Law360 (July 17, 2020, 12:01 PM EDT) -- The operators of a Massachusetts soldiers' home at the center of a deadly COVID-19 outbreak that killed 76 veterans and sickened 84 more were hit with a proposed class action Friday alleging their mistakes and "indifference" let the virus spread inside the facility.
The Holyoke Soldiers' Home has already been slammed for a "baffling" response to the outbreak in a state-ordered report by McDermott Will & Emery LLP partner Mark Pearlstein. On Friday, the estate of a Korean War veteran who died due to COVID-19 said the state and the operators of the long-term care facility failed to ensure the safety of elderly veterans who were unable to care for themselves.
"As a result of the defendants' actions and inactions, 76 veterans unnecessarily died and another 84 veterans were unnecessarily infected with the deadly COVID-19 virus," the complaint states. "Our veterans deserved better."
According to the jury demand, the plaintiffs are seeking $176 million. The suit says the unchecked spread of the disease was preventable and, pointing to Pearlstein's report, argues that the facts outlining how the tragic events unfolded are largely not in dispute.
"An independent investigation, commissioned by the governor of the commonwealth, details the unprofessional, unethical, and deliberately indifferent behavior of the five individuals primarily charged with the care of the veterans at the Soldiers' Home, the defendants in this lawsuit," the suit says.
The suit is being led by Paul Sniadach, the son and representative of the estate of the late Joseph Sniadach. He seeks to lead a class of veterans who contracted COVID-19 while at the Holyoke Soldiers' Home between March 1 and June 23.
While blasting the state for "not keeping its promise" to care for the vulnerable veterans, the complaint names five individuals, including Bennett Walsh, the former superintendent, and Francisco Urena, the former Massachusetts Secretary of Veterans' Affairs who stepped down as a result of the outbreak.
The suit faults the former cabinet member for Massachusetts Gov. Charlie Baker for being "indifferent" despite knowing Walsh lacked the skill set to run the facility.
"Before Mr. Walsh was appointed as Superintendent in May 2016, Secretary Urena was aware of the fact that Mr. Walsh had no experience in either healthcare or healthcare administration," the complaint states.
Walsh was placed on administrative leave at the end of March and Baker appointed Pearlstein to investigate on April 1.
David Clinton, the facility's former medical director; Vanessa Lauziere, the former chief nursing officer; and Celeste Surreira, the former assistant director of nursing, are also named in the suit.
Neither the state nor Baker is named as a defendant.
The allegations in the complaint closely mirror the findings in Pearlstein's report. Among the most catastrophic decisions made by Walsh and the other higher ups at the facility was the choice to combine two dementia units into a single space after the virus had already broken out, the report and the suit note.
Consolidating the two units runs afoul of basic social distancing and isolation measures that have become commonplace in combating the virus and resulted in more than 40 veterans packed into a space designed to hold 25, the documents state.
"The first veteran at the Soldiers' Home diagnosed with COVID-19 (referred to in the report as 'Veteran 1') had clear symptoms that he carried the virus in February 2020, but he was not tested until March 17, 2020," the complaint states, " and, even after receiving his positive test result on March 21, 2020, the defendants allowed Veteran 1 to continue living among other veterans and staff because, in Dr. Clinton's opinion, consideration of whether to isolate him was a 'moot point' since 'everyone has been exposed [to COVID-19] already.'"
That veteran was tested for the flu, pneumonia and strep, the suit says, but not COVID-19, despite weeks of showing textbook symptoms. The veteran died in late March.
The Pearlstein report described Walsh as unfit to run a long-term care facility like the Soldiers' Home and faulted the Department of Veterans' Services for leaving him in charge without oversight despite knowing of his shortcomings.
Walsh's attorney, William Bennett of Doherty Wallace Pillsbury & Murphy PC, told Law360 on Friday he is reviewing the complaint and expects to have a comment on behalf of his client next week.
A representative for Baker, who described the Pearlstein report as "nothing short of gut wrenching," did not immediately respond to a comment request Friday and the other defendants could not immediately be reached. The governor told reporters during an afternoon press conference Friday that he would not comment on pending litigation.
Attorney General Maura Healey announced her own investigation into the events that transpired at the Soldiers' Home and said her office will review the "systemic failures of oversight by the Baker administration" outlined in the report to determine whether "these missteps and errors warrant legal action."
The U.S. Department of Justice and the state inspector general are also conducting investigations into the outbreak.
Released in June, Pearlstein's report included grim details of the tragedy, quoting one staff member lamenting the feeling that she was "walking [the veterans] to their death" and a social worker who likened the consolidation of the locked units to "moving the concentration camp — we [were] moving these unknowing veterans off to die."
The suit describes Joseph Sniadach, who died April 27, as an "energetic soul" with a love of sports, cigars, food and casinos. Counsel for his son and the proposed class did not immediately respond to a comment request Friday.
Sniadach and the proposed class are represented by Michael E. Aleo of Lesser Newman & Nasser LLP.
Walsh is represented by William M. Bennett of Doherty Wallace Pillsbury & Murphy PC.
Counsel information for the other defendants was not available.
The case is Sniadach v. Walsh et al., case number 3:20-cv-30115, in the U.S. District Court for the District of Massachusetts.
--Additional reporting by Brian Dowling. Editing by Alyssa Miller.
Update: This story has been updated with additional counsel information and a comment from Walsh's attorney.
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