Walsh v. SSC Westchester Operating Co.

592 F.Supp.3d 737

Eileen B. WALSH, as Independent Administrator for the Estate of Rita Saunders, Plaintiff,

v.SSC WESTCHESTER OPERATING COMPANY LLC, a Foreign Limited Liability Company d/b/a Westchester Health and Rehabilitation Center, Defendant.andLonda Claybon, as Independent Administrator for the Estate of Carrie Claybon, Plaintiff,

v.SSC Westchester Operating Company LLC, a Foreign Limited Liability Company d/b/a Westchester Health and Rehabilitation Center, Defendant.

No. 20 CV 4505

No. 20 CV 4507

United States District Court, N.D. Illinois, Eastern Division.

Signed March 22, 2022

Michael Frank Bonamarte, IV, Steven Michael Levin, Bryan Anthony Ruggiero, Daniel A. Goldfaden, Levin & Perconti, Chicago, IL, Robert S. Peck, Center for Constitutional Litigation, PC, Washington, DC, for Plaintiff in 20 CV 4505.

Terrence S. Carden, III, Alexandra Elizabeth Weiss, Ruwan C. Perera, Carden & Tracy, Chicago, IL, for Defendant in 20 CV 4505.

Bryan Anthony Ruggiero, Michael Frank Bonamarte, IV, Daniel A. Goldfaden, Levin & Perconti, Chicago, IL, Robert S. Peck, Center for Constitutional Litigation, PC, Washington, DC, for Plaintiff in 20 CV 4507.

Terrence S. Carden, III, Alexandra Elizabeth Weiss, Rebecca Coen Barnard, Carden & Tracy, LLC, Chicago, IL, for Defendant in 20 CV 4507.

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District Judge

Rita Saunders and Carrie Claybon, residents of a nursing home owned by defendant SSC Westchester Operating Company, contracted COVID-19 in March 2020. Both died. Plaintiff Eileen Walsh, Saunders's sister, sues Westchester on behalf of Saunders's estate. Plaintiff Londa Claybon, Carrie Claybon's daughter, sues Westchester on behalf of her mother's estate. Plaintiffs allege that Westchester violated the Illinois Nursing Home Care Act by, among other things, knowingly exposing its residents to nursing staff who had tested positive for, or were displaying symptoms of, COVID-19, and failing to implement policies to mitigate the spread of COVID-19 and treat COVID-19 patients. They bring negligence and willful-and-wanton conduct claims. Defendant filed a motion for judgment on the pleadings, arguing that willful-and-wanton conduct is not a cause of action under the Act, and that Westchester is immunized from suit under the Illinois governor's executive order and the federal Public Readiness and Emergency Preparedness Act. The motion for judgment on the pleadings is denied.

I. Legal Standards

A party can move for judgment on the pleadings at any time after the pleadings are closed, so long as it's early enough not to delay trial. Fed. R. Civ. P. 12(c). The standard is nearly identical to that for a motion to dismiss; the "only difference ... is timing." See Federated Mut. Ins. Co. v. Coyle Mech. Supply Co. , 983 F.3d 307, 313 (7th Cir. 2020). I read all facts in the light most favorable to the nonmoving party, but I'm not required to accept facts in the complaint that "undermine plaintiff's claim or to assign any weight to unsupported conclusions of law." N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend , 163 F.3d 449, 452 (7th Cir. 1998) (citation omitted). I am limited to the pleadings, Fed. R. Civ. P. 12(c), which include the complaint, answer, and "written instruments attached as exhibits." Fed. R. Civ. P. 10(c). Here, that means I can consider the affidavit and exhibits attached to Westchester's answer. [37-1]. See N. Ind. Gun & Outdoor Shows, Inc. , 163 F.3d at 452–53. To succeed on the motion, the moving party must "demonstrate that there are no material issues of fact to be resolved." Federated Mut. Ins. Co. , 983 F.3d at 313. I cannot allow motions for judgment on the pleadings to "deprive the [plaintiff] of the opportunity to make its case." Id.

II. Facts

From January to March 2020, the public began to learn about the COVID-19 pandemic. [1-1] ¶¶ 38–72.¹ Illinois's first case was reported on January 24. Id. ¶ 44. On March 13, the Centers for Medicare & Medicaid Services issued guidance on infection control and prevention in nursing homes. Id. ¶ 55. The guidance directed homes to isolate potentially infected residents; screen all staff for symptoms at the beginning of each shift and, for those who had symptoms, direct them to self-isolate at home; identify and restrict staff who worked at multiple facilities; and obtain supplies as soon as possible. Id. On March 17, the Illinois Department of Public Health issued updated guidance for nursing homes; it recommended, among other things, that nursing homes screen residents and staff for fever and respiratory systems. Id. ¶ 59.

