Judge: Ronald F. Frank, Case: 24TRCV00246, Date: 2024-07-31 Tentative Ruling
Case Number: 24TRCV00246 Hearing Date: July 31, 2024 Dept: 8
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HEARING DATE: July 31, 2024¿
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CASE NUMBER: 24TRCV00246
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CASE NAME: Laderra Von Turner-Sweed v. Marjan Chegounchi, M.D., et
al.
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MOVING PARTY: Defendant,
Marjan Chegounchi, M.D.
RESPONDING PARTY: Plaintiff, Laderra
Von Turner-Sweed
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TRIAL DATE: Not
Set.
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MOTION:¿ Defendant, Marjan
Chegounchi, M.D.’s Demurrer
Tentative Rulings: SUSTAINED
with 20 days leave to amend.
I. BACKGROUND¿¿
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A. Factual¿¿
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On January
24, 2024, Plaintiff, Laderra Von Turner-Sweed (“Plaintiff”) filed a complaint
against Defendants, Marjan Chegounchi, M.D., and DOES 1 through 25. The
complaint alleges one cause of action for: (1) “Wrongful Death Sounding in
Violation of Civil Code section 1573.” The complaint is based on Plaintiff’s
allegation that her late husband was the unfortunate victim of a fraudulent scheme by hospitals and
physicians to suppress information about low risk and highly effective
treatment, and instead push Remdesivir, on an alleged ineffective and high-risk
COVID-19 treatment “protocol” because it provided them with financial and legal
incentives. (Complaint, ¶ 6.) Plaintiff contends that Duane Sweed (Plaintiff’s
husband) was a healthy sixty-six-year-old who faced a less than 1% chance of
dying from COVID-19. (Complaint, ¶ 8.) Plaintiff alleges that Duane fell victim
to Defendants’ fraudulent scheme when he presented himself to the hospital
emergency department with shortness of breath which he had developed within
that past week, symptoms consistent with a bacterial infection and sepsis
rather than an active SARS-CoV-2 viral infection (COVID-19). (Complaint, ¶ 9.)
Plaintiff contends that Duane’s physicians concealed his alternative diagnosis
and low risk and highly effective treatment, and their plan to treat him for
COVID-19 with Remdesivir put the defendants’ interests ahead of Duane’s.
(Complaint, ¶ 10.) Plaintiff asserts that had the low risk and highly effective
treatment options not been concealed, Duane would have experienced a better
outcome and not died on January 25, 2022. (Complaint, ¶ 11.)
B. Procedural¿¿
On July 1, 2024, Defendant Marjan
Chegounchi, M.D. filed a Demurrer to Plaintiff’s complaint. On July 16, 2024,
Plaintiff filed an opposition brief. On July 24, 2024, Defendant Chegounchi filed
a reply brief.
II. ANALYSIS
A.
Legal
Standard
A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack or from matters outside the pleading that are judicially
noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a
demurrer, the complaint need only allege facts sufficient to state a cause of
action; each evidentiary fact that might eventually form part of the
plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of
testing the sufficiency of the cause of action, the demurrer admits the truth
of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions,
deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713.)¿¿¿¿
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A
pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., §
430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label
the parties and claims renders the complaint so confusing defendant cannot tell
what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition
Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for
uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th
612, 616.)
B. Discussion
i.
Meet and Confer
Code of Civil
Procedure section 430.41, subdivision (a) states that, before filing a
demurrer, the moving party must engage in a specified meet and confer process
with the party who filed the pleading at issue for the purpose of determining
whether an agreement can be reached as to the filing of an amended pleading
that would resolve the objections to be raised in the demurrer/motion to
strike. “[T]he demurring party shall meet and confer in person or by
telephone with the party who filed the pleading that is subject to demurrer
for the purpose of determining whether an agreement can be reached that would
resolve the objections to be raised in the demurrer. If an amended
complaint…is filed, the responding party shall meet and confer again with the
party who filed the amended pleading before a demurrer to the amended
pleading.” (emphasis added.) (Code Civ. Proc. § 430.41(a).) A declaration
setting forth such meet and confer efforts must accompany the demurrer. (Code Civ.
