Barron v. Benchmark Senior Living, LLC

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Linda Barron, Individually and as Executrix of the Estates of Leo and Anna Barron v. Benchmark Senior Living, LLC

No. 22-cv-318-SE

Opinion No. 2023 DNH 013

United States District Court, D. New Hampshire

February 6, 2023

ORDER

Samantha D. Elliott, United States District Judge

Linda Barron brought claims in state court as the executrix of her parents' estates following their deaths due to COVID-19 at Greystone Farm at Salem, which was operated by defendant Benchmark Senior Living, LLC.^[1] Benchmark removed the case to this court and now moves to dismiss Barron's claims arguing that the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d et. seq., preempts or provides Benchmark with immunity from liability for Barron's claims. Doc. no. 4. Benchmark argues in the alternative that New Hampshire Revised Statute Annotated (“RSA”) 21-P:42a provides it with immunity from liability for Barron's claims. Barron objects and moves to remand the case to state court for lack of subject matter jurisdiction. Doc. no. 8. For the following reasons, the court denies both motions.

Background

Leo and Anna Barron, who were husband and wife, were admitted to Greystone Farm, an assisted living facility in Salem, New Hampshire, in 2018. They were residents of Greystone Farm in 2020 when the COVID-19 pandemic caused a public health emergency in New Hampshire and across the nation. In response to the pandemic, the Centers for Disease Control and Prevention (“CDC”) issued protocols to long-term care facilities, including Greystone Farm, requiring them to institute several practices to protect their residents from COVID-19. These practices included the use of personal protective equipment and specific disinfecting procedures and location requirements for the administration of aerosol-generating devices. In March 2020, Benchmark began issuing email bulletins to Greystone Farm residents and their families, assuring them that all providers at Greystone Farm were following the CDC's protocols.

The complaint alleges that despite these representations, Greystone Farm staff failed to follow the CDC's protocols. For example, according to the complaint, the care attendants and clinical staff at Greystone Farm who cared for the Barrons did not use personal protective equipment during their interaction with them. Staff also allegedly failed to disinfect Mr. Barron's nebulizer machine, removed the machine from his room, and administered his treatments in community areas in the facility contrary to the CDC protocols. They also allegedly allowed the Barrons and other residents to be in community areas without masks or other protective equipment and did not enforce or encourage social distancing protocols. In addition, Greystone Farm allegedly neglected to screen staff or vendors for COVID-19 when they entered the facility and did not adhere to social distancing protocols.^[2]

Both of the Barrons contracted COVID-19 at the facility. Leo Barron died on May 29, 2020, and Anna Barron died on May 31, 2020. According to their death certificates, both of their deaths were caused by pneumonia as a consequence of a COVID-19 infection.

As executrix of her parents' estates, Linda Barron brought suit in New Hampshire state court, alleging three claims against Benchmark: wrongful death (Count I); a violation of the New Hampshire Patients' Bill of Rights, RSA 151:21 et seq. (Count II); and violation of the New Hampshire Consumer Protection Act (“CPA”), RSA 358-A (Count III). Benchmark removed the case to this court, asserting both federal-question and diversity jurisdiction, and further that the federal officer removal statute, 28 U.S.C. § 1442, provides a basis for this court's jurisdiction.

Discussion

Barron moves to remand the case for lack of subject matter jurisdiction on the ground that her claims are not completely preempted by the PREP Act, which was the stated ground for federal question jurisdiction in the notice of removal,^[3] and that federal officer removal does not apply in this case. Benchmark moves to dismiss Barron's claims on the ground that the PREP Act defensively preempts the claims and that, even if not, Benchmark is immune from liability for her claims under the Act and New Hampshire law. Because the motion to remand raises a question as to this court's jurisdiction, the court addresses that motion first.

I. Motion to Remand

Barron's motion challenges Benchmark's removal on the basis of federal question jurisdiction and the federal officer removal statute. Benchmark, however, also asserted subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. See doc. no. 1 at 3. Barron did not challenge that basis for removal, either in her motion or in response to Benchmark's objection.

