligence, and

wrongful death.

Glenhaven removed the case to the United States

District Court for the Central District of California in

June 2020, and the Saldanas moved to remand the

case to state court. The district court found that it did

We also GRANT the pending motions for judicial notice.

Docket 18; Docket 22.

not have subject matter jurisdiction to hear the case

and granted the Saldanas’ motion to remand.

Glenhaven appeals, arguing that the district court

has three independent grounds for federal

jurisdiction: federal officer removal, complete

preemption of state law, and the presence of an

imbedded federal question. We agree with the district

court and affirm.

II. STANDARD OF REVIEW

We review questions of statutory construction and

subject matter jurisdiction de novo. City of Oakland

v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020). When

the federal officer removal statute, 28 U.S.C. § 1442,

is one ground for removal, § 1447(d) permits appellate

review of a district court’s entire remand order. BP

P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1538 (2021).

“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).

III. DISCUSSION

A. Federal Officer Removal

1. Legal Standard

Under 28 U.S.C. § 1442(a)(1), the federal officer

removal statute, an action commenced in state court

may be removed to federal court when it is “against or

directed to …. [t]he United States or any agency

thereof or any officer (or any person acting under that

officer) of the United States or of any agency thereof,

in an official or individual capacity, for or relating to

any act under color of such office ….” The “basic

purpose” of the statute “is to protect the Federal

Government from the interference with its operations

that would ensue were a State able, for example, to

arrest and bring to trial in a State court for an alleged

offense against the law of the State, officers and

agents of the Government acting within the scope of

their authority.” Watson v. Philip Morris Cos., Inc.,

551 U.S. 142, 150 (2007) (cleaned up). The federal

officer removal statute is to be “liberally construed,”

but “a liberal construction nonetheless can find limits

in [the statute’s] language, context, history, and

purposes.” Id. at 147.

To remove a state court action under the federal

officer removal statute, a defendant must establish

that “(a) it is a person within the meaning of the

statute; (b) there is a causal nexus between its

actions, taken pursuant to a federal officer’s

directions, and plaintiff’s claims; and (c) it can assert

a colorable federal defense.” Stirling v. Minasian, 955

F.3d 795, 800 (9th Cir. 2020) (quoting Fidelitad, Inc.

v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018)).

Here, the parties do not dispute that each defendant

is a “person” under the statute. See 1 U.S.C. § 1

(“person”

includes

“corporations,

companies,

associations, firms, partnerships … as well as

individuals”). Defendants seeking removal “still bear

the burden of proving by a preponderance of the

evidence that the colorable federal defense and causal

nexus requirements for removal jurisdiction are

factually supported.” Lake v. Ohana Mil. Cmtys.,

LLC, 14 F.4th 993, 1000 (9th Cir. 2021) (cleaned up).

2. Whether Glenhaven Acted

Federal Officer’s Directions

Under

To determine whether there was a causal nexus

between Glenhaven’s actions and the Saldanas’

claims, the court first considers whether Glenhaven’s

actions were taken “pursuant to a federal officer’s

directions,” Stirling, 955 F.3d at 800, or while “acting

under that officer.” 28 U.S.C. § 1442(a)(1). A person or

entity who acts under a federal officer or agency is one

“‘who lawfully assist[s]’ a federal officer ‘in the

performance of his official duty’” and is “authorized to

act with or for [federal officers or agents] in

affirmatively executing duties under … federal law.”

Watson, 551 U.S. at 143 (cleaned up). The

relationship between a federal officer or agency and a

person or entity “acting under” the officer or agency

“typically involves subjection, guidance, or control.”

Id. at 152. But “simply complying” with a law or

regulation is not enough to “bring a private person

within the scope of the statute.” Id. In Watson the

Supreme Court stated:

private

firm’s

compliance

(or

noncompliance) with federal laws, rules, and

regulations does not by itself fall within the

scope of the statutory phrase “acting under” a

federal “official.” And that is so even if the

regulation is highly detailed and even if the

private firm’s activities are highly supervised

and monitored.

Id. at 153. “The upshot is that a highly regulated firm

cannot find a statutory basis for removal in the fact of

federal regulation alone.” Id.

Glenhaven argues that the federal government

“conscript[ed] … private entities like Glenhaven to

join in the fight [against COVID-19] through detailed

and specific mandatory directives to nursing homes

on the use and allocation of PPE, the administration

of COVID-19 testing, intervention protocols, and

virtually every other aspect of the operations of

nursing homes during the pandemic.” Though it

acknowledges that compliance with federal laws,

regulations, and rules does not “by itself” bring a

defendant under the federal officer removal statute,

Glenhaven claims that the “unprecedent[ed]

circumstances” of COVID-19 resulted in federal

directives and operational control amounting to more

than compliance with government regulations.

Glenhaven points to memoranda it received from

the Centers for Medicare and Medicaid Services

(CMS), the Centers for Disease Control and

Prevention (CDC), and the Department of Health and

Human Services (HHS) during the COVID-19

pandemic to show that the “federal government and

its agencies … became hyper-involved in the

operational activities of nursing facilities in response

to the pandemic.” But the agency communications

Glenhaven relies on show nothing more than

regulations and recommendations for nursing homes,

covering topics such as COVID-19 testing, use and

distribution of personal protective equipment, and

best practices to reduce transmission within

congregate living environments. For example, one

CMS memo identifies what healthcare staff “should”

do in response to the pandemic, and it states what

CMS “expects,” “encourages,” “advise[s],” and

“recommend[s].” Similarly, a CDC communication

10a

cited by Glenhaven identifies “recommendations” and

steps that healthcare centers “should” take. Another

memorandum

published

the

California

Department of Public Health states that the agency

“ensure[s] compliance with state licensing laws and

federal certification regulations” on behalf of CMS.

Licensing and Certification Program, Cal. Dep’t of

Pub.

Health

(Dec.

17,

2020),

https://www.cdph.ca.gov/Programs/CHCQ/LCP/Page

s/LandCProgramHome.aspx. Without more than

government regulations and recommendations,

Glenhaven has failed to establish that it was “acting

under” a federal official, and it has not identified a

duty of the federal government that it performed.

Glenhaven also claims that, as a nursing home,

its designation as part of the national critical

infrastructure necessarily means that it acted on

behalf of a federal official or that it carried out a

government duty. The Saldanas do not dispute that

nursing homes, including Glenhaven, are part of the

nation’s critical infrastructure. Glenhaven relies on a

memorandum

from

the

Cybersecurity

and

Infrastructure Security Agency (CISA) stating that

the list of critical infrastructure workers was

developed as “guidance” to “help state and local

jurisdictions and the private sector identify and

manage their essential workforce while responding to

COVID-19.” CISA Releases Guidance on Essential

Critical Infrastructure Workers During COVID-19,

Cybersecurity & Infrastructure Sec. Agency (Oct. 25,

2021),

https://www.cisa.gov/news/2020/03/19/cisareleases-guidance-essential-critical-infrastructure-w

orkers-during-covid-19. Notably, the memorandum

also states that the national critical infrastructure

11a

list “does not impose any mandates on state or local

jurisdictions or private companies,” such as

Glenhaven. Id.

“It cannot be that the federal government’s mere

designation of an industry as important—or even

critical—is sufficient to federalize an entity’s

operations and confer federal jurisdiction.” Buljic v.

Tyson Foods, Inc., 22 F.4th 730, 740 (8th Cir. 2021);

see also Maglioli v. All. HC Holdings LLC, 16 F.4th

393, 406 (3d Cir. 2021). Thus, Glenhaven’s status as

a critical infrastructure entity does not establish that

it acted under a federal officer or agency, or that it

carried out a government duty.

Glenhaven has failed to substantiate its claims

that it was conscripted to assist a federal officer or

agency in performance of a government duty or that

it was authorized to act for a federal officer. All that

Glenhaven has demonstrated is that it operated as a

private entity subject to government regulations, and

that during the COVID-19 pandemic it received

additional regulations and recommendations from

federal agencies. Thus, Glenhaven was not “acting

under” a federal officer or agency as contemplated by

the federal officer removal statute. And because

Glenhaven did not act under a federal officer, there is

no causal nexus that allows removal under 28 U.S.C.

§ 1442.

12a

B. Preemption Under the PREP Act

1. Legal Standard

Glenhaven argues that this case was properly

removed to federal court because the Saldanas’ claims

are completely preempted by the Public Readiness

and Emergency Preparedness (PREP) Act, 42 U.S.C.

§§ 247d-6d, 247d-6e. “Complete preemption is ‘really

a jurisdictional rather than a preemption doctrine, as

it confers exclusive federal jurisdiction in certain

instances where Congress intended the scope of a

federal law to be so broad as to entirely replace any

state-law claim.’” Dennis v. Hart, 724 F.3d 1249, 1254

(9th Cir. 2013) (emphasis added) (quoting Marin Gen.

Hosp. v. Modesto & Empire Traction Co., 581 F.3d

941, 945 (9th Cir. 2009)). Put another way,

“[c]omplete preemption … applies only where a

federal statutory scheme is so comprehensive that it

entirely supplants state law causes of action.” Retail

Prop. Tr. v. United Bhd. of Carpenters & Joiners of

Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting

Dennis, 724 F.3d at 1254). To determine whether a

claim is completely preempted, the court asks

whether Congress “(1) intended to displace a

state-law cause of action, and (2) provided a

substitute cause of action.” City of Oakland, 969 F.3d

at 906 (citing Hansen v. Grp. Health Coop., 902 F.3d

1051, 1057 (9th Cir. 2018)). Complete preemption is

“rare.” Hansen, 902 F.3d at 1057 (quoting Retail Prop.

Tr., 768 F.3d at 947). The Supreme Court has

identified only three complete preemption statutes:

§ 301 of the Labor Management Relations Act,

§ 502(a) of the Employee Retirement Income Security

13a

Act of 1974 (ERISA), and §§ 85 and 86 of the National

Bank Act. City of Oakland, 969 F.3d at 905-06.

Complete preemption is an exception to the

well-pleaded complaint rule. Id. at 905. Under the

well-pleaded complaint rule, a civil action arises

under federal law for purposes of federal question

jurisdiction when a federal question appears on the

face of the complaint. Id. at 903 (citing Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987)). Under the

rule, removal must be based on the plaintiff’s claims

and cannot be based on a defendant’s federal defense.

Id. at 903-04. But the exception for complete

preemption, the “artful-pleading doctrine[,] … allows

removal where federal law completely preempts a

plaintiff’s state-law claim.” Id. at 905 (quoting Rivet

v. Regions Bank of La., 522 U.S. 470, 475 (1998)).

