By Matthew Santoni

Law360 (October 16, 2020, 4:28 PM EDT) -- A Pittsburgh-area nursing home can't claim immunity from a housekeeper's COVID-19 wrongful-death suit because a federal law only gives health care providers protection for treatments and protective measures they use, not measures they were allegedly negligent in ignoring, a Pennsylvania federal judge ruled Friday.

Senior U.S. District Judge Arthur J. Schwab said Comprehensive Healthcare Management Services LLC, which runs the Brighton Rehabilitation and Wellness Center in Beaver County, Pennsylvania, couldn't use the federal Public Readiness and Protection Act to claim federal preemption and immunity from a lawsuit the estate of Elizabeth Wiles filed claiming Brighton Rehab had failed to take precautions and prevent staff like her from catching the coronavirus.

"The PREP Act creates immunity for all claims of loss causally connected to the use of covered countermeasures. The allegations asserted by plaintiff in her complaint directly suggest that the decedent died because Brighton failed to use countermeasures," Judge Schwab wrote in his opinion. "Plaintiff's negligence, misrepresentation, wrongful death and survivor claims are not causally connected to Brighton's use of covered countermeasures. Thus, plaintiff's allegations do not fall within the purview of the PREP Act."

Judge Schwab granted a motion by Vanessa Sherod, representing Wiles' estate, to remand the case from federal court to the Allegheny County Court of Common Pleas, where it had originally been filed in July.

According to the lawsuit, Brighton Rehab failed to take sufficient steps to prevent the spread of the coronavirus among patients and staff, didn't provide protective equipment and downplayed the severity of the virus even as it spread through the facility. By June, Brighton Rehab had 368 patients who tested positive for the disease, 108 positive staff members and 80 deaths linked to the outbreak, the suit said.

Wiles, a 69-year-old cancer survivor under a contract as a housekeeper at the facility, allegedly raised concerns with her employers that she was vulnerable to the virus, but was told to keep coming to work. She contracted the disease and died May 10.

Brighton removed the case to federal court in August, claiming the complaint, at its heart, is about how the facility used protective equipment, which brought it under the federal PREP Act and the jurisdiction of the federal court.

Under the PREP Act, a "covered person" can be immune from claims under federal and state law for losses related to the use of countermeasures during a declared public health emergency, the opinion said. Brighton had pointed to a letter from Robert Charrow, general counsel for the Secretary of Department of Health and Human Services, saying that nursing homes were "covered persons" in its argument that it was immune under the act and that the estate's claims should be preempted.

But Judge Schwab disagreed, ruling that the estate's claims fell outside the PREP Act because they related to the facility's alleged failure to use countermeasures.

"This court finds that because plaintiff's complaint alleges that Brighton failed to provide decedent with any protection/countermeasures, plaintiff's claims fall outside the purview of the PREP Act which purports to provide immunity to facilities like Brighton when a claim is brought against them for the countermeasures the facility actually utilized," he wrote.

He cited the New York Superior Court's 2014 ruling in Casablanca v. Mount Sinai Medical Center , which noted that while the law covered the hospital's use of an H1N1 flu vaccine, it didn't preempt a lawsuit related to a patient who wasn't given the vaccine and died of H1N1 as a result.

"We are pleased with Judge Schwab's timely analysis rejecting federal jurisdiction, and look forward to prosecuting the case on its merits in the Allegheny County Court of Common Pleas," said David Kwass of Saltz Mongeluzzi & Bendesky PC, one of the attorneys representing the estate.

Counsel for Brighton Rehab and the housekeeping contractor, Healthcare Services Group, did not immediately respond to requests for comment. But they filed a motion later Friday asking the court to stay remand so the judge could also address another part of Brighton's petition for removal.

That part had claimed the nursing home was acting as a "federal officer" under guidance from the Centers for Medicare and Medicaid Services and the Centers for Disease Control and Prevention, which, early in the pandemic, advised that facilities preserve protective gear and said that authorities would not cite them for shortages outside of the facilities' control.

"The memorandum opinion only addressed defendant's arguments for removal under the PREP Act, and did not address or issue a ruling on defendant's removal pursuant to the federal officer removal statute, which provides an independent basis for federal jurisdiction," the request for a stay said.

Sherod and Wiles' estate are represented by Robert J. Mongeluzzi, David L. Kwass and Elizabeth A. Bailey of Saltz Mongeluzzi & Bendesky PC.

Brighton and its associated companies and executives are represented by Andrew G. Kimball and Erica Kelly Curren of Gordon & Rees LLP.

Healthcare Services Group and its associated companies are represented by Jennifer M. Swistak of Cipriani & Werner PC.

The case is Sherod v. Comprehensive Healthcare Management Services Inc. et al., case number 2:20-cv-01198, in the U.S. District Court for the Western District of Pennsylvania, and case number GD-20-007319, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Jack Karp.

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