Proc. § 430.41(a)(3).)
Defendants
counsel, Gabriel M. Irwin filed a declaration (“Irwin Decl.”) noting that prior
to the service and filing of the demurrer, he met and conferred with
Plaintiff’s counsel regarding the allegations which ultimately form the basis
of the complaint and Defendant’s perceived legal deficiencies with the same.
(Irwin Decl., ¶ 3.) Irwin contends that he and Plaintiff’s counsel met and
conferred about his position that the allegation which form the basis of this
action fail to adequately state a cause of action against his client for
Wrongful Death sounding in Constructive Fraud. (Irwin Decl., ¶ 4.) Irwin
further notes that the parties’ counsels met and conferred regarding Irwin’s
position that the entirety of Plaintiff’s claims are barred by the Federal
Public Readiness and Emergency Preparedness Act. (Irwin Decl., ¶ 4.)
Based on the
above, this Court finds that Defendant attempted to meet and confer in good
faith prior to the filing of this demurrer.
ii.
Immunity under the PREP Act
First,
Defendant argues that Plaintiff’s entire complaint is barred by the Federal
Public Readiness and Emergency Preparedness Act (“PREP Act”). By
passing the PREP Act in 2005, Congress plainly provided immunity under both
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 the Health and Human Services (HHS)
Secretary delineates the activity in a declaration. (42 U.S.C. §§ 247d-6d(a)
& 247-6d(b).) This immunity applies to liability under both Federal and
State law. (Id., § 247d-6d(a).)
The
PREP Act protects “Covered Persons,” a term which includes “a qualified person
who prescribed, administered, or dispensed such countermeasure[.]” (42 U.S.C. §
247d-6d(i)(2)(B)(iv).) It defines a “qualified person” as “a licensed health
professional or other individual authorized to prescribe, administer, or
dispense Covered Countermeasures under the law of the state in which the
Covered Countermeasure was prescribed, administered, or dispensed[.]” (Id.,
§ 247d-6d(i)(8).) The statute defines a “Covered Countermeasure” as a
“qualified pandemic or epidemic product,” which itself is defined to include a
drug designed to diagnose, mitigate, prevent, treat, or cure a pandemic or
epidemic. (Id., § 247d-6d(i)(1)(A) & § 247d-6d(i)(7).) The
declaration by the Secretary of the Department of Health and Human Services
established that the PREP Act applies to COVID-19. (Decl. PREP Act Med.
Countermeasures Against COVID-19, 85 Fed.Reg. 15198-01 (Mar. 17, 2020).)
Here,
Defendant argues that Chegounchi has immunity under the PREP Act. Indeed,
Chegounchi is identified in the moving papers as a “covered person” under the
PREP Act as Chegounchi is a licensed medical professional, authorized to use
and administer covered countermeasures in response to COVID-19.
In
opposition, Plaintiff argues that Defendant improperly mischaracterizes the
allegations in the complaint as medical negligence despite her pleading a cause
of action for constructive fraud. As such, Plaintiff argues the PREP Act does
not apply because medical negligence is not pleaded and no allegation has been
made that harm was caused by a covered countermeasure product. More
specifically, Plaintiff argues that a claim for a loss based on acts before a
covered countermeasure’s administration or use, or for a loss not caused in
fact by the covered countermeasure’s administration or use, i.e., an adverse
reaction, would not fall within the purview of the Act. Plaintiff relies on Eaton
v. Big Blue Healthcare, Inc. (D. Kansas 2020) 480 F.Supp.3d 1184 (“Eaton”)
to argue that the PREP Act applies to claims where the causation is from
affirmative conduct, not failure to administer treatment. In Eaton, the
United States District Court – District of Kansas ruled on a case where the
surviving son of assisted living facility resident brought a wrongful death
action in state court against the facility owners and operators, alleging that
they were negligent in failing to protect residents from COVID-19 when the
facility failed to follow certain policies, procedures, and guidelines
regarding COVID-19. (Eaton v. Big Blue Healthcare, Inc. (D. Kansas 2020)
480 F.Supp.3d 1184, 1187.) The Eaton Court held that the PREP Act’s
provisions regarding the administration or use of covered countermeasures are
not applicable to the allegations in that case, because those countermeasures
were not followed, and subsequently did not cause the alleged wrongful death. (Ibid.)