2. The PREP Act

Passed by Congress in 2005, the PREP Act

provides that “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 ….” 42 U.S.C. § 247d-6d(a)(1). Both

“covered countermeasure” and “covered person” are

terms defined in the Act. See § 247d-6d(i)(1)-(2). The

PREP Act is invoked when “the [HHS] Secretary

makes a determination that a disease or other health

condition or other threat to health constitutes a public

health emergency, or that there is a credible risk that

the disease, condition, or threat may in the future

constitute such an emergency ….” § 247d-6d(b)(1).

14a

The Secretary “controls the scope of immunity

through the declaration and amendments, within the

confines of the PREP Act.” Maglioli, 16 F.4th at 401.

The Secretary’s declaration “may specify[] the

manufacture, testing, development, distribution,

administration, or use of one or more covered

countermeasures.” § 247d-6d(b)(1). The PREP Act

created the Covered Countermeasure Process Fund to

compensate “eligible individuals for covered injuries

directly caused by the administration or use of a

covered

countermeasure

pursuant

such

declaration ….” § 247d-6e(a).

Section 247d-6d(d)(1) provides that “the sole

exception to the immunity from suit and liability of

covered … shall be for an exclusive Federal cause of

action against a covered person for death or serious

physical injury proximately caused by willful

misconduct … by such covered person.” Such an

action “shall be filed and maintained only in the

United States District Court for the District of

Columbia.” § 247d-6d(e)(1). The term “willful

misconduct” is defined in the Act. § 247d-6d(c)(1)(A).

An individual may not bring a suit under

§ 247d-6d(d)(1) unless the individual has exhausted

the remedies available under § 247d-6e(a), the

Covered

Countermeasure

Process

Fund.

§ 247d-6e(d)(1).

In March 2020, the Secretary issued a declaration

under the PREP Act “to provide liability immunity for

activities related to medical countermeasures against

COVID-19.” Declaration Under the Public Readiness

and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19, 85 Fed. Reg.

15a

15,198, 15,198 (Mar. 17, 2020). The declaration

provided immunity for covered persons for the use of

covered measures, including “any antiviral, any other

drug, any biologic, any diagnostic, any other device,

or any vaccine, used to treat, diagnose, cure, prevent,

or mitigate COVID-19 ….” Id. at 15,202. The

Secretary

has

issued

subsequent

amended

declarations throughout the pandemic. See Seventh

Amendment to Declaration Under the Public

Readiness and Emergency Preparedness Act for

Medical Countermeasures Against COVID-19, 86

Fed. Reg. 14,462 (Mar. 16, 2021).

3. Whether the PREP Act is a Complete

Preemption Statute

Glenhaven’s complete preemption argument

relies on the HHS Secretary’s and the HHS Office of

General Counsel’s respective conclusions that the

PREP Act is a complete preemption statute. Fifth

Amendment to the Declaration Under the Public

Readiness and Emergency Preparedness Act for

Medical Countermeasures Against COVID-19, 86

Fed. Reg. 7874 (Feb. 2, 2021); Dep’t Health & Hum.

Servs., General Counsel Advisory Opinion 21-01 (Jan.

8, 2021). But “[c]omplete preemption is really a

jurisdictional rather than a preemption doctrine[.]”

Dennis, 724 F.3d at 1254 (internal quotation omitted).

And an agency’s opinion on federal court jurisdiction

is not entitled to Chevron deference. Dandino, Inc. v.

U.S. Dep’t of Transp., 729 F.3d 917, 920 n.1 (9th Cir.

2013). Thus, Glenhaven’s reliance on the Advisory

Opinion is misplaced and not a sufficient basis to

establish complete preemption and thus federal

jurisdiction.

16a

Instead of deferring to an opinion of the Office of

General Counsel, this court applies the two-part test

articulated in City of Oakland: (1) did Congress

intend to displace a state-law cause of action and (2)

did Congress provide a substitute cause of action? 969

F.3d at 906. Turning to the statute’s text, the PREP

Act states that it provides immunity under certain

conditions for “covered person[s]” who use “covered

countermeasure[s].” 42 U.S.C. § 247d-6d(a)(1).

Subsection (d) is the only subsection that explicitly

states that there shall be an “exclusive Federal cause

of action,” limited to claims against “covered persons”

for “willful misconduct,” as the terms are defined in

the Act. § 247d-6d(d). The provision of one specifically

defined exclusive federal cause of action undermines

Glenhaven’s argument that Congress intended the

Act to completely preempt all state-law claims related

to the pandemic. The text of the statute shows that

Congress intended a federal claim only for willful

misconduct claims and not claims for negligence and

recklessness. § 247d-6d(c)(1)(B). An administrative

compensation fund, not an exclusive federal cause of

action, provides the only redress for claims brought

under the Act, other than those alleging “willful

misconduct.” The PREP Act neither shows the intent

of Congress to displace the non-willful misconduct

claims brought by the Saldanas related to the public

health emergency, nor does it provide substitute

causes of action for their claims. Thus, under this

court’s two-part test, the PREP Act is not a complete

preemption statute.

Glenhaven argues that the PREP Act may

preempt one of the Saldanas’ claims—the second

cause of action under state law for willful misconduct.

17a

Whether the claim is preempted by the PREP Act

turns on whether any of the conduct alleged in the

complaint fits the statute’s definitions for such a

claim. But finding that one claim may be preempted

is different than finding that the “federal statutory

scheme is so comprehensive that it entirely supplants

state law causes of action,” such as the Saldanas’

other causes of action for elder abuse, custodial

negligence, and wrongful death. Retail Prop. Tr., 768

F.3d at 947 (emphasis added) (quoting Dennis, 724

F.3d at 1254); see also Caterpillar, 482 U.S. at 393

(distinguishing between complete preemption and

raising a federal defense); Toumajian v. Frailey, 135

F.3d 648, 654 (9th Cir. 1998) (distinguishing between

complete preemption and “conflict preemption” of a

particular claim). Thus, the district court’s remand

order for lack of federal subject matter jurisdiction

based upon complete preemption was proper.

C. Embedded Federal Question

Glenhaven argues that the district court has

jurisdiction under the embedded federal question

doctrine. Under this doctrine, “federal jurisdiction

over a state law claim will lie if a federal issue is

(1) necessarily raised, (2) actually disputed,

(3) substantial, and (4) capable of resolution in federal

court without disrupting the federal-state balance

approved by Congress.” Gunn v. Minton, 568 U.S. 251,

258 (2013). The well-pleaded complaint rule applies

when determining whether the embedded federal

question doctrine applies. Cal. Shock Trauma Air

Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 542

(9th Cir. 2011).

18a

Here, the Saldanas’ complaint states four causes

of action: elder abuse, willful misconduct, custodial

negligence, and wrongful death. The claims in the

complaint are raised under California law and do not

raise questions of federal law on the face of the

complaint. Glenhaven seeks to raise a federal defense

under the PREP Act, but a federal defense is not a

sufficient basis to find embedded federal question

jurisdiction. Provincial Gov’t of Marinduque v. Placer

Dome, Inc., 582 F.3d 1083, 1090 (9th Cir. 2009).

Glenhaven argues that the Saldanas’ willful

misconduct claim raises a federal issue under the

PREP Act. Glenhaven does not identify how a right or

immunity created by the PREP Act must be an

essential element of the willful misconduct claim as

stated in the complaint. On its face, the issue is not a

“substantial” part of the Saldanas’ complaint because,

according to the complaint, only some of the steps

Glenhaven allegedly took, and did not take, may have

involved a “covered person,” under the PREP Act.

Thus, remand is proper because the complaint does

not present an embedded federal question.

IV. CONCLUSION

Glenhaven did not act under a federal officer or

carry out a federal duty when it provided care to

Ricardo Saldana. The PREP Act does not completely

preempt the Saldanas’ claims, and the possible

preemption of one claim cannot be determined by this

court or the district court. And there is no embedded

federal question in the Saldanas’ complaint. Thus, the

district court lacked subject matter jurisdiction, and

the suit was properly remanded to state court.

19a

AFFIRMED.

20a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 20-5631 FMO (MAAx)

Date

October 14, 2020

Title Jackie Saldana, et al. v. Glenhaven

Healthcare LLC, et al.

Present: The Honorable Fernando M. Olguin, United

States District Judge

Vanessa Figueroa

None

Deputy Clerk Court Reporter / Recorder Tape No.

Attorney Present

for Plaintiff(s):

Attorney Present

for Defendant(s):

None Present

Proceedings: (In Chambers) Order Re: Motion

to Remand

Having reviewed and considered all the briefing

filed with respect to plaintiffs’ Motion to Remand

(Dkt. 11, “Motion”), the court concludes that oral

argument is not necessary to resolve the Motion, see

Fed. R. Civ. P. 78(b); Local Rule 7-15; Willis v. Pac.

Mar. Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and

orders as follows.

21a

BACKGROUND

On June 10, 2020, plaintiffs Jackie Saldana, Celia

Saldana, Ricardo Saldana, Jr., and Maria Saldana,

individually and as successors and heirs of Ricardo

Saldana (“Saldana”), deceased (“plaintiffs”) filed a

First Amended Complaint (“FAC”) in the Los Angeles

County Superior Court (“state court”) against

defendants

Glenhaven

Healthcare

LLC

(“Glenhaven”), Caravan Operations Corp., Matthew

Karp, and Benjamin Karp (collectively, “defendants”).

(See Dkt. 3, Notice of Removal (“NOR”) at ¶ 1);

(Dkt. 3-7, FAC). Plaintiffs allege that defendants

improperly and inadequately protected Saldana from

the COVID-19 virus during the coronavirus

pandemic. (See Dkt. 3-7, FAC at ¶¶ 20-35). Saldana

was an elderly resident of Glenhaven’s nursing home

in Glendale, California. (See id. at ¶ 20). Plaintiffs

allege that although California and Los Angeles

declared a state of emergency in early March 2020,

Glenhaven not only failed to implement appropriate

safety measures, but “stopp[ed] its staff from

protecting themselves and the residents” from the

coronavirus. (Id. at ¶ 25). For instance, supervisors at

Glenhaven told staff that they could not wear their

own masks, even when employees indicated that they

had been sick. (See id. at ¶ 26). And when the local

fire department provided boxes of masks to the

facility, a Glenhaven supervisor locked them away

rather than distributing them to employees. (See id.

at ¶ 27). Glenhaven supervisors also did not disclose

that one of its nurses had previously worked at a

facility that was shut down because of uncontrolled

COVID-19 infections and that the nurse had been

exposed to the virus. (See id. at ¶ 28). Instead,

22a

supervisors downplayed the virus and “compared [it]

to the flu.” (Id. at ¶ 29). Finally, in late March 2020,

Glenhaven placed a resident who had shared a room

with a COVID-19 positive resident in Saldana’s room.

