Judge: Frank M. Tavelman, Case: 23BBCV00088, Date: 2024-11-08 Tentative Ruling

Case Number: 23BBCV00088    Hearing Date: November 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

MP:     Steven Taback M.D., Erik Sitker M.D., Providence Saint Joseph Medical Center, and Vanessa Nicole Ybarra, R.N. (Defendants)

RP:     Mary Baghikian & the Estate of Sarkis Baghikian (Plaintiff)

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

Mary Baghikian & the Estate of Sarkis Baghikian (Plaintiffs) bring this action against Providence Health & Services, Providence Saint Joseph Medical Center (collectively Providence), Jarod Michael Keller, M.D., Jilbert Issai, M.D., Dr. Steven Taback (Taback), Dr. Erik Sitker (Sitker), Dr. Conrad, Dr. Harris, Vanessa Nicole Ybarra (Ybarra), R.N., Gilead Sciences, Inc., Veklury, and Genentech Inc. Plaintiffs allege that Sarkis Baghikian (Decedent) was a patient of Providence who was treated for Covid-19. Plaintiffs allege that Decedent was given medication for Covid-19 and intubated against his will, resulting in his eventual death.

Plaintiffs initial Complaint stated 14 causes of action for (1) Wrongful Death- Negligence, (2) Wrongful Death-Negligent Supervision, (3) Intentional Infliction of Emotional Distress, (4) Negligent Infliction of Emotional Distress, (5) False Imprisonment, (6) Discrimination, (7) Strict Products Liability, (8) Products Liability-Failure to Warn, and (9) Premises Liability.

On June 14, 2024, the Court sustained a demurrer by Taback and Sitker to each of these causes of action. The Court found that each cause of action was preempted by the immunity conferred upon Taback and Sitker under the Federal Public Readiness and Emergency Preparedness Act (“PREP Act”) (42 U.S.C. §§ 247d-6d, 247d-6e.) The Court granted leave to amend insofar as it found it was not impossible that Plaintiff could allege facts showing his claims fell outside the PREP Act.

Plaintiffs’ FAC now states only two causes of action for (1) Wrongful Death Sounding in Constructive Fraud and (2) Survival Action Sounding in Violation of the Elder Abuse and Dependent Adult Civil Protection Act. The causes of action are stated against all Defendants.

Taback, Sitker, Providence, and Ybarra (hereinafter Moving Defendants) all now demur to each cause of action in the Complaint. Moving Defendants challenge each cause of action on the ground the Court does not have jurisdiction over Plaintiffs’ claims because they are barred by the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 U.S.C. §§ 247d-6d, 247d-6e.) Plaintiffs oppose and Moving Defendants reply.

ANALYSIS:

I.                    LEGAL STANDARDS

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) require that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Tredway Decl. ¶¶ 2-3; Munoz Decl. ¶¶ 4-6.)

Grounds for Demurrer

As a preliminary matter the Court notes that a demurrer under C.C.P. § 430.10(a) may be used to secure dismissal of a superior court action based on federal law preemption. (Ball v. GTE Mobilnet of Cal. (2000) 81 Cal.App.4^th 529, 535.) This may be shown by, among other things, the “explicit language of a federal statute.” (Id.)

Discussion

The Court previously sustained the demurrer of Taback and Sitker as to each cause of action in the Complaint. The Court found that Plaintiffs’ claims were preempted as a matter of Federal Law, evidenced by the clear language of the PREP Act. While the Court will not retread its prior reasoning, it will provide a summary below for the sake of clarity.

The Federal Public Readiness and Emergency Preparedness Act (“PREP Act”) (42 U.S.C. §§ 247d-6d, 247d-6e.) was signed into law in 2005 and, among other things, provides immunity from liability for claims of loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to disease, threats, and conditions. PREP Act immunity applies to any “covered person” with respect to all “claims for loss” caused by, arising out of, relating to, or resulting from the “administration” or the “use” of a “covered countermeasure” if a declaration has been issued with respect to that countermeasure. (42 U.S.C. § 247d-6d(a)(1).)

42 USC § 247d-6d(d)(1) provides that “the sole exception to the immunity from suit and liability of covered persons ... shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct ... by such covered person.” Such an action “shall be filed and maintained only in the United States District Court for the District of Columbia.” (42 U.S.C. § 247d-6d(e)(1).