Diversity jurisdiction exists under § 1332 when “the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties.” Home Depot U.S.A., Inc. v. Jackson, 139 S.Ct. 1743, 1746 (2019). When, as here, the defendant is a limited liability company, it is a citizen of every state where its members are citizens. Disaster Solutions, LLC v. City of Santa Isabel, P.R., 21 F.4th 1, 5 (1st Cir. 2021). The jurisdictional amount alleged in the complaint is ordinarily the amount in controversy for the purposes of removal. 28 U.S.C. § 1446(c)(2). But if, as in this case, the complaint does not claim a specific amount of damages due to state practice, removal based on the amount asserted in the notice of removal is proper when the plaintiff does not contest the defendant's assertion and the court does not question it. Dart Cherokee Basin Operation Co., LLC v. Owens, 574 U.S. 81, 87-88 (2014); see 28 U.S.C. § 1446(c)(2)(A)(ii).

Based on the allegations in the complaint, Linda Barron is a citizen of New Hampshire, as were both of her parents. In its notice of removal, Benchmark asserts that it is a citizen of Massachusetts because all of its members are citizens of Massachusetts. Consistent with New Hampshire practice, Barron does not specify in her complaint the precise amount of a money sought. Benchmark, however, asserts in the notice of removal that the damages in the case, if proven, will exceed $75,000. Barron does not dispute these jurisdictional facts and the court does not question them.

Based on the above, Benchmark has shown that the court has subject matter jurisdiction based on diversity of citizenship. Therefore, the court denies Barron's motion to remand.

II. Motion to Dismiss

Benchmark moves to dismiss Barron's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that it is entitled to immunity under the PREP Act, 42 U.S.C. § 247d-6d(a)(1), that Barron's claims are preempted by the PREP Act, Id. at (b)(8), and that Benchmark is immune from Barron's claims under New Hampshire law, RSA 21-P:42a. When considering a motion to dismiss under Rule 12(b)(6), the court accepts the factual allegations in the complaint as true and draws reasonable inferences in the plaintiff's favor. Cheng v. Neumann, 51 F.4th 438, 443 (1st Cir. 2022).

A. PREP Act

Congress enacted the PREP Act in 2005 in response to the Severe Acute Respiratory Syndrome (SARS) outbreak of 2003. Krol v Cottages at Garden Grove, No. 21-CV-1038 (NAM/ATB), 2022 WL 3585766, at *4 (N.D.N.Y. Aug. 22, 2022). Its purpose was to “encourage the expeditious development and deployment of medical countermeasures during a public health emergency by allowing the HHS [Health and Human Services] Secretary to limit legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments, and vaccines.” Cannon v. Watermark Retirement Communities, Inc., 45 F.4th 137, 139 (D.C. Cir. 2022) (quotation omitted). “The Act provides ‘covered persons' with ‘immunity from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration' by the Secretary under the PREP Act ‘has been issued with respect to such countermeasure.'” Id. (quoting § 247d-6d(a)(1)). A covered person includes a “qualified person who prescribed, administered, or dispensed such countermeasure . . . .” § 247d-6d(i)(2)(B).

PREP Act immunity does not leave potential claimants without recourse for claims relating to the use of covered countermeasures. As an alternative remedy when immunity applies, the Act established the Covered Countermeasure Process Fund. § 247d-6e(a). For such claims, the Secretary of HHS has the sole authority to administer and provide compensation from that Fund, and the Act specifies the procedure for compensation. Id. at (b)(1). In addition, the PREP Act provides an exception to the immunity when death or serious injury is caused by willful misconduct. § 247d-6d(d)(1). But, plaintiffs asserting claims alleging willful misconduct must file an action in the United States District Court for the District of Columbia. § 247d-6d(e)(1).

1. COVID-19

In March 2020, the Secretary of HHS issued a declaration under the PREP Act (the “COVID-19 Declaration”) that triggered “‘immunity for activities related to medical countermeasures against COVID-19.'” Saldana v. Glenhaven Health Care LLC, 27 F.4th 679, 687 (9th Cir. 2022) (quoting Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed.Reg. 15,198 2020 WL 1245193 (Mar. 17, 2020)). The COVID-19 Declaration defined covered countermeasures as “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19 ....