(See id. at ¶ 34). Saldana subsequently began to

develop a fever and other symptoms of the virus, and

ultimately died on April 13, 2020, from the

coronavirus. (See id. at ¶ 35). Plaintiffs’ FAC asserts

four state law claims: (1) elder abuse; (2) willful

misconduct; (3) custodial negligence; and (4) wrongful

death. (See id. at ¶¶ 36-61).

On June 24, 2020, defendants removed the action

on the basis of federal question jurisdiction pursuant

to 28 U.S.C. § 1331 and the federal officer removal

statute, 28 U.S.C. § 1442(a)(1). (See Dkt. 3, NOR at

¶ 6). Having reviewed and considered all the briefing

filed with respect to plaintiffs’ Motion (Dkt. 11), the

court concludes that this action must be remanded to

the state court for lack of subject matter jurisdiction.

See 28 U.S.C. § 1447(c).

LEGAL STANDARD

Removal of a civil action from the state court

where it was filed is proper if the action might have

originally been brought in federal court. See 28 U.S.C.

§ 1441(a) (“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[.]”).

“The burden of establishing federal jurisdiction is

upon the party seeking removal[.]” Emrich v. Touche

Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988); see

23a

Abrego Abrego v. The Dow Chemical Co., 443 F.3d

676, 684 (9th Cir. 2006) (per curiam) (noting the

“longstanding, near-canonical rule that the burden on

removal rests with the removing defendant”). As

such, any doubts are resolved in favor of remand. See

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)

(“We strictly construe the removal statute against

removal jurisdiction.”). Indeed, “[i]f 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). In general, under the

“well-pleaded complaint” rule, courts look to the

complaint to determine whether an action falls within

the bounds of federal question jurisdiction. See Marin

Gen. Hosp. v. Modesto & Empire Traction Co., 581

F.3d 941, 944 (9th Cir. 2009).

DISCUSSION

SUBJECT MATTER JURISDICTION.

Defendants contend that federal question

jurisdiction exists in this action because plaintiffs’

claims arise under a federal statute, namely The

Public Readiness and Emergency Preparedness Act,

(“PREP Act”), 42 U.S.C. §§ 247d-6d, 247-6e. (See

Dkt. 3, NOR at ¶¶ 6, 9-11). Defendants argue that the

PREP Act completely preempts plaintiffs’ state-law

claims, and even if it did not, federal question

jurisdiction exists because the claims raise a federal

issue.1 (Id. at ¶ 18). With respect to complete

1 The court notes that the allegations in the FAC do not support

a claim that Saldana’s death resulted from defendants’

administration to or use by Saldana of a covered

countermeasure. (See, generally, Dkt. 3-7, FAC); (see also

24a

preemption, the PREP Act is “not one of the three

statutes that the Supreme Court has determined has

extraordinary preemptive force.” See City of Oakland

v. BP PLC, 969 F.3d 895, 907 (9th Cir. 2020); Martin

v. Serrano Post Acute LLC, 2020 WL 5422949, *1-2

(C.D. Cal. 2020) (finding that PREP Act did not

preempt plaintiffs’ state law claims relating to

defendants’ alleged “fail[ure] to take proper

precautions to prevent the spread of COVID-19 in the

[nursing] facility, and fail[ure] to react properly to the

infections that became present in the facility[,]” which

led to decedent’s death from COVID-19). Moreover,

defendants “make a lengthy argument in favor of

their immunity under the PREP Act, but mere

immunity against state law or preemption of state

law is not the equivalent of complete preemption and

does nor provide removal jurisdiction.”2 Martin, 2020

WL 5422949, at *2; see also Caterpillar Inc. v.

Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430

(1987) (“[I]t is now settled law that a case may not be

removed to federal court on the basis of a federal

Dkt. 20, Plaintiffs’ Reply to Defendants’ Opposition to Motion to

Remand at 5).

2 As the court in Martin succinctly put it: “It is largely irrelevant

that federal courts have exclusive jurisdiction under the PREP

Act because none of the claims in the complaint, on its face, are

brought under that Act. If Defendants believe that some or all of

Plaintiffs’ state law claims are barred by the PREP Act, the

appropriate response is to file a demurrer in state court. If the

state court dismisses the state law claims, Plaintiffs could then

decide if they wish to file claims under the PREP Act in the

District of the District of Columbia, the court with exclusive

jurisdiction over such claims.” Martin, 2020 WL 5422949, at *2

(citing 42 U.S.C. § 247d-6d(e)(1)).

25a

defense, including the defense of pre-emption, even if

the defense is anticipated in the plaintiff’s

complaint[.]”) (emphasis in original). Accordingly, the

court finds that the PREP Act does not confer federal

question jurisdiction.3

Defendants also contend that removal is

warranted under the federal officer removal statute,

28 U.S.C. § 1442(a)(1). 4 (See Dkt. 3, NOR at

¶¶ 20-43); (Dkt. 18, Opp. at 16-23). Although the

federal officer removal statute must be “liberally

construed[,]” Watson v. Philip Morris Cos., Inc., 551

U.S. 142, 147, 127 S.Ct. 2301, 2305 (2007) (internal

quotation marks omitted), the court finds that it does

not confer jurisdiction in this instance. Defendants

argue that “in taking steps to prevent the spread of

COVID-19, [they] did so in compliance with CDC and

CMS directives, which were aimed at helping achieve

Nor does federal question jurisdiction exist based on

defendants’ contention that plaintiffs’ state-law claims present a

substantial, embedded question of federal law. (See Dkt. 18,

Defendants[’] Opposition to Motion to Remand (“Opp.”) at 4-9;

Dkt. 3, NOR at ¶¶ 18-19); see Martin, 2020 WL 5422949, at *3

(“Defendants [ ] make no attempt to show that this particular

case raises substantial questions important to the federal

system as a whole, and it is clear that it does not.”) (internal

quotation marks omitted).

Under the federal officer removal statute, a case may be

removed by “[t]he United States or any agency thereof or any

officer (or any person acting under that officer) of the United

States or of any agency thereof, in an official or individual

capacity, for or relating to any act under color of such office or on

account of any right, title or authority claimed under any Act of

Congress for the apprehension or punishment of criminals or the

collection of the revenue.” 28 U.S.C. § 1442(a)(1).

26a

the federal government’s efforts at stopping or

limiting the spread of COVID-19.” (Dkt. 18, Opp. at

17). However, “[t]he directions Defendants point to

are general regulations and public directives

regarding the provision of medical services[,]” which

are insufficient. Martin, 2020 WL 5422949, at *1; see

Watson, 551 U.S. at 153, 147 U.S. at 2308 (“A private

firm’s compliance (or noncompliance) with federal

laws, rules, and regulations does not by itself fall

within the scope of the statutory phrase ‘acting under’

a federal ‘official.’ And that is so even if the regulation

is highly detailed and even if the private firm’s

activities are highly supervised and monitored.”).

II. FEES AND COSTS.

Plaintiffs seek attorney’s fees and costs for

defendants’ “frivolous” removal. (See Dkt. 11, Motion

at 29-30); 28 U.S.C. § 1447(c). Plaintiffs’ request is

denied as the court finds that defendants did not lack

an “objectively reasonable basis for seeking removal.”

Martin v. Franklin Capital Corp., 546 U.S. 132, 141,

126 S.Ct. 704, 711 (2005) (“Absent unusual

circumstances, courts may award attorney’s fees

under § 1447(c) only where the removing party lacked

an objectively reasonable basis for seeking removal.

Conversely, when an objectively reasonable basis

exists, fees should be denied.”)

This order is not intended for publication.

Nor is it intended to be included in or submitted

to any online service such as Westlaw or Lexis.

27a

CONCLUSION

Based on the foregoing, IT IS ORDERED that:

1. Plaintiffs’ Motion to Remand (Document No.

11) is granted in part and denied in part.

2. The above-captioned action shall be

remanded to the Superior Court of the State of

California for the County of Los Angeles, 111 N. Hill

St., Los Angeles, CA 90012, for lack of subject matter

jurisdiction pursuant to 28 U.S.C. § 1447(c).

Plaintiffs’ request for attorney’s fees is denied.

3. The Clerk shall send a certified copy of this

Order to the state court.

4. Except as set forth in this Order, all pending

motions are denied as moot.

Initials of Preparer

vdr

28a

APPENDIX C

FILED

APR 18 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACKIE SALDANA; CELIA

SALDANA; RICARDO

SALDANA, Jr.; MARIA

SALDANA, as individuals

and as successors and heirs

to Ricardo Saldana, deceased,

Plaintiffs-Appellees,

No. 20-56194

D.C. No.

2:20-cv-05631-FMOMAA

Central District of

California,

Los Angeles

ORDER

GLENHAVEN HEALTHCARE

LLC, a California corporation;

CARAVAN OPERATIONS

CORP., a California corporation;

MATTHEW KARP, an

individual; BENJAMIN

KARP, an individual,

Defendants-Appellants.

29a

Before: R. NELSON and VANDYKE, Circuit Judges,

and SCHREIER,1 District Judge.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has

requested a vote. Fed. R. App. P. 35. The panel

unanimously votes to deny the petition for panel

rehearing and for rehearing en banc. Rehearing is

DENIED.

The Honorable Karen E. Schreier, United States District

Judge for the District of South Dakota, sitting by designation.

30a

APPENDIX D

Scott C. Glovsky, Bar No. 170477

Email: Sglovsky@scottglovskylaw.com

Ari Dybnis, Bar No. 272767

Email: Adybnis@scottglovskylaw.com

LAW OFFICES OF SCOTT GLOVSKY, APC

343 Harvard Avenue

Claremont, CA 91711

Website: www.scottglovsky.com

Telephone: (626) 243-5598

Facsimile: (866) 243-2243

Attorneys for Plaintiffs

SUPERIOR COURT FOR THE STATE OF

CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JACKIE SALDANA,

CELIA SALDANA,

RICARDO SALDANA

JR., and MARIA

SALDANA, as

individuals and as

successors and heirs of

RICARDO SALDANA,

deceased,

Plaintiffs,

vs.

