In four consolidated cases, entities and individuals associated with a New Jersey nursing home (Alliance) appealed the orders of three judges of the United States District Court for the District of New Jersey who remanded to state court personal injury actions brought by the legal representatives of nursing home residents who died from COVID-19.
While living in a nursing home operated by Alliance, Alexander Olin, Elizabeth Iannuzzelli, John Fiore, and John Watters contracted COVID-19 and each died. The decedents’ estates (Estates) sued Alliance in New Jersey state court. The Estates alleged state statutory violations, medical malpractice, negligence, and gross negligence based on Alliance’s failure to properly use and sanitize personal protective equipment and provide adequate medical care. Alliance sought to remove the actions to federal court. After the Estates successfully moved to remand the cases to state court, Alliance timely appealed.
The United States Court of Appeals for the Third Circuit stated in its February 16, 2024 Opinion that the PREP Act provides an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct, and that willful misconduct is a separate cause of action from negligence. Willful misconduct is construed as establishing a standard for liability that is more stringent than a standard of negligence in any form or recklessness. “Like the District Court, we cannot infer from vague and imprecise references to “intentional” or “conscious” conduct that the Estates’ complaints alleged that Alliance had acted “intentionally to achieve a wrongful purpose” or “knowingly without legal or factual justification.” 42 U.S.C. § 247d-6d(c)(1)(A)(i), (ii). Therefore, the Estates could not have asserted a willful misconduct claim under the PREP Act. So the statute does not preempt their state law claims and cannot confer jurisdiction in this case.”
The federal appellate court further stated, “Under the federal officer removal statute, federal courts have jurisdiction over civil actions directed at “[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 . . . for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1). In Maglioli, we rejected the contention that nursing homes act under federal officers merely by complying with federal rules and regulations. See 16 F.4th at 404. We instead reasoned that nursing homes must be involved in “an effort to assist, or to help carry out, the duties or tasks of [a] federal superior.” Id. at 404–05 (quoting Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007)). Attempting to distinguish these cases from Maglioli, Alliance argues that the Estates allege “facts demonstrating it was the federal government’s obligation to address the spread of COVID-19 in nursing homes,” specifically that “[t]he National Guard and the New Jersey Department of Health assisted in Andover’s operations to address the COVID-19 outbreak at Andover.” Alliance Br. 63 (citing App. 69–70, 73–74, 125–26); see also Alliance Consol. Br. 71–72. But this allegation no more shows that Alliance has been “delegated federal authority” or
“provide[s] a service that the federal government would otherwise provide” than the arguments it proffered in Maglioli. 16 F.4th at 405. So we lack jurisdiction under the federal officer removal statute for the same reason we articulated in Maglioli.”
If you or a loved one may have a COVID-19 claim against a nursing home in New Jersey or in another U.S. state, you should promptly contact a New Jersey COVID-19 nursing home lawyer, or a COVID-19 nursing home lawyer in your state, who may investigate your COVID-19 nursing home claim for you and represent you and/or your loved one in a COVID-19 nursing home case, if appropriate.
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