An Analysis of Federal Jurisdiction of Personal Injury Claims Arising Out of the Pandemic
A host of tort lawsuits filed over the past few years involving nursing homes and patients’ allegations that they contracted COVID-19 due to the nursing homes’ negligence provides an opportunity for national and multi-state employers to analyze and prepare for how to respond to future tort claims arising from the COVID-19 pandemic and its aftermath.
In a blow to the healthcare employer industry, the U.S. Supreme Court in November 2022 declined to hear California nursing home Glenhaven Healthcare’s appeal of the Ninth Circuit Court of Appeals’ ruling denying Glenhaven’s bid to remove to federal court a wrongful death law- suit filed by one of its patients in 2020. Attorneys on behalf of the estate of Ricardo Saldana, a Glenhaven resident who died of COVID-19 in May 2020, filed the lawsuit in California state court, alleging that Glenhaven did not provide proper personal protective equipment to employees and did not identify or isolate workers or residents who had or were suspected of having COVID-19. (Similar lawsuits across the country have alleged the failure to enforce social distancing, implement and/or follow proper infection protocols and guidelines, and effectively train employees to take pre- cautions to prevent the spread of the virus). In response, Glenhaven removed the case from state to federal court, but the U.S. District Court for the Central District of California remanded the case back to state court in October 2020. Glenhaven then appealed to the Ninth Circuit.
Crucially, the Ninth Circuit upheld the remand even though Saldana had pled a claim for Glenhaven’s willful misconduct, a claim which the Third Circuit Court of Appeals in 2021 held provided an exclusive federal cause of action (i.e., could not be litigated in state court). Such claims for willful misconduct were specifically mentioned in the Public Readiness and Emergency Preparedness (PREP) Act, which was originally signed into law in 2005 to encourage the rapid production of vaccines in the midst of a public health emergency. [Previously, plaintiffs would often intentionally decline to make claims for willful misconduct, reasoning that courts would grant defendants’ removals to federal court based solely on the inclusion of those claims].
Saldana v. Glenhaven hinged entirely on the scope of the PREP Act. Importantly, the Act provides—or arguably provides—immunity from tort liability for certain types of employers during a public health emergency. Within the context of the COVID- 19 pandemic, some courts have found companies to be protected under PREP if they were engaged in providing “counter- measures” to fight the pandemic, such as using personal protective equipment in their businesses, implementing reliable COVID-19 tests, or administering vaccines. Notably, the Office of General Counsel of the Department of Health & Human Services has issued several advisory opinions stating that the PREP Act is a complete preemption statute and that nursing homes are specifically entitled to its protection if they provide covered countermeasures.
Ever since the PREP Act was signed into law in 2005, but especially since the COVID-19 outbreak, employers such as Glenhaven have sought to remove to federal court any tort claims that arguably are covered under the Act, arguing that a state court does not have jurisdiction to decide such federal questions. Now, following the Supreme Court’s refusal to hear the Saldana v. Glenhaven case, it is likely that many more of these types of tort claims will stay in state court—particularly in those states within the Ninth Circuit’s jurisdiction.
By no means, however, does this represent the end of the story. Currently, the Second, Third, Fifth, Seventh and Eleventh Circuits have either recently considered or are going to consider the same issue of whether personal injury, wrongful death, and other negligence suits filed in state court can be removed to federal court if they involve alleged harms ostensibly protected under the PREP Act. Depending on the facts of the specific case, the U.S. Supreme Court could very well agree to take up the issue and hear one of these cases, particularly considering the wide-ranging
implications of limiting or broadening an employer’s remedy of seeking federal court jurisdiction in response to state tort claims arising out of the COVID-19 pandemic. Employers, then, should take heart that there is currently no Supreme Court precedent on the issue, and the right case may still be out there. Similarly, until the remaining circuits (i.e., besides the Third and Ninth circuits) consider the question and issue their decisions, plaintiffs in these jurisdictions are stuck with the conflicting Third and Ninth Circuit decisions and may be hesitant to bring claims that could result in preemption or removal on PREP Act grounds.
Finally, companies with some plausible connection to healthcare and/or public health and safety—such as trucking companies engaged in transporting mate- rials necessary to fight the COVID-19 pandemic, which can arguably be construed as “countermeasures” under PREP—should consider thinking outside the box when confronted with claims filed in state court for personal injury or wrongful death arising out of acts that occurred during the pandemic (roughly 2020 through 2022). In the context discussed in this article, they should consider seeking protection under the PREP Act via removal to federal court, at least until a uniform national precedent has been established. Before doing so, of course, a thorough analysis of the facts of the case, the specific claims being pled, and the potential establishment of negative precedent should be carefully considered with the assistance of legal counsel.
Originally published in the Summer 2023 Edition of USLAW Magazine