That same day, the Secretary of the U.S. Department of Health and Human Services issued regulations pursuant to his power under the Public Readiness and Emergency Preparedness Act. 85 Fed. Reg. 15,198. The regulations provided partial civil immunity to health care facilities whose administration of certain COVID-19 countermeasures caused injury or death. Id. at 15,198 –200. On April 1, the Illinois governor issued an executive order that provides partial civil immunity to nursing homes for deaths and injuries that occur while the nursing homes are "rendering assistance" in connection with COVID-19. [13-5].² Plaintiffs sued under the Illinois Nursing Home Care Act, alleging that Westchester's negligence and willful-and-wanton conduct caused decedents’ deaths.

[1-1] at 21–50; Claybon [1-1] at 20–50. Plaintiffs allege that, throughout this period, Westchester failed to implement any policies or procedures to mitigate the spread of COVID-19. Id.³

Westchester moved to dismiss both suits (as well as a third one not at issue here⁴ ). [13]; Claybon [14]. Westchester's motions were denied, [24]; Claybon [27], and both cases were consolidated for pretrial discovery. [27], [28]; Claybon [32], [33], [34], [35]. Westchester filed an answer to the complaint, [34]; Claybon [37], and moved for judgment on the pleadings, [48]; Claybon [56]. The parties’ briefs in Walsh and Claybon are materially identical. Compare [48], [51], [52] with Claybon [56], [59], [60].

III. Analysis

At this stage, my legal analysis is limited to the undisputed facts. Westchester says plaintiffs admit that Westchester implemented COVID-19 policies, specifically ([52] at 2–3; Claybon [60] at 2–3):

securing the supply area where personal protective equipment [ ] was kept; establishing a sign-out system for PPE; educating staff regarding the PPE supply system; securing N-95 respirators; conducting staff and resident training with respect to monitoring for and treating COVID-19, Westchester's PPE supply process, and properly donning and doffing PPE; securing the perimeter of the facility; conducting weekly audits and compliance rounds regarding properly donning and doffing PPE; and establishing stations for tissues, masks, wastebaskets, and hand sanitizer.

Westchester says it was "taking necessary steps to prepare to treat patients with COVID-19" by contracting with SavaSeniorCare Consulting, LLC (one of Westchester's parent companies, according to plaintiffs, [1] ¶¶ 7–9; Claybon [1] ¶¶ 7–9) to develop and implement these policies and procedures. [48] at 6–7; Claybon [56] at 6–7. Because these facts are undisputed, Westchester says it is entitled to immunity under the Executive Order and PREP Act.⁵

But the crux of plaintiffs’ argument is that all of those facts are disputed.⁶ Because immunity hinges on whether Westchester did what it claims, it would be inappropriate to decide immunity at this stage, plaintiffs say. [51] at 3; Claybon [59] at 3. I agree. Defendants can't make the disputed undisputed simply by saying so.

"To the extent Defendants want to argue that the PREP Act [and the Executive Order] appl[y], they must do so based on the complaint as it is—not as Defendants would prefer it to be." Eaton v. Big Blue Healthcare, Inc. , 480 F. Supp. 3d 1184, 1194 (D. Kan. 2020).

While plaintiffs dispute that Westchester implemented any policies, they concede that Westchester had policies in place. See [51] at 3; Claybon [59] at 3. But plaintiffs also appear to dispute whether Westchester itself issued those policies, or whether Westchester simply adopted the policies after its parent company, SavaSeniorCare, issued them. Id. In sum, I assume only that Westchester had policies; whether they were issued by Westchester itself, let alone implemented, is still disputed.

A. Willful-and-Wanton Conduct

I rejected defendant's argument that there is no cause of action for willful-and-wanton conduct, [24] at 14–15, and defendant points to no relevant change in the law. I reject defendant's argument again for the same reasons as before and Count II stays.

B. Immunity Under Executive Order 2020-19

Under the Illinois Emergency Management Act, "[a]ny private person, firm or corporation ... who renders assistance or advice at the request of the State ... during an actual or impending disaster, shall not be civilly liable for causing the death of, or injury to, any person ... except in the event of willful misconduct." 20 ILCS 3305/21(c). The Act gives the governor the power to decide when there is a disaster. 20 ILCS 3305/7. Once he's issued a disaster proclamation, he has the power to "make, amend, and rescind all lawful necessary orders, rules, and regulations" to carry out the Act's provisions. 20 ILCS 3305/6(c)(1). On March 9, 2020, the governor issued a disaster proclamation. [13-2]; Claybon [14-2]. (A disaster proclamation can be in effect for up to 30 days, 20 ILCS 3305/7, but there is no limit on how many successive proclamations the governor can issue. Fox Fire Tavern, LLC v. Pritzker , 2020 IL App (2d) 200623 ¶ 26, 443 Ill.Dec. 538, 161 N.E.3d 1190. Since his first proclamation in March, the governor has issued another twenty-six proclamations. See Illinois.gov, Exec. & Admin. Ords. , https://www.illinois.gov/government/executive-orders.html (last accessed March 18, 2022)).

On April 1, 2020, the governor issued Executive Order 2020-19, [13-5]; Claybon [14-5...