In response to COVID-19, the Secretary of Health and Human Services for the United States issued a declaration that provided PREP Act immunity for individuals and entities responding to Covid-19. (85 Fed. Reg. 15198, Mar. 17, 2020.)

The Court has already held that Plaintiffs allegations indicate (1) that Taback and Sitker are “covered persons” within the meaning of the PREP ACT, (2) that the administration of Remdesivir and Dexamethasone as a treatment for Covid-19 were “covered countermeasures”, and (3) that Plaintiffs’ claims all arise out of or relate to the use of this covered countermeasure. All of the allegations which permitted the Court to makes its previous ruling remain present in the FAC.  

The Court notes that Plaintiffs do not contest that Moving Defendants are “covered persons” within the meaning of the PREP Act. A “covered person” includes “a qualified person who prescribed, administered, or dispensed such countermeasure” or its agent or employee. (42 U.S.C. § 247d-6d(i)(2).) A “covered countermeasure” includes a “qualified pandemic or epidemic product” which is further defined as a product manufactured or developed to “limit the harm such pandemic or epidemic might otherwise cause.” (42 U.S.C. § 247(i)(1) and (7).) Here, Plaintiffs specifically allege that Moving Defendants either prescribed, administered, or dispensed Remdesivir and Dexamethasone to Decedent. 42 U.S.C. § 247d-6d(i)(2) is clear that a “covered person” includes both persons and entities which are manufacturers, distributors, program planners, or qualified persons administering a covered counter measure.

Given the above, the question presented by these subsequent demurrers is whether the additional allegations of Plaintiffs’ FAC are sufficient to establish that their claims do not arise from or relate to Decedent being given Remdesivir and Dexamethasone. The Court finds that Plaintiffs’ amended allegations do not achieve this.

The following is a list of relevant factual allegations which carry over from the Complaint to the FAC:

·         Plaintiffs maintain that Taback and Sitker were licensed physicians providing medical care at Providence Saint Joseph Medical Center (PSJMC). (FAC ¶ 7.)

·         Plaintiff maintains the allegation that the doctors at Providence, referred to in the aggregate, diagnosed Decedent with pneumonia. (FAC ¶ 38.)

·         Plaintiffs maintain the allegation that Decedent was admitted to Providence as a Covid-19 patient. (FAC ¶ 39.)

·         Plaintiffs maintain the allegation that the nurses and doctors ignored Decedent for hours at a time after learning he was unvaccinated. (FAC ¶¶ 45, 49, and 120.)

·         Plaintiffs maintain that Decedent received treatment with Remdesivir and Dexamethasone with no explanation of the side effects. (FAC ¶ 46.)

·         Plaintiffs maintain that Decedent was intubated without his consent or the consent of his family. (FAC ¶¶ 55-61.)

The majority of Plaintiffs’ additional allegation on amendment revolve around alternative treatments which could have been administered to Decedent. Plaintiffs allege at length that Remdesivir and Dexamethasone were abnormally dangerous, and Providence pushed its doctors/staff to administer them despite the risks. (FAC ¶¶ 22-24.) Plaintiffs allege that Providence did this in order to obtain Federal subsidies. (Id.) This allegation has no bearing on whether the administration of Remdesivir and Dexamethasone were a covered counter measure under the PREP Act. To the extent that Plaintiffs believe any of the Defendants willfully ignored the risks associated with Remdesivir and Dexamethasone in treating Decedent, the PREP Act is clear that such claims must be brought in the United States District Court for the District of Columbia. (42 U.S.C. § 247d-6d(e)(1).

The same can be said for Plaintiffs’ additional allegations that Decedent could have more effectively been treated with Ivermectin and Hydroxychloroquine. (FAC ¶¶ 25-30.)  Plaintiffs’ allegation is still that Moving Defendants employed a less effective method to treat Decedent, rather than ones that Plaintiffs claim would have produced a better result. This claim is clearly related to the employment of a covered counter measure under the PREP Act.

