Judge: Shirley K. Watkins, Case: 21STCV16846, Date: 2023-04-17 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 21STCV16846    Hearing Date: April 17, 2023    Dept: T

[TENTATIVE] ORDER:  Defendants Normandie Wilshire Retirement Hotel, Inc. and Vandana Dhawan-Desai’s Motion for Judgment on the Pleadings is DENIED.

            Defendants Normandie Wilshire Retirement Hotel, Inc. and Vandana Dhawan-Desai’s Request for Judicial Notice is DENIED as to Exhibits 9, 17, and 20 and otherwise GRANTED but not as to any hearsay or facts in dispute.

            Plaintiffs Veronica Lopez and Gerardo Figueroa’s Request for Judicial Notice is GRANTED but not as to any hearsay or facts in dispute.

Introduction

            Defendants Normandie Wilshire Retirement Hotel, Inc., and Vandana Dhawan-Desai (collectively, Defendants) moved for judgment on the pleadings against Plaintiffs Veronica Lopez and Gerardo Figueroa (collectively, Plaintiffs) Complaint.  Plaintiffs are the personal legal representations and successor-in-interest of Plaintiff/Decedent Socorro Salazar de Figueroa (Decedent.) 

            Procedure

            The Court noted that both Parties’ briefs referenced the original Complaint.  The operative pleading is the First Amended Complaint (FAC) filed on November 5, 2021 and not the Complaint.  However, the reference to the original Complaint appeared to be a typographical error since the specific paragraph citations correlate to the FAC.  In the interest of judicial economy, the Court addressed the issues and cited to the FAC.

            Discussion 

Defendants argued an immunity defense under the Public Readiness and Emergency Preparedness (PREP) Act.  (42 U.S.C.A. secs. 247d-6d, 247d-6e.)  The PREP Act created immunity from liability for “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. sec. 247d-6d(a)(1).)  Application of the immunity hinges on whether Plaintiffs alleged a loss caused by administration or use of Covered Countermeasures.  The PREP Act defines a “covered countermeasure” to include “qualified pandemic or epidemic products,” as well as “drugs, biological products or devices authorized for investigational or emergency use,” or “a respiratory protective device” approved by NIOSH and determined to be a priority for use during a public health emergency. (42 U.S.C. sec. 247d-6d(i)(1) , (8).)  Defendants argued that Plaintiffs alleged that their loss was caused by three Covered Countermeasures: (1) personal protective equipment (PPE); (2) diagnostic devices; and (3) infection control program.  To support this contention, Defendants cited to FAC pars. 24-26, 39, and 41.  However, Defendants misconstrued the allegations of the FAC.  The allegations did not allege any administration or use of PPEs, diagnostic devices, or infection control program.  The allegations expressly alleged Defendants failure to prevent the spread of COVID-19 due to understaffing and a failure to institute an infection control program.  (FAC pars. 16-18.)  Plaintiff alleged that Defendants prohibited visiting hours which would show an infection control program, but Defendants did not create a care plan related to patients susceptibility to COVID-19 (i.e., COVID-19 detection, triage, isolation, monitoring, notification of physicians, and training of staff.) 

Defendants argued that the non-administration or non-use of Covered Countermeasures (i.e., inaction) is also basis for immunity.  (Exhibit 8 to RJN, May 19, 2020 Advisory Opinion of the Office of the General Counsel, Department of Health and Human Services, pg. 7, last full paragraph.)  However, the Court finds Plaintiffs’ citation to Federal case law interpreting the PREP Act’s immunity provision to be more persuasive over the General Counsel’s Advisory Opinion.  (Estate of Maglioli v. Andover Subacute Rehab. Ctr. I (D.N.J. 2020) 478 F. Supp. 3d 518, 521, aff'd sub nom. Maglioli v. All. HC Holdings LLC (3d Cir. 2021) 16 F.4th 393 & O'Neal v. CF Watsonville W. LLC (N.D. Cal. Feb. 11, 2022, No. 21-CV-08450-RS) 2022 WL 425557.)  As was the factual allegations made in in these two Federal cases, the instant case did not allege the administration or use of Covered Countermeasures but the case alleged a failure to take/implement countermeasures.  Due to Defendants’ alleged failure to implement countermeasures, Plaintiffs alleged that their Decedent received a sub-par quality of care from a skilled nursing facility.  The two Federal cases opined that claims of quality of care do not fall within the scope of the PREP Act.  Although not binding upon this Court, the Court finds persuasive the two Federal cases’ interpretation of the PREP Act over Defendants’ citation to the General Counsel’s Advisory Opinion. 

The Court further noted that the Parties argued over whether Decedent was harmed by denial of treatment due to prioritizing or allocation.  However, the issue is also not persuasive because there are no allegations in the FAC to show that Defendants’ administered or used Covered Countermeasures to other patients over Plaintiffs’ Decedent due to supply issues.  Any allegation of misallocation of countermeasures, if any is even alleged, would appear to be based upon the allegation of understaffing issues.  Defendants’ again misconstrue the allegations of the FAC. 

Defendants’ immunity defense is not persuasive and the claims alleged in the instant action are not within the scope of the PREP Act.

Defendants then argued that Plaintiffs failed to exhaust their administrative remedy under the PREP Act.  When immunity applies, an injured person or such a person's survivor must seek compensation through a regulatory program, 42 U.S.C. sec. 247d-6e, unless the injury occurs due to willful misconduct, 42 U.S.C. sec. 247d-6d(d)(1).  Any exceptions to immunity based on allegations of “willful misconduct” must be dismissed and re-filed in the United States District Court for the District of Columbia, which is designated as the exclusive jurisdiction over such claims under the PREP Act. (42 U.S.C. secs. 247d-6d(c)(4) and 247d-6d(e)(1), (5).)  Because the Court found that the instant action is not within the scope of the PREP Act and that the immunity provision in the PREP Act is inapplicable, Plaintiffs were not required to allege exhaustion of an administrative remedy under the PREP Act. 

Defendants’ secondary argument as to exhaustion of administrative remedies is also unpersuasive.

The motion for judgment on the pleadings is DENIED.