GLENHAVEN

HEALTHCARE LLC, a

Case No.: 20STCV19417

COMPLAINT AND

DEMAND FOR JURY

TRIAL

1. Elder Abuse;

2. Willful Misconduct;

3. Negligence; and

4. Wrongful Death.

31a

California corporation;

CARAVAN OPERATIONS

CORP., a California corporation;

MATTHEW KARP, an individual;

BENJAMIN KARP, an individual,

and DOES 1 through 100, inclusive,

Defendants.

Plaintiffs allege with respect to their own acts and

on information and belief with respect to all other

matters:

GENERAL ALLEGATIONS

INTRODUCTION

1. This is a case about profits over people. The

Saldana family trusted the Glenhaven Healthcare

nursing home to care for and protect Ricardo Saldana.

Glenhaven grossly betrayed their trust. During the

midst of the deadly coronavirus pandemic, Glenhaven

intentionally concealed that a working staff member

had been heavily exposed to the coronavirus while

prohibiting its staff members from wearing masks

and gloves. As a result, roughly ten patients,

including Ricardo Saldana, were infected with the

coronavirus and died.

2. Ricardo Saldana’s wife and children bring

this action against Glenhaven for Ricardo’s wrongful

death. Glenhaven took intentional and cruel actions

in its response, and lack thereof, to the coronavirus

until it was too late. It failed to provide any protective

32a

equipment such as masks to employees, prohibited

employees from bringing or wearing their own

protective equipment, and went so far as to lock up

protective equipment that the local fire department

delivered. Glenhaven took no precautions to identify

or isolate employees or residents infected with or

exposed to the virus. To the contrary, it concealed its

knowledge that an employee had been exposed to the

virus for roughly two weeks and had the employee

interact with other employees and residents.

Similarly, it moved a resident who was exposed to the

virus into Ricardo’s room without telling Ricardo or

his family.

3. Glenhaven sought to avoid scrutiny from

local regulators, to save money, and to minimize the

knowledge of existence of the virus to the residents

and employees until it was too late. As a result, the

virus ran rampant through Glenhaven’s facility,

infecting residents and employees.

THE PARTIES

4. Decedent Ricardo Saldana (“Ricardo”)

resided, at all times herein mentioned, in Los Angeles

County. While alive, Ricardo lived for the last

approximately six years of his life in the Glenhaven

Healthcare nursing home in Glendale, California. He

died from the coronavirus on or about April 13, 2020.

5. Plaintiff Celia Saldana (“Celia”) resides, now

and at all times herein mentioned, in Los Angeles

County. Ricardo is Celia’s late husband.

33a

6. Plaintiff Jackie Saldana (“Jackie”) resides,

now and at all times herein mentioned, in Los Angeles

County. Ricardo was Jackie’s father.

7. Plaintiff Ricardo Saldana Jr. (“Ricardo Jr.”)

resides, now and at all times herein mentioned, in Los

Angeles County. Ricardo was Ricardo Jr.’s father.

8. Plaintiff Maria Saldana (“Maria”) resides,

now and at all times herein mentioned, in Los Angeles

County. Ricardo was Maria’s father.

9. Ricardo has no other living immediate

relatives other than Celia, Jackie, Ricardo Jr. and

Maria (collectively the “Plaintiffs”). Plaintiffs are the

successors in interest to the Decedent Ricardo

Saldana and with this complaint is an executed

affidavit in compliance with CCP § 377.32, and

thereby proceeds as successor in interest to the claims

of Decedent Ricardo Saldana as stated herein, and

brings this action as individuals as such. See

Declaration of Jackie Saldana attached as Exhibit 1.

Plaintiffs brings this combined survival action on

behalf of Ricardo’s estate and also this wrongful death

action under the provisions of Code of Civil Procedure

§ 377.60 which provides that Plaintiffs, as the

personal representative of the Decedent, may bring

this wrongful death action on behalf of the decedent’s

heirs: “A cause of action for the death of a person

caused by the wrongful act or neglect of another may

be asserted by … by the decedent’s personal

representative on their behalf.”

10. Defendant Glenhaven Healthcare, LLC

(“Glenhaven”) is, and at all relevant times was, a

34a

corporation duly organized and existing under and by

virtue of the laws of the State of California and

authorized to transact and transacting business in

the State of California, with its headquarters in the

County of Los Angeles.

11. Defendant Caravan Operations Corp.

(“Caravan”) is, and at all relevant times was, a

corporation duly organized and existing under and by

virtue of the laws of the State of California and

authorized to transact and transacting business in

the State of California, with its headquarters in the

County of Los Angeles.

12. Defendant Matthew Karp is, and at all

relevant times was, a resident of the County of Los

Angeles.

13. Defendant Benjamin Karp is, and at all

relevant times was, a resident of the County of Los

Angeles.

14. Upon information and belief, Matthew Karp

and Benjamin Karp are the sole owners of Caravan

and Glenhaven. There exists, and at all times

mentioned existed, a unity of interest and ownership

between Defendants Matthew Karp, Benjamin Karp,

Caravan and Glenhaven such that any individuality

and separateness between them has ceased, and

defendant Caravan and Glenhaven are the alter ego

of each other defendant that Caravan and Glenhaven

are, and at all times herein mentioned were, a mere

shell, instrumentality, and conduit through which

defendants Matthew Karp and Benjamin Karp

carried on their nursing home business. These

35a

Defendants intermingle monies and do not respect

the corporate formalities necessary to operate as

separate entities. As a result, these defendants are

collectively referred to herein as “Glenhaven.”

15. Adherence to the fiction of the separate

existence of defendants as entities distinct from each

other would permit an abuse of the corporate privilege

and would promote injustice by protecting

Defendants Caravan, Matthew Karp, and Benjamin

Karp from prosecution for the wrongful acts

committed by them under the name Glenhaven.

16. Additionally, Plaintiffs are informed and

believe that Defendants were in a joint venture to

provide nursing home services that are the subject of

this lawsuit. They combined their property, skill, and

knowledge with the intent to carry out a single

business undertaking. Each of the Defendants has an

ownership interest in the business and joint control

over the business and share the profits and losses of

the business.

17. The true names and capacities, whether

individual, corporate, associate or otherwise, of

Defendants named herein as Does 1 through 100,

inclusive, are unknown to plaintiff, who therefore

sues said Defendants by such fictitious names. Each

of the Defendants named herein as a Doe is

responsible in some manner for the events and

happenings hereinafter referred to, and some of

plaintiff’s damages as herein alleged were

proximately caused by such defendants. Plaintiffs will

seek leave to amend this complaint to show said

36a

Defendants’ true names and capacities when the

same have been ascertained.

18. The true names and capacities, whether

individual, corporate, associate or otherwise, of

Defendants named herein as Does 1 through 100,

inclusive, are unknown to plaintiffs, who therefore

sue said defendants by such fictitious names. Each of

the Defendants named herein as a Doe is responsible

in some manner for the events and happenings

hereinafter referred to, and some of plaintiffs’

damages as herein alleged were proximately caused

by such defendants. Plaintiffs will seek leave to

amend this complaint to show said Defendants’ true

names and capacities when the same have been

ascertained.

19. At all times mentioned herein, each of the

Defendants was the agent or employee of each of the

other Defendants, or an independent contractor, or

joint venturer, and in doing the things herein alleged,

each such Defendant was acting within the purpose

and scope of said agency and/or employment and with

the permission and consent of each other Defendant.

FACTUAL BACKGROUND

20. Ricardo Saldana was an elderly resident of

Glenhaven’s nursing home in Glendale, California. In

May of 2014, he suffered from a stroke and was

admitted to Verdugo Hills Hospital. After a couple of

weeks in the hospital he stabilized and Verdugo Hills

discharged him to Elms Convalescent Hospital, a

37a

skilled nursing facility. In or about 2017 or 2018,

Elms Convalescent Hospital was acquired by

Glenhaven.

21. At all times relevant, Ricardo had

impairments that required total care. He was in the

custody of Glenhaven and wholly dependent upon

Glenhaven for all activities of daily life, including food

and feeding, clothing, laundry, hydration, hygiene,

mobility, medication, and treatments. He was also

totally dependent upon Glenhaven for nursing care to

assess changes in his condition, to report changes in

his condition to the attending physician, and when

appropriate to arrange for him to be transferred to a

hospital.

22. At all times mentioned, Glenhaven accepted

the responsibility to provide such caretaking and

custodial services and had custody of Ricardo. Each of

these services are services which a nursing facility

operator is required by law to provide. (Health &

Safety C. § 1418.6; 22 CCR. §§ 72301, 72303,

72527(a)(3),

72527(a)(12).)

Despite

Ricardo’s

impairments and need for assistance, up until March

of 2020 he was stable and still able to interact with

his wife Celia and children, Jackie, Maria and Ricardo

Jr.

23. On January 20, 2020, the first case of

coronavirus infection in the United States appeared.

By March 4, 2020, the virus spread to such an extent

and posed such a danger that California’s Governor,

Gavin Newsom, declared a state of emergency in

California. On the same day, the Los Angeles County

Board of Supervisors and the Los Angeles County

38a

Department of Public Health similarly declared a

local and public health emergency in the County of

Los Angeles.

24. The elderly and particularly those with

underlying health problems are most vulnerable to

the coronavirus. In late February, a coronavirus

outbreak at a nursing home in Washington infected

two-thirds of its residents and killed 37 people. The

media widely covered this story. It became quickly

apparent that nursing homes needed to promptly take

reasonable measures to protect their patients from

exposure to the coronavirus. Such measures include

testing of residents and employees, restricting

visitors, requiring employees to use face masks,

gloves, and gowns, and isolating employees and

residents who are suspected or known carriers of the

virus.

25. At the same time that California and Los

Angeles County were declaring a state of emergency,

Glenhaven failed to implement appropriate safety

measures. To the contrary, Glenhaven’s leadership

was stopping its staff from protecting themselves and

the residents. Glenhaven was primarily operated by

two people. Carrie Marks (“Marks”) is the head

administrator of the facility and Marco Gary (“Gary”)

heads the department of staff development and is

himself a nurse. Both of these individuals have the

ability to hire and fire staff and Marks is an employee

of both Glenhaven and Caravan.

26. Through March of 2020, Glenhaven did not

provide employees with any personal protective

equipment (“PPE”). On a number of occasions,

39a

members of the nursing staff brought their own

masks and bandanas to wear while working because

of their concerns for the virus. Gary told such staff

members to take off their masks and bandanas and

that they were not allowed. When Gary told one nurse

that she was not allowed to wear a mask, she told him

that she was sick and needed to wear a mask to

protect the patients and employees. Despite her

pleading, and her illness, Gary responded that she

was not allowed to wear a mask.