This pattern continues with Plaintiffs’ additional allegations as to the refusal of Taback and Sitker to disclose the risks of Remdesivir and Dexamethasone. Plaintiffs now allege that Taback and Sitker specifically refrained from informing Decedent about treatment with Remdesivir and Dexamethasone (1) in order to avoid being ostracized or jeopardize their working relationship with Providence, (2) because they believed that they had immunity from liability under the PREP Act if Remdesivir was used, and (3) to avoid Decedent declining treatment if alternative treatments were disclosed. (FAC ¶ 31.) In short, Plaintiffs allege that Taback and Sitker deliberately jeopardized Decedent’s health to preserve their own status and secure financial gain. These allegations are both (1) related to the administration of covered countermeasures, and (2) indicative of a claim for willful misconduct which must be brought in the D.C. District Court.

If anything, Plaintiffs’ additional allegations have only further drawn their claims into the purview of the PREP Act. Under California law, “willful misconduct” is any intentional act of an unreasonable character undertaken in disregard of a known risk or a risk so obvious that the actor must be taken to have been aware of it, and so great as to make the harm highly probable. (Cleveland v. U.S. (N.D. Cal. 2008) 546 F.Supp.2d 732, 771.) Whereas Plaintiffs’ previous allegations as to the administration of Remdesivir and Dexamethasone could have sounded in negligence, their FAC clearly alleges intentional conduct rising above the level of mere negligence. Plaintiffs cannot hereafter retract these allegations lest they run afoul of the sham pleading doctrine. Regardless of whether they sound in negligence or willful misconduct, the PREP Act is clear that claims related to a covered counter measure cannot proceed in state court. Plaintiffs FAC has added no allegations of conduct by Moving Defendants which do not arise from or relate to a covered countermeasure.

In opposition, Plaintiffs argue that PREP Act immunity cannot apply because Decedent was not a “covered individual” under 42 USC 247d-6e. The argument misunderstands the PREP Act. The only citation to the statute that Plaintiffs provide is to 42 USC 247d-6e(c) which outlines the requirement for the Secretary of Health and Human Services to properly inform treatment providers as to the voluntary nature of the program. This section has nothing to do with the person receiving treatment. No provision of 42 USC 247d-6e supports Plaintiffs’ argument that Moving Defendants are not immune because Decedent did not opt in to the PREP Act.

Plaintiffs’ argument that this Court should follow the ruling in Eaton v Big Blue Healthcare, Inc. 480 F.Supp.3d 1184, 1193-94 is unpersuasive. Eaton found that the PREP Act was inapplicable to its plaintiff’s case because the allegations involved inaction rather than action. In Eaton, the plaintiff brought suit concerning the death of their mother who was a resident in a nursing home alleging the defendants caused her death by failing to implement protocols to prevent Covid- 19. The Eaton plaintiff did not make any allegations that her mother died because of the use of any covered countermeasures. Thus, the PREP Act was not applicable. Here, Plaintiffs make explicit allegations that Decedent died as a result of Moving Defendants’ use of Remdesivir and Dexamethasone.

As concerns Plaintiffs’ argument that Moving Defendants cannot claim immunity under Cal. Gov. Code § 8659, the Court fails to see the relevance of this argument. The PREP Act is clear that its immunity is preemptive of state law. Nor does Taback and Sitker’s failure to prove the acted in “response to a government request” under Cal. Gov. Code § 8659 have anything to do with the applicability of the PREP Act.

In conclusion, Plaintiffs’ additional allegations upon amendment are insufficient to avoid the application of immunity under the PREP Act. Plaintiffs repackaging of their claims as being for Constructive Fraud and Elder Abuse does not change the nature of the facts that they allege. It is clear from the FAC that any claims Plaintiffs have against Moving Defendants arise out of or relate to the allegedly intentional administration of a covered countermeasure under the PREP Act. The PREP Act is clear that this Court lacks jurisdiction over those claims.

Accordingly, the demurrers of Steven Taback M.D., Erik Sitker M.D., Providence Saint Joseph Medical Center, and Vanessa Nicole Ybarra, R.N. are SUSTAINED as to each cause of action without leave to amend.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the Court’s records.

ORDER

Steven Taback M.D., Erik Sitker M.D., Providence Saint Joseph Medical Center, and Vanessa Nicole Ybarra, R.N.’s Demurrers came on regularly for hearing on November 8, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRERS TO EACH CAUSE OF ACTION ARE SUSTAINED WITHOUT LEAVE TO AMEND.

DEFENDANT PROVIDENCE TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  November 8, 2024                            _______________________________

                                                                        F.M. Tavelman, Judge

                                                                        Superior Court of California

County of Los Angeles