Federal Court Denies Remand and Grants Dismissal Based upon PREP Act

Written by: Sandra Mekita Cianflone, Esq. and Laura Hall Cartner, Esq.

On February 10, 2021, James V. Selna in the Central District of California denied Plaintiffs’ Motion to Remand and granted Defendants’ Motion to Dismiss in Garcia v. Welltower OpCo Group LLC, et al. He found that the PREP Act applied to Defendants and completely preempted Plaintiffs’ claims.

Briefly, by way of background, Plaintiff was a resident at Defendants’ facility from 2017 through the COVID-19 pandemic, passing away on July 3, 2020. The crux of Plaintiff’s claim was that Defendants “failed to implement appropriate infection control measures or follow local or public health guidelines in preparing for and preventing COVID-19 spread” and as a result plaintiff was caused to contract COVID-19 and pass away from the same.

The primary basis of his conclusion has been what Defendants across the country have been arguing: that the PREP Act applies to nursing facilities by virtue of their classification as “program planners” administering and using covered countermeasures, such as PPE and that the PREP Act is a complete preemption statute. In support of his conclusions, he relies upon the Fourth Amendment to the PREP Act Declaration for COVID-19 Countermeasures and Advisory Opinion 20-01 from January 8, 2021. Of note, in the context of senior living and long term care specifically, Judge Selna states that, “[t]aken as true, all Plaintiffs’ FAC discloses are possible unsuccessful attempts at compliance with federal or state guidelines – something which the PREP Act, the Declaration, and the January 8, 2021 Advisory Opinion cover.

Judge Selna noted that only two other decisions had been issued following the January 8, 2021 Advisory Opinion, Fernande Lyons et al. v. Cucumber Holdings, LLC, et al, No. CV2010571JFWJPRX, 2021 WL 364640 (C.D. Cal. Feb. 3, 2021) and Marc Dupervil, as the Proposed Adm’r of the Estate of Frederic Dupervil, Deceased, Plaintiff, v. Alliance Health Operations, LCC, d/b/a Linden Center for Nursing and Rehabilitation, & John and Jane Does 1-10, Defendants., No. 20CV4042PKCPK, 2021 WL 355137 (E.D.N.Y. Feb. 2, 2021). Of these decisions, he noted that in Lyons it was not clear that they considered the January 8, 2021 Advisory Opinion and in Dupervil, the Court found that the Advisory Opinion lacked the power to persuade as it did not state any legal authority for its proposition that the PREP Act was a complete preemption statute.

Although we have always contended that the PREP Act applies to these types of cases, up until this point, many of the Courts deferred to prior decisions that failed to differentiate prior PREP Act Declarations and take into consideration the new authorities that HHS issued, including those in December 2020 and January 2021. We believe this will be the first of many decisions that will be coming down in our favor in the future.

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