27. Employees questioned Gary and Marks about

this policy. They responded that the protective items

were not necessary because no one would get sick. In

mid-March of 2020, the local fire department even

delivered boxes of masks to the facility. Instead of

distributing the masks to staff, Marks locked the

masks in a cabinet and would not allow employees to

use them.

28. Around the same time, Susana San Andreas,

a nurse working at Glenhaven, advised Marks that

she had also been working at a facility in Burbank

which was being shut down because of uncontrolled

COVID-19 infections and that residents there

exposed her to the virus. Glenhaven did not tell any

of the staff about San Andreas’ exposure and

continued to allow San Andreas to work at

Glenhaven.

29. Roughly a week later, Marks held a staff

meeting at Glenhaven. Marks downplayed the virus

and reassured the staff that no one was getting sick.

She compared the coronavirus to the flu. She did not

mention San Andreas’ exposure.

40a

30. Around this time, a staff member at

Glenhaven called Jackie and told her about her

concerns for Ricardo because Glenhaven was not

allowing staff to wear masks. She begged Jackie to

contact the government regulators. Jackie called the

Department of Public Health and reported the

situation.

31. Approximately a week later, on or about

April 1, 2020, Marks held a second in-service at

Glenhaven where she told staff that a nurse had been

exposed to the virus. She also said that she and the

rest of the supervisors would no longer hide anything.

She advised staff that Glenhaven would start

allowing masks to be worn, but only masks provided

by Glenhaven. Following the meeting, Glenhaven

provided paper surgical masks to the staff but only

permitted each staff member to use one mask per

eight-hour shift.

32. Even through April of 2020 as Glenhaven

began to provide first paper masks and then other

items such as disposable gowns, supply continued to

be a problem. Glenhaven frequently ran out of masks

and gowns forcing staff to finish out hours of their

shifts without clean equipment rather than

purchasing additional equipment for the facility.

33. Even though Glenhaven had begun to

implement some safety measures in early April, the

virus had already spread through the staff and

residents. It was not until on or about April 7th

through on or about April 9th that the facility began

to test staff and patients. Before that, Glenhaven

knew that it had staff and residents who were both

41a

exposed to the virus and who also carried the virus

yet it was not testing people. Glenhaven was not

doing so specifically for fear that there would be

positive results which it would then need to report.

The testing that was conducted did in fact identify

people with the virus.

34. Despite its awareness of the virus in the

facility and minor steps that it took to address the

spread, the leadership at Glenhaven still did not

implement an effective policy for isolating proven or

suspected carriers of the coronavirus. As a result,

Glenhaven transferred a resident who had shared a

room with a COVID-19 positive resident to a two bed

room with Ricardo in late March.

35. Prior to this move, Ricardo did not show any

signs or symptoms. Once the other person was moved

into the room with Ricardo, he began to develop a

fever and other symptoms of the coronavirus.

Ricardo’s condition continued to degrade and the staff

attempted to treat the condition with medication

which was known at the time to be contra-indicated

for coronavirus. Ultimately, Ricardo died on April 13,

2020 from the coronavirus.

FIRST CAUSE OF ACTION

(ELDER ABUSE)

PLAINTIFFS FOR A FIRST CAUSE OF ACTION

AGAINST ALL DEFENDANTS AND DOES 1

42a

THROUGH 100, INCLUSIVE, AND EACH OF

THEM, FOR ELDER ABUSE, ALLEGE:

36. Plaintiffs incorporate by reference each and

every paragraph of the General Allegations as though

set forth in full in this cause of action.

37. Ricardo was at all times elderly within the

meaning of Welf. & Inst. C. § 15610.27 owing to the

fact that he resided in the State of California, and was

over the age of 65.

38. At all times mentioned, each of

defendants had care or custody of the Ricardo.

the

39. By virtue of the foregoing, Defendants and

each of them have failed to protect Ricardo from

health and safety hazards and committed neglect as

defined at Welf. & Inst. Code § 15610.57.

40. During the aforesaid periods during which

Defendants and each of them had care or custody of

the Deceased, he was intentionally and/or recklessly

exposed to the coronavirus and not provided with

basic necessary custodial care such as feeding or

bathing by Glenhaven employees in appropriate

protective equipment.

41. By virtue of the foregoing, at all times during

their care and treatment of the Deceased, Defendants

have acted with recklessness.

42. By virtue of the foregoing, in addition to

pre-death pain and suffering damages under Welf. &

Inst. Code § 15657, Plaintiffs are entitled to

43a

attorneys’ fees unilaterally to them, under the same

provision of law.

43. Defendants’ conduct described herein was

intended by the defendants to cause injury to

plaintiffs or was despicable conduct carried on by the

Defendants with a willful and conscious disregard of

the rights of Plaintiffs, or subjected Plaintiffs to cruel

and unjust hardship in conscious disregard of

Plaintiffs’

rights,

was

intentional

misrepresentation, deceit, or concealment of a

material fact known to the defendants with the

intention to deprive Plaintiffs of property, legal rights

or to otherwise cause injury, such as to constitute

malice, oppression or fraud under California Civil

Code section 3294, thereby entitling Plaintiffs to

punitive damages in an amount appropriate to punish

or set an example of Defendants.

44. Defendants’ conduct described herein was

undertaken by the corporate Defendants’ officers or

managing agents, identified herein as DOES 1

through 100, inclusive, who were responsible for

claims supervision and operations, underwriting,

communications

and/or

decisions.

The

aforementioned conduct of said managing agents and

individuals was therefore undertaken on behalf of the

corporate Defendants. Said corporate Defendants

further had advance knowledge of the actions and

conduct of said individuals whose action and conduct

were ratified, authorized, and approved by managing

agents whose precise identities are unknown to

Plaintiffs at this time and are therefore identified and

designated herein as DOES 1 through 100.

44a

SECOND CAUSE OF ACTION

(Willful Misconduct)

PLAINTIFFS FOR A SECOND CAUSE OF

ACTION AGAINST ALL DEFENDANTS AND

DOES 1 THROUGH 100, INCLUSIVE, AND

EACH

THEM,

FOR

WILFUL

MISCONDUCT, ALLEGE:

45. Plaintiffs incorporate by reference each and

every paragraph of the General Allegations as though

set forth in full in this cause of action.

46. At all times during the periods of their care of

Ricardo, each defendant knew or should have known

that their failure to comply with the standard of care,

by providing care in which healthcare providers

lacked appropriate safety equipment, and by not

employing reasonable custodial policies for isolating

COVID positive residents, all posed a peril to the

Deceased.

47. At all times mentioned during the periods of

their care of the Deceased, each defendant knew or

should have known that the peril posed by their

failure to their failure to comply with the standard of

care, by providing care which a health care providers

in appropriate safety equipment and employing

reasonable custodial policies for isolating COVID

positive residents, exposed Ricardo to the high

probability of his injury or death.

45a

48. At all times mentioned above Defendants,

and each of them, knowingly disregarded the

aforesaid peril and high probability of injury and in

doing so failed to comply with their duties under the

standard of care as set forth above, as follows:

(a) Forbidding staff from wearing appropriate

PPE;

(b) Failing to provide staff with PPE;

(d) Failing to isolate suspected or identified

COVID-19 carriers from staff or residents; and

(e) Failing to disclose known or suspected

COVID-19 carriers to staff and/or residents.

49. Defendants had made certain financial and

budgetary decisions—at the highest corporate

levels—regarding their operation based solely on the

need to enhance the profitability of their operation.

Among these decisions was the decision to limit its

purchase of PPE such that it could not meet the needs

of its residents, including Ricardo. As a foreseen and

predictable result of these cut-backs, residents and

patients — including Deceased—were exposed to the

coronavirus. These changes were knowingly in

violation of basic and humane care responsibilities.

50. By virtue of the foregoing, Defendants and

each of them have acted in conscious disregard of the

probability of injury to the Deceased, and because he

was helpless to protect himself from exposure to the

virus and Defendants failure and refusal to provide

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such basic care and services is despicable.

Accordingly, Defendants have each acted with malice.

51. By virtue of the foregoing, Defendants and

each of them have acted despicably, and have

subjected the Deceased to cruel and unjust hardship

in conscious disregard of his rights and safety.

Accordingly, Defendants have each acted with

oppression.

52. By virtue of the foregoing, punitive damages

should be assessed against Defendants and each of

them, in a sum according to proof at trial.

THIRD CAUSE OF ACTION

(Negligence)

PLAINTIFFS, INDIVIDUALLY, FOR A THIRD

CAUSE

ACTION

AGAINST

ALL

DEFENDANTS AND DOES 1 THROUGH 100,

INCLUSIVE, AND EACH OF THEM, FOR

NEGLIGENCE, ALLEGE:

53. Plaintiffs refer to each and every paragraph

above and incorporate those paragraphs as though set

forth in full in this cause of action.

54. Deceased was admitted as a resident at

Glenhaven, located at 212 W Chevy Chase Dr,

Glendale, CA 91204, for approximately the last six

years of his life.

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55. By virtue of the foregoing, Defendants and

each of them owed a duty of ordinary care to the

Deceased, to use that degree of care and skill that a

reasonably prudent person would use, and to use that

degree of care that a reasonably prudent nursing

home would owe given its knowledge, training,

expertise and skill.

56. Defendants and each of them breached the

aforesaid duty of care by failing to implement policies,

procedures, and safety measures necessary to prevent

Ricardo’s exposure to the coronavirus and by failing

to provide appropriate treatment once he was infected

by the virus.

57. As a direct and legal result of the foregoing,

the Deceased was injured in a sum according to proof

at trial.

FOURTH CAUSE OF ACTION

(Wrongful Death)

PLAINTIFFS FOR A FOURTH CAUSE OF

ACTION AGAINST ALL DEFENDANTS AND

DOES 1 THROUGH 100, INCLUSIVE, AND

EACH OF THEM, FOR WRONGFUL DEATH,

ALLEGE:

58. Plaintiffs incorporate by reference each and

every of the foregoing paragraphs as though set forth

in full in this cause of action.

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59. As a direct and proximate result of the

foregoing, Ricardo Saldana died and his heirs

represented by Plaintiffs, have been deprived of his

care, comfort and society to their general damages

according to proof.

WHEREFORE, Plaintiffs pray for judgment

against Defendants, and each of them, as follows:

• AS TO THE FIRST CAUSE OF ACTION:

1. For special and general damages according to

proof at the time of trial;

For punitive damages;

For attorney’s fees and litigation costs;

For costs of suit incurred herein; and

5. For such other and further relief as the Court

deems just and proper.

