MEDICAL MALPRACTICE-IMMUNITY-PREEMPTION-PUBLIC READINESS AND EMERGENCY PREPAREDNESS ACT

June 28th, 2022 by Rieders Travis in Medical Malpractice

Battista v. Broomall Operating Co. LP, 2022 U.S. Dist. LEXIS 97332 (E.D. Pa. June 1, 2022) (McHugh, J.)  These actions, consolidated by consent for pretrial purposes only, arise out of injuries and fatalities related to the COVID-19 pandemic. Defendants—a nursing home, its employees, and related entities—removed the cases to federal court following a strategy apparently being followed by nursing homes across the country, arguing that all the state law claims are preempted. They further argue that federal jurisdiction exists on two grounds: the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §247d-6d, and diversity of citizenship. In a series of consolidated cases with nearly identical facts, Hereford v. Broomall Operating Co. LP, No. 213922, 2021 U.S. Dist. LEXIS 235559, 2021 WL 5834384 (E.D. Pa. Dec. 9, 2021), I recently held that there was neither preemption nor federal question jurisdiction pursuant to the Third Circuit’s decision in Estate of Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393, 404 (3d Cir. 2021). I further concluded that individual professionals participating in the residents’ care were properly joined, thereby defeating diversity of citizenship. 2021 U.S. Dist. LEXIS 235559, [WL] at *3. Later decisions have not called into question the validity of my reasoning in Hereford, and I rely on the analysis there as the basis for remanding these cases as well. In 2020, Congress passed the Public Readiness and Emergency Preparedness Act (PREP), 42 U.S.C. §247d-6(d). According to Defendants, the Act expressly and completely preempts common law tort claims brought under state law and creates federal jurisdiction. In Maglioli, the Third Circuit rejected the proposition that the PREP Act generally preempted state tort law or gave rise to federal jurisdiction, and held that federal jurisdiction exists only as to one statutorily created claim for willful misconduct that sets a bar for recovery significantly higher than common law. 16 F.4th at 400- 401. Moreover, the Court of Appeals rejected the argument that the cases were subject to removal on the basis of the federal officer removal statute (28 U.S.C. § 1442(a)(1)), because the nursing home and its employees were not “acting under” the United States or its officers. Id. at 404-06. For the reasons previously set forth in Hereford, Maglioli‘s reasoning remains controlling here. Moreover, Plaintiffs’ amended complaints in these cases do not allege “willful misconduct” as defined by the statute. As a result, there is no federal question jurisdiction. Defendants continue to argue that these individuals are unnecessary for Plaintiffs’ recovery and were therefore [*8] named only for the purpose of defeating diversity. This ignores important binding precedent. As noted in Hereford, the Supreme Court has long held that “in a removal proceeding the motive of a plaintiff joining defendants is immaterial, provided there is in good faith a cause of action against those joined.” 2021 U.S. Dist. LEXIS 235559, [WL] at *3, (citing Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 189, 52 S. Ct. 84, 76 L. Ed. 233 (1931)), and fraudulent joinder “should not be invoked lightly” because the “removal statutes are strictly construed against removal.” 2021 U.S. Dist. LEXIS 235559, [WL] at *4 (citing In re Briscoe, 448 F.3d 201, 215-16 (3d. Cir. 2006)). Moreover, the Third Circuit has held that even a specific intent to avoid federal jurisdiction does not matter to the fraudulent joinder analysis so long as there is a good faith legal basis upon which to assert a claim against the defendants. Abels v. State Farm Fire and Casualty Co., 770 F.2d 26, 32 (3d. Cir. 1985)).6 And contrary to Broomall’s core contention, it is both sensible and proper to join individual professionals in cases involving allegations of inadequate medical care. Defendants’ Motions to Dismiss will be denied, and Plaintiffs’ Motions to Remand will be granted.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]