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Long-Term Care and Appellate Practices Collaborate to Prepare Amicus Brief to the U.S. Court of Appeals for the Third Circuit in Challenge to COVID-19 Remand Order

March 23, 2021

Lori Semlies (Partner-White Plains, NY) and Daniel Tranen (Partner-Edwardsville, IL | St. Louis, MO) of the Long-Term Care Practice and Melissa Murphy-Petros (Of-Counsel-Chicago, IL) of the Appellate Practice team have partnered to file an amicus brief in support of the appellants in Estate of Maglioli, et al. v. Alliance HC Holdings, LLC, et al., Nos. 20-2833 and 20-2834 in the U.S. Court of Appeals for the Third Circuit.

In Maglioli, 478 F. Supp. 3d 518 (D. N.J. 2020), plaintiffs asserted state-law claims of negligence, wrongful death, and medical malpractice on behalf of residents or patients at defendants’ nursing care facilities who died of COVID-19, allegedly as a result of defendants’ failure to exercise due care with respect to coronavirus infections. Plaintiffs filed suit in New Jersey state court. Defendants removed the action to federal court on two grounds. First, defendants asserted that plaintiffs’ action is preempted by a federal statute: the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§247-d-6d, 247-d-6e (2006) as modified by the Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (Mar. 17, 2020) (collectively the PREP Act).  Defendants argued that the complaints alleged medical negligence for failure to protect plaintiffs’ decedents from COVID-19 because defendants did not properly administer and use personal protective equipment and that they are immune from liability for such claims pursuant to the PREP Act, which provides liability protections and pandemic and epidemic products and security countermeasures, including respiratory protective devices. Second, defendants asserted that they are federal officers because their response to the coronavirus pandemic was part of a national response effort to curb the spread of COVID-19 and was in compliance with federal guidelines, including guidelines imposed by Medicare in exchange for Medicare and Medicaid funds.

The district court granted plaintiffs’ motion to remand. As to PREP Act preemption, the district court concluded that “the PREP Act as amended is an emergency response to the pandemic. Its evident purpose is to embolden caregivers, permitting them to administer certain encouraged forms of care (listed COVID “countermeasures”) with the assurance that they will not face liability for having done so. Nothing in the Act suggests that it was intended to more broadly displace state-law causes of action for, e.g., malpractice or substandard care – even if proper care possibility would have entailed administration of such countermeasures.” Maglioli, 478 F. Supp. 3d at 529. As to federal officer removal, the district court held that “plaintiffs allege negligence stemming from the medical care they received while patients and residents at defendants’ facilities. Defendants do not contend that the purportedly negligent medical care administered was under the direct and detailed control of a federal agency or officer. Rather, defendants generally contend that there is a nexus between plaintiffs’ negligence claims and the infection control procedures they followed as part of the federal government’s nationwide COVID-19 response. This statement falls short of establishing that the federal government, either by command or comprehensive regulations, directed and controlled the specific conduct that caused plaintiffs’ injuries.” Maglioli, 478 F. Supp. 3d at 536. Defendants have appealed to the U.S. Court of Appeals for the Third Circuit.

Our amici curiae in support of the defendants-appellants in Maglioli are three New Jersey long-term health care facilities with heightened litigation risks arising out of the COVID-19 pandemic and with interest in a broad construction of the PREP Act that requires potential lawsuits filed against them relating to their administration or use of covered countermeasures to prevent, mitigate, treat, diagnose or limit the harm from COVID-19 or the related virus to be heard in federal court. Other amici joining us in urging the Third Circuit to reverse are DRI, Inc. and Hackensack Meridian Health, the largest comprehensive health care network in New Jersey. The consumer advocacy organization Public Citizen has filed an amicus brief in support of plaintiffs-appellees.

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