• AS TO THE SECOND CAUSE OF ACTION:

6. For special and general damages according to

proof at the time of trial;

For punitive damages;

For costs of suit incurred herein; and

9. For such other and further relief as the Court

deems just and proper.

• AS TO THE THIRD CAUSE OF ACTION:

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10. For special and general damages according to

proof at the time of trial;

11. For costs of suit incurred herein; and

12. For such other and further relief as the Court

deems just and proper.

• AS TO THE FOURTH CAUSE OF ACTION:

13. For general damages including loss of care,

comfort and society of the deceased;

14. For costs of suit incurred herein; and

15. For such other and further relief as the Court

deems just and proper.

Dated this 21st day of May 2020, at Claremont,

California.

LAW OFFICES OF

SCOTT GLOVSKY, APC

By: /s/ Scott C. Glovsky

SCOTT C. GLOVSKY

ARI DYBNIS

Attorneys for Plaintiffs

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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury.

DATED: May 21, 2020

LAW OFFICES OF

SCOTT GLOVSKY, APC

By: /s/ Scott C. Glovsky

SCOTT C. GLOVSKY

ARI DYBNIS

Attorneys for Plaintiffs

51a

APPENDIX E

United States Code

Title 42. The Public Health and Welfare

42 U.S.C. § 247d-6d

§ 247d-6d. Targeted liability protections for

pandemic and epidemic products and security

countermeasures

(a) Liability protections

(1) In general

Subject to the other provisions of this section, 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 under subsection

(b) has been issued with respect to such

countermeasure.

(2) Scope of claims for loss

(A) Loss

For purposes of this section, the term “loss” means

any type of loss, including—

(i) death;

(ii) physical, mental, or emotional injury, illness,

disability, or condition;

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(iii) fear of physical, mental, or emotional injury,

illness, disability, or condition, including any

need for medical monitoring; and

(iv) loss of or damage to property, including

business interruption loss.

Each of clauses (i) through (iv) applies without

regard to the date of the occurrence,

presentation, or discovery of the loss described in

the clause.

(B) Scope

The immunity under paragraph (1) 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.

(3) Certain conditions

Subject to the other provisions of this section,

immunity under paragraph (1) with respect to a

covered countermeasure applies only if—

(A) the countermeasure was administered or used

during the effective period of the declaration that

was issued under subsection (b) with respect to the

countermeasure;

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(B) the countermeasure was administered or used

for the category or categories of diseases, health

conditions, or threats to health specified in the

declaration; and

is a program planner or qualified person with

respect to the administration or use of the

countermeasure,

the

countermeasure

was

administered to or used by an individual who—

(i) was in a population specified by the

declaration; and

(ii) was at the time of administration physically

present in a geographic area specified by the

declaration or had a connection to such area

specified in the declaration.

(4) Applicability of certain conditions

With respect to immunity under paragraph (1) and

subject to the other provisions of this section:

(A) In the case of a covered person who is a

manufacturer or distributor of the covered

countermeasure involved, the immunity applies

without regard to whether such countermeasure

was administered to or used by an individual in

accordance with the conditions described in

paragraph (3)(C).

(B) In the case of a covered person who is a

program planner or qualified person with respect

to the administration or use of the covered

countermeasure, the scope of immunity includes

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circumstances in which the countermeasure was

administered to or used by an individual in

circumstances in which the covered person

reasonably could have believed that the

countermeasure was administered or used in

accordance with the conditions described in

paragraph (3)(C).

(5) Effect of distribution method

The provisions of this section apply to a covered

countermeasure regardless of whether such

countermeasure is

obtained

donation,

commercial sale, or any other means of distribution,

except to the extent that, under paragraph (2)(E) of

subsection (b), the declaration under such

subsection provides that subsection (a) applies only

to covered countermeasures obtained through a

particular means of distribution.

(6) Rebuttable presumption

For purposes of paragraph (1), there shall be a

rebuttable presumption that any administration or

use, during the effective period of the emergency

declaration by the Secretary under subsection (b), of

a covered countermeasure shall have been for the

category or categories of diseases, health conditions,

or threats to health with respect to which such

declaration was issued.

(b) Declaration by Secretary

(1) Authority to issue declaration

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Subject to paragraph (2), if the Secretary makes a

determination that a disease or other health

condition or other threat to health constitutes a

public health emergency, or that there is a credible

risk that the disease, condition, or threat may in the

future constitute such an emergency, the Secretary

may make a declaration, through publication in the

Federal Register, recommending, under conditions

as the Secretary may specify, the manufacture,

testing, development, distribution, administration,

or use of one or more covered countermeasures, and

stating that subsection (a) is in effect with respect

to the activities so recommended.

(2) Contents

In issuing a declaration under paragraph (1), the

Secretary shall identify, for each covered

countermeasure specified in the declaration—

(A) the category or categories of diseases, health

conditions, or threats to health for which the

Secretary recommends the administration or use

of the countermeasure;

(B) the period or periods during which, including

as modified by paragraph (3), subsection (a) is in

effect, which period or periods may be designated

by dates, or by milestones or other description of

events, including factors specified in paragraph

(6);

which subsection (a) is in effect with respect to the

administration or use of the countermeasure

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(which may be a specification that such subsection

applies without geographic limitation to all

individuals);

(D) the geographic area or areas for which

subsection (a) is in effect with respect to the

administration or use of the countermeasure

(which may be a specification that such subsection

applies without geographic limitation), including,

with respect to individuals in the populations

identified under subparagraph (C), a specification,

as determined appropriate by the Secretary, of

whether the declaration applies only to

individuals physically present in such areas or

whether in addition the declaration applies to

individuals who have a connection to such areas,

which connection is described in the declaration;

and

(E) whether subsection (a) is effective only to a

particular means of distribution as provided in

subsection

(a)(5)

for

obtaining

the

countermeasure, and if so, the particular means to

which such subsection is effective.

(3) Effective period of declaration

(A) Flexibility of period

The Secretary may, in describing periods under

paragraph (2)(B), have different periods for

different covered persons to address different

logistical, practical or other differences in

responsibilities.

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(B) Additional time to be specified

In each declaration under paragraph (1), the

Secretary, after consulting, to the extent the

Secretary

deems

appropriate,

with

the

manufacturer of the covered countermeasure,

shall also specify a date that is after the ending

date specified under paragraph (2)(B) and that

allows what the Secretary determines is—

(i) a reasonable period for the manufacturer to

arrange for disposition of the covered

countermeasure, including the return of such

product to the manufacturer; and

(ii) a reasonable period for covered persons to

take such other actions as may be appropriate to

limit administration or use of the covered

countermeasure.

stockpile countermeasures

With respect to a covered countermeasure that is

in the stockpile under section 247d-6b of this title,

if such countermeasure was the subject of a

declaration under paragraph (1) at the time that it

was obtained for the stockpile, the effective period

of such declaration shall include a period when the

countermeasure is administered or used pursuant

to a distribution or release from the stockpile.

(4) Amendments to declaration

The Secretary may through publication in the

Federal Register amend any portion of a declaration

58a

under paragraph (1). Such an amendment shall not

retroactively limit the applicability of subsection (a)

with respect to the administration or use of the

covered countermeasure involved.

(5) Certain disclosures

In publishing a declaration under paragraph (1) in

the Federal Register, the Secretary is not required

to disclose any matter described in section 552(b) of

Title 5.

(6) Factors to be considered

In deciding whether and under what circumstances

or conditions to issue a declaration under paragraph

(1) with respect to a covered countermeasure, the

Secretary shall consider the desirability of

encouraging the design, development, clinical

testing or investigation, manufacture, labeling,

distribution, formulation, packaging, marketing,

promotion, sale, purchase, donation, dispensing,

prescribing, administration, licensing, and use of

such countermeasure.

(7) 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 under this subsection.

(8) Preemption of State law

During the effective period of a declaration under

subsection (b), or at any time with respect to conduct

59a

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

investigation,

formulation,

manufacture,

distribution,

sale,

donation,

purchase, marketing, promotion, packaging,

labeling, licensing, use, any other aspect of safety

or efficacy, or the prescribing, dispensing, or

administration by qualified persons of the covered

countermeasure, or to any matter included in a

requirement

applicable

the

covered

countermeasure under this section or any other

provision of this chapter, or under the Federal

Food, Drug, and Cosmetic Act.

(9) Report to Congress

Within 30 days after making a declaration under

paragraph (1), the Secretary shall submit to the

appropriate committees of the Congress a report

that provides an explanation of the reasons for

issuing the declaration and the reasons underlying

the determinations of the Secretary with respect to

paragraph (2). Within 30 days after making an

amendment under paragraph (4), the Secretary

shall submit to such committees a report that

provides the reasons underlying the determination

of the Secretary to make the amendment.

60a

(1) Definition

(A) In general

Except as the meaning of such term is further

restricted pursuant to paragraph (2), the term

“willful misconduct” shall, for purposes of

subsection (d), denote an act or omission that is

taken—

(i) intentionally to achieve a wrongful purpose;

(ii) knowingly without

justification; and

legal

factual

(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.

(B) Rule of construction

The criterion stated in subparagraph (A) shall be

construed as establishing a standard for liability

that is more stringent than a standard of

negligence in any form or recklessness.

(2) Authority to promulgate regulatory definition

(A) In general

The Secretary, in consultation with the Attorney

General, shall promulgate regulations, which may

be promulgated through interim final rules, that

further restrict the scope of actions or omissions by

61a

a covered person that may qualify as “willful

misconduct” for purposes of subsection (d).

(B) Factors to be considered

In promulgating the regulations under this

paragraph, the Secretary, in consultation with the

Attorney General, shall consider the need to define

the scope of permissible civil actions under

subsection (d) in a way that will not adversely

affect the public health.

The regulations under this paragraph may specify

the temporal effect that they shall be given for

purposes of subsection (d).

(D) Initial rulemaking

Within 180 days after December 30, 2005, the

Secretary, in consultation with the Attorney

General, shall commence and complete an initial

rulemaking process under this paragraph.

(3) Proof of willful misconduct

In an action under subsection (d), the plaintiff shall

have the burden of proving by clear and convincing

evidence willful misconduct by each covered person

sued and that such willful misconduct caused death

or serious physical injury.

(4) Defense for acts or omissions taken pursuant to

Secretary's declaration

62a

Notwithstanding any other provision of law, a

program planner or qualified person shall not have

engaged in “willful misconduct” as a matter of law

where such program planner or qualified person

acted consistent with applicable directions,

guidelines, or recommendations by the Secretary

regarding the administration or use of a covered

countermeasure that is specified in the declaration

under subsection (b), provided either the Secretary,

or a State or local health authority, was provided

with notice of information regarding serious

physical injury or death from the administration or

use of a covered countermeasure that is material to

the plaintiff's alleged loss within 7 days of the actual

discovery of such information by such program

planner or qualified person.