Plaintiff
attempts to draw an analogy to Eaton by arguing that her claims are not
based on Defendant Chegounchi’s administration of the Remdesivir drug, but that
her claims are based upon the fact Defendant Chegounchi failed to disclose
information about an alternative treatment because such a disclosure is alleged
to have violated hospital rules, triggered a statutory peer review
investigation, and exposed Defendant to ostracism, loss of hospital privileges,
and a medical board investigation. But Plaintiff’s argument on this point draws
the sharp distinction between Eaton and the case at bar. In Eaton,
the assisted living facility failed to follow the countermeasures
imposed by HHS. Whereas here, the treatment of COVID-19 with the drug
Remdesivir was an identified covered countermeasure. The language of the PREP
Act is clear: “Subject to the other provisions of this section, a covered
person shall be immune 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[.]” (42 U.S.C. § 247d-6d(a)(1).) Plaintiff’s own allegations
indicate that the immunity applies, despite the framing of the complaint as an
inaction of Defendant.
However,
this Court notes that the PREP Act contains a “sole exception to the immunity
from suit and liability of covered persons.” (42 U.S.C. § 247d-6d(d)(1).) The
exception is for “an exclusive Federal cause of action against a covered person
for death or serious physical injury proximately caused by willful misconduct.”
(Ibid.) This claim must be filed and maintained “only in the United
States District Court for the District of Columbia.” (Id., §
247d-6d(e)(1).) “Willful misconduct” is defined in the PREP Act as “an act
or omission that is taken . . . [¶] (i) intentionally to achieve a wrongful
purpose; [¶] (ii) knowingly without legal or factual justification; and [¶]
(iii) in disregard of a known or obvious risk that is so great as to make it
highly probable that the harm will outweigh the benefit.” (42 U.S.C.A. §
247d-6d(c)(1)(A).) Plaintiff’s complaint arguably alleges willful
misconduct (e.g., the reference to the alleged verbal and/or written
information received by Dr. Chegounchi as to the financial incentive under the
federal CARES Act in the form of a 20% bonus on the entire hospital bill when a
patient was diagnosed with COVID-19 and given Remdesivir but not the standard
treatment (Complaint, ¶ 34)), however, it is not argued in the opposition nor
pleaded specifically in the complaint. Thus, the willful misconduct exception does
not apply to the complaint as currently pleaded.
Further,
even if willful misconduct was pled in the complaint, the statute makes clear
that these claims must be filed in the U.S. District Court for the District of
Columbia. While it is true that several courts have held that there is no
federal exclusivity as to state law claims under the PREP Act, these courts
have also held that the PREP Act does preempt willful misconduct claims:
“Subsection (d) is the only subsection that explicitly states that there shall
be an ‘exclusive Federal cause of action,’ limited to claims against ‘covered
persons’ for ‘willful misconduct,’ as the terms are defined in the Act. §
247d-6d(d) . . . The text of the statute shows that Congress intended a federal
claim only for willful misconduct claims and not claims for negligence and
recklessness. § 247d-6d(c)(1)(B). An administrative compensation fund, not an
exclusive federal cause of action, provides the only redress for claims brought
under the Act, other than those alleging ‘willful misconduct.’” (Saldana v.
Glenhaven Healthcare LLC, supra, 27 F.4th at 688.)
Hence,
even though Plaintiff’s allegations could constitute willful misconduct, this
claim cannot be maintained in this Court.
Based
on this fact, the Court’s tentative ruling is to SUSTAIN demurrer the demurrer with
20 days leave to amend.
Defendant is ordered to give
notice.
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