(5) Exclusion for regulated activity of manufacturer

or distributor

(A) In general

If an act or omission by a manufacturer or

distributor

with

respect

covered

countermeasure, which act or omission is alleged

under subsection (e)(3)(A) to constitute willful

misconduct, is subject to regulation by this chapter

or by the Federal Food, Drug, and Cosmetic Act,

such act or omission shall not constitute “willful

misconduct” for purposes of subsection (d) if—

(i) neither the Secretary nor the Attorney

General has initiated an enforcement action with

respect to such act or omission; or

63a

(ii) such an enforcement action has been initiated

and the action has been terminated or finally

resolved without a covered remedy.

Any action or proceeding under subsection (d)

shall be stayed during the pendency of such an

enforcement action.

(B) Definitions

For purposes of this paragraph, the following

terms have the following meanings:

(i) Enforcement action

The term “enforcement action” means a criminal

prosecution, an action seeking an injunction, a

seizure action, a civil monetary proceeding based

on willful misconduct, a mandatory recall of a

product because voluntary recall was refused, a

proceeding to compel repair or replacement of a

product, a termination of an exemption under

section 505(i) or 520(g) of the Federal Food,

Drug, and Cosmetic Act, a debarment

proceeding, an investigator disqualification

proceeding where an investigator is an employee

or agent of the manufacturer, a revocation, based

on willful misconduct, of an authorization under

section 564 of such Act, or a suspension or

withdrawal, based on willful misconduct, of an

approval or clearance under chapter V of such

Act or of a licensure under section 262 of this

title.

(ii) Covered remedy

64a

The term “covered remedy” means an outcome—

(I) that is a criminal conviction, an injunction,

or a condemnation, a civil monetary payment,

a product recall, a repair or replacement of a

product, a termination of an exemption under

section 505(i) or 520(g) of the Federal Food,

Drug, and Cosmetic Act, a debarment, an

investigator disqualification, a revocation of an

authorization under section 564 of such Act, or

a suspension or withdrawal of an approval or

clearance under chapter 51 of such Act or of a

licensure under section 262 of this title; and

(II) that results from a final determination by

a court or from a final agency action.

(iii) Final

The terms “final” and “finally”—

(I) with respect to a court determination, or to

a final resolution of an enforcement action that

is a court determination, mean a judgment

from which an appeal of right cannot be taken

or a voluntary or stipulated dismissal; and

(II) with respect to an agency action, or to a

final resolution of an enforcement action that is

an agency action, mean an order that is not

subject to further review within the agency and

that has not been reversed, vacated, enjoined,

or otherwise nullified by a final court

determination or a voluntary or stipulated

dismissal.

65a

(i) In general

Nothing in this paragraph shall be construed—

(I) to affect the interpretation of any provision

of the Federal Food, Drug, and Cosmetic Act, of

this chapter, or of any other applicable statute

or regulation; or

(II) to impair, delay, alter, or affect the

authority,

including

the

enforcement

discretion, of the United States, of the

Secretary, of the Attorney General, or of any

other

official

with

respect

any

administrative or court proceeding under this

chapter, under the Federal Food, Drug, and

Cosmetic Act, under Title 18, or under any

other applicable statute or regulation.

(ii) Mandatory recalls

A mandatory recall called for in the declaration

is not a Food and Drug Administration

enforcement action.

(d) Exception to immunity of covered persons

(1) In general

Subject to subsection (f), 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

66a

by willful misconduct, as defined pursuant to

subsection (c), by such covered person. For purposes

of section 2679(b)(2)(B) of Title 28, 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.

(e) Procedures for suit

(1) Exclusive Federal jurisdiction

Any action under subsection (d) shall be filed and

maintained only in the United States District Court

for the District of Columbia.

(2) Governing law

The substantive law for decision in an action under

subsection (d) shall be derived from the law,

including choice of law principles, of the State in

which the alleged willful misconduct occurred,

unless such law is inconsistent with or preempted

by Federal law, including provisions of this section.

(3) Pleading with particularity

In an action under subsection (d), the complaint

shall plead with particularity each element of the

plaintiff's claim, including—

67a

(A) each act or omission, by each covered person

sued, that is alleged to constitute willful

misconduct

relating

the

covered

countermeasure administered to or used by the

person on whose behalf the complaint was filed;

(B) facts supporting the allegation that such

alleged willful misconduct proximately caused the

injury claimed; and

on whose behalf the complaint was filed suffered

death or serious physical injury.

(4) Verification, certification, and medical records

(A) In general

In an action under subsection (d), the plaintiff

shall verify the complaint in the manner stated in

subparagraph (B) and shall file with the complaint

the materials described in subparagraph (C). A

complaint that does not substantially comply with

subparagraphs (B) and (C) shall not be accepted

for filing and shall not stop the running of the

statute of limitations.

(B) Verification requirement

(i) In general

The complaint shall include a verification, made

by affidavit of the plaintiff under oath, stating

that the pleading is true to the knowledge of the

deponent, except as to matters specifically

identified as being alleged on information and

68a

belief, and that as to those matters the plaintiff

believes it to be true.

(ii) Identification of matters alleged upon

information and belief

Any matter that is not specifically identified as

being alleged upon the information and belief of

the plaintiff, shall be regarded for all purposes,

including a criminal prosecution, as having been

made upon the knowledge of the plaintiff.

In an action under subsection (d), the plaintiff

shall file with the complaint—

(i) an affidavit, by a physician who did not treat

the person on whose behalf the complaint was

filed, certifying, and explaining the basis for such

physician's belief, that such person suffered the

serious physical injury or death alleged in the

complaint and that such injury or death was

proximately caused by the administration or use

of a covered countermeasure; and

(ii) certified medical records documenting such

injury or death and such proximate causal

connection.

(5) Three-judge court

Any action under subsection (d) shall be assigned

initially to a panel of three judges. Such panel shall

have jurisdiction over such action for purposes of

considering motions to dismiss, motions for

69a

summary judgment, and matters related thereto. If

such panel has denied such motions, or if the time

for filing such motions has expired, such panel shall

refer the action to the chief judge for assignment for

further proceedings, including any trial. Section

1253 of Title 28 and paragraph (3) of subsection (b)

of section 2284 of Title 28 shall not apply to actions

under subsection (d).

(6) Civil discovery

(A) Timing

In an action under subsection (d), no discovery

shall be allowed—

(i) before each covered person sued has had a

reasonable opportunity to file a motion to

dismiss;

(ii) in the event such a motion is filed, before the

court has ruled on such motion; and

(iii) in the event a covered person files an

interlocutory appeal from the denial of such a

motion, before the court of appeals has ruled on

such appeal.

(B) Standard

Notwithstanding any other provision of law, the

court in an action under subsection (d) shall

permit discovery only with respect to matters

directly related to material issues contested in

such action, and the court shall compel a response

to a discovery request (including a request for

70a

admission, an interrogatory, a request for

production of documents, or any other form of

discovery request) under Rule 37, Federal Rules of

Civil Procedure, only if the court finds that the

requesting party needs the information sought to

prove or defend as to a material issue contested in

such action and that the likely benefits of a

response to such request equal or exceed the

burden or cost for the responding party of

providing such response.

(7) Reduction in award of damages for collateral

source benefits

(A) In general

In an action under subsection (d), the amount of

an award of damages that would otherwise be

made to a plaintiff shall be reduced by the amount

of collateral source benefits to such plaintiff.

(B) Provider of collateral source benefits not to

have lien or subrogation

No provider of collateral source benefits shall

recover any amount against the plaintiff or receive

any lien or credit against the plaintiff's recovery or

be equitably or legally subrogated to the right of

the plaintiff in an action under subsection (d).

For purposes of this paragraph, the term

“collateral source benefit” means any amount paid

or to be paid in the future to or on behalf of the

plaintiff, or any service, product, or other benefit

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provided or to be provided in the future to or on

behalf of the plaintiff, as a result of the injury or

wrongful death, pursuant to—

(i) any State or Federal health, sickness, incomedisability, accident, or workers' compensation

law;

(ii) any health, sickness, income-disability, or

accident insurance that provides health benefits

or income-disability coverage;

(iii) any contract or agreement of any group,

organization, partnership, or corporation to

provide, pay for, or reimburse the cost of medical,

hospital, dental, or income disability benefits; or

(iv) any other publicly or privately funded

program.

(8) Noneconomic damages

In an action under subsection (d), any noneconomic

damages may be awarded only in an amount

directly proportional to the percentage of

responsibility of a defendant for the harm to the

plaintiff. For purposes of this paragraph, the term

“noneconomic damages” means damages for losses

for physical and emotional pain, suffering,

inconvenience, physical impairment, mental

anguish, disfigurement, loss of enjoyment of life,

loss of society and companionship, loss of

consortium, hedonic damages, injury to reputation,

and any other nonpecuniary losses.

(9) Rule 11 sanctions

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Whenever a district court of the United States

determines that there has been a violation of Rule

11 of the Federal Rules of Civil Procedure in an

action under subsection (d), the court shall impose

upon the attorney, law firm, or parties that have

violated Rule 11 or are responsible for the violation,

an appropriate sanction, which may include an

order to pay the other party or parties for the

reasonable expenses incurred as a direct result of

the filing of the pleading, motion, or other paper

that is the subject of the violation, including a

reasonable attorney's fee. Such sanction shall be

sufficient to deter repetition of such conduct or

comparable conduct by others similarly situated,

and to compensate the party or parties injured by

such conduct.

(10) Interlocutory appeal

The United States Court of Appeals for the District

of Columbia Circuit shall have jurisdiction of an

interlocutory appeal by a covered person taken

within 30 days of an order denying a motion to

dismiss or a motion for summary judgment based on

an assertion of the immunity from suit conferred by

subsection (a) or based on an assertion of the

exclusion under subsection (c)(5).

(f) Actions by and against the United States

Nothing in this section shall be construed to abrogate

or limit any right, remedy, or authority that the

United States or any agency thereof may possess

under any other provision of law or to waive sovereign

immunity or to abrogate or limit any defense or

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protection available to the United States or its

agencies, instrumentalities, officers, or employees

under any other law, including any provision of

chapter 171 of Title 28 (relating to tort claims

procedure).

(g) Severability

If any provision of this section, or the application of

such provision to any person or circumstance, is held

to be unconstitutional, the remainder of this section

and the application of such remainder to any person

or circumstance shall not be affected thereby.

(h) Rule of construction concerning National Vaccine

Injury Compensation Program

Nothing in this section, or any amendment made by

the Public Readiness and Emergency Preparedness

Act, shall be construed to affect the National Vaccine

Injury Compensation Program under subchapter XIX

of this chapter.

(i) Definitions

In this section:

(1) Covered countermeasure

The term “covered countermeasure” means—

(A) a qualified pandemic or epidemic product (as

defined in paragraph (7));

(B) a security countermeasure (as defined in

section 247d-6b(c)(1)(B) of this title);

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201(g)(1) of the Federal Food, Drug, and Cosmetic

Act (21 U.S.C. 321(g)(1)),2 biological product (as

such term is defined by section 262(i) of this title),

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; 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 247d of this

title.

(2) Covered person

The term “covered person”, when used with respect

to the administration or use of a covered

countermeasure, means—

(A) the United States; or

(B) a person or entity that is—

(i) a manufacturer of such countermeasure;

(ii) a distributor of such countermeasure;

(iii) a program planner of such countermeasure;

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(iv) a qualified person who prescribed,

administered,

dispensed

such

countermeasure; or

(v) an official, agent, or employee of a person or

entity described in clause (i), (ii), (iii), or (iv).

(3) Distributor

The term “distributor” means a person or entity

engaged in the distribution of drugs, biologics, or

devices, including but not limited to manufacturers;

repackers; common carriers; contract carriers; air

carriers; own-label distributors; private-label

distributors; jobbers; brokers; warehouses, and

wholesale drug warehouses; independent wholesale

drug traders; and retail pharmacies.

(4) Manufacturer

The term “manufacturer” includes—

(A) a contractor

manufacturer;

subcontractor

(B) a supplier or licenser of any product,

intellectual property, service, research tool, or

component or other article used in the design,

development, clinical testing, investigation, or

manufacturing of a covered countermeasure; and

affiliates, successors, and assigns of a

manufacturer.

(5) Person

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The term “person” includes an individual,

partnership, corporation, association, entity, or

public or private corporation, including a Federal,

State, or local government agency or department.

(6) Program planner

The term “program planner” means a State or local

government, including an Indian tribe, a person

employed by the State or local government, or other

person who supervised or administered a program

with respect to the administration, dispensing,

distribution, provision, or use of a security

countermeasure or a qualified pandemic or epidemic

product, including a person who has established

requirements, provided policy guidance, or supplied

technical or scientific advice or assistance or

provides a facility to administer or use a covered

countermeasure in accordance with a declaration

under subsection (b).

(7) Qualified pandemic or epidemic product

The term “qualified pandemic or epidemic product”

means 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)),2 biological product (as

such term is defined by section 262(i) of this title),

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))2 that is—

(A)

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(i) a product manufactured, used, designed,

developed, modified, licensed, or procured—

(I) to diagnose, mitigate, prevent, treat, or cure

a pandemic or epidemic; or

(II) to limit the harm such pandemic or

epidemic might otherwise cause;

(ii) a product manufactured, used, designed,

developed, modified, licensed, or procured to

diagnose, mitigate, prevent, treat, or cure a

serious or life-threatening disease or condition

caused by a product described in clause (i); or

(iii) a product or technology intended to enhance

the use or effect of a drug, biological product, or

device described in clause (i) or (ii); and

(B)

(i) approved or cleared under chapter V of the

Federal Food, Drug, and Cosmetic Act or

licensed under section 262 of this title;

(ii) the object of research for possible use as

described by subparagraph (A) and is the subject

of an exemption under section 505(i) or 520(g) of

the Federal Food, Drug, and Cosmetic Act; or

(iii) authorized for emergency use in accordance

with section 564, 564A, or 564B of the Federal

Food, Drug, and Cosmetic Act.

(8) Qualified person

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The term “qualified person”, when used with respect

to the administration or use of a covered

countermeasure, means—

(A) a licensed health professional or other

individual who is authorized to prescribe,

administer, or dispense such countermeasures

under the law of the State in which the

countermeasure was prescribed, administered, or

dispensed; or

(B) a person within a category of persons so

identified in a declaration by the Secretary under

subsection (b).

(9) Security countermeasure

The term “security countermeasure” has the

meaning given such term in section 247d-6b(c)(1)(B)

of this title.

(10) Serious physical injury

The term “serious physical injury” means an injury

that—

(A) is life threatening;

(B) results in permanent impairment of a body

function or permanent damage to a body structure;

preclude permanent impairment of a body

function or permanent damage to a body structure.

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APPENDIX F

United States Code

Title 42. The Public Health and Welfare

42 U.S.C. § 247d-6e

§ 247d-6e. Covered countermeasure process

(a) Establishment of Fund

Upon the issuance by the Secretary of a declaration

under section 247d-6d(b) of this title, there is hereby

established in the Treasury an emergency fund

designated as the “Covered Countermeasure Process

Fund” for purposes of providing timely, uniform, and

adequate compensation to eligible individuals for

covered injuries directly caused by the administration

or use of a covered countermeasure pursuant to such

declaration, which Fund shall consist of such amounts

designated as emergency appropriations under

section 402 of H. Con. Res. 95 of the 109th Congress,

this emergency designation shall remain in effect

through October 1, 2006.

(b) Payment of compensation

(1) In general

If the Secretary issues a declaration under 247d6d(b) of this title, the Secretary shall, after amounts

have by law been provided for the Fund under

subsection (a), provide compensation to an eligible

individual for a covered injury directly caused by the

administration or use of a covered countermeasure

pursuant to such declaration.

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(2) Elements of compensation

The compensation that shall be provided pursuant

to paragraph (1) shall have the same elements, and

be in the same amount, as is prescribed by sections

239c, 239d, and 239e of this title in the case of

certain individuals injured as a result of

administration of certain countermeasures against

smallpox, except that section 239e(a)(2)(B) of this

title shall not apply.

(3) Rule of construction

Neither reasonable and necessary medical benefits

nor lifetime total benefits for lost employment

income due to permanent and total disability shall

be limited by section 239e of this title.

(4) Determination of eligibility and compensation

Except as provided in this section, the procedures

for determining, and for reviewing a determination

of, whether an individual is an eligible individual,

whether such individual has sustained a covered

injury, whether compensation may be available

under this section, and the amount of such

compensation shall be those stated in section 239a

of this title (other than in subsection (d)(2) of such

section), in regulations issued pursuant to that

section, and in such additional or alternate

regulations as the Secretary may promulgate for

purposes of this section. In making determinations

under this section, other than those described in

paragraph (5)(A) as to the direct causation of a

covered injury, the Secretary may only make such

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determination based on compelling, reliable, valid,

medical and scientific evidence.

(5) Covered countermeasure injury table

(A) In general

The Secretary shall by regulation establish a table

identifying covered injuries that shall be

presumed to be directly caused by the

administration or use of a covered countermeasure

and the time period in which the first symptom or

manifestation of onset of each such adverse effect

must manifest in order for such presumption to

apply. The Secretary may only identify such

covered injuries, for purpose of inclusion on the

table, where the Secretary determines, based on

compelling, reliable, valid, medical and scientific

evidence that administration or use of the covered

countermeasure directly caused such covered

injury.

(B) Amendments

The provisions of section 239b of this title (other

than a provision of subsection (a)(2) of such section

that relates to accidental vaccinia inoculation)

shall apply to the table established under this

section.

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 under this paragraph.

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(6) Meanings of terms

In applying sections 239a, 239b, 239c, 239d, and

239e of this title for purposes of this section—

(A) the terms “vaccine” and “smallpox vaccine”

shall be deemed to mean a covered

countermeasure;

(B) the terms “smallpox vaccine injury table” and

“table established under section 239b of this title”

shall be deemed to refer to the table established

under paragraph (4); and

the meanings given to such terms by this section.

The Secretary shall ensure that a State, local, or

Department of Health and Human Services plan to

administer or use a covered countermeasure is

consistent with any declaration under 247d-6d of this

title and any applicable guidelines of the Centers for

Disease Control and Prevention and that potential

participants are educated with respect to

contraindications, the voluntary nature of the

program, and the availability of potential benefits and

compensation under this part.

(d) Exhaustion; exclusivity; election

(1) Exhaustion

Subject to paragraph (5), a covered individual may

not bring a civil action under section 247d-6d(d) of

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this title against a covered person (as such term is

defined in section 247d-6d(i)(2) of this title) unless

such individual has exhausted such remedies as are

available under subsection (a), except that if

amounts have not by law been provided for the Fund

under subsection (a), or if the Secretary fails to

make a final determination on a request for benefits

or compensation filed in accordance with the

requirements of this section within 240 days after

such request was filed, the individual may seek any

remedy that may be available under section 247d6d(d) of this title.

(2) Tolling of statute of limitations

The time limit for filing a civil action under section

247d-6d(d) of this title for an injury or death shall

be tolled during the pendency of a claim for

compensation under subsection (a).

(3) Rule of construction

This section shall not be construed as superseding

or otherwise affecting the application of a

requirement, under chapter 171 of Title 28, to

exhaust administrative remedies.

(4) Exclusivity

The remedy provided by subsection (a) shall be

exclusive of any other civil action or proceeding for

any claim or suit this section encompasses, except

for a proceeding under section 247d-6d of this title.

(5) Election

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If under subsection (a) the Secretary determines

that a covered individual qualifies for compensation,

the individual has an election to accept the

compensation or to bring an action under section

247d-6d(d) of this title. If such individual elects to

accept the compensation, the individual may not

bring such an action.

(e) Definitions

For purposes of this section, the following terms shall

have the following meanings:

(1) Covered countermeasure

The term “covered countermeasure” has the

meaning given such term in section 247d-6d of this

title.

(2) Covered individual

The term “covered individual”, with respect to

administration or use of a covered countermeasure

pursuant to a declaration, means an individual—

(A) who is in a population specified in such

declaration, and with respect to whom the

administration

use

the

covered

countermeasure satisfies the other specifications

of such declaration; or

(B) who uses the covered countermeasure, or to

whom

the

covered

countermeasure

administered, in a good faith belief that the

individual is in the category described by

subparagraph (A).

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(3) Covered injury

The term “covered injury” means serious physical

injury or death.

(4) Declaration

The term “declaration” means a declaration under

section 247d-6d(b) of this title.

(5) Eligible individual

The term “eligible individual” means an individual

who is determined, in accordance with subsection

(b), to be a covered individual who sustains a

covered injury.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.