523 F.Supp.3d 1288
D. Kan.2021Background
- Decedent Barbara Bell resided at Brighton Gardens assisted‑living; facility experienced a COVID‑19 outbreak in April 2020; Bell tested positive May 1, 2020 and died May 20, 2020.
- Bell’s daughter, Roberta Anson, sued defendants in Kansas state court (June 8, 2020) alleging wrongful death, lost chance, and negligence for failures in infection control, PPE, staffing, isolation, notification, and monitoring.
- Defendants removed to federal court asserting the PREP Act completely preempts the state claims and therefore federal question jurisdiction exists.
- Central legal question: whether the PREP Act’s federal remedies (willful‑misconduct cause of action and the Covered Countermeasure Process Fund for injuries “directly caused by the administration or use of a covered countermeasure”) wholly displace plaintiff’s state claims.
- The court considered the HHS December 3, 2020 Amendment to the PREP Declaration (which narrows circumstances where non‑administration/in‑action can relate to administration) and recent district court decisions construing PREP Act scope.
- Holding: PREP Act does not completely preempt these inaction‑based negligence claims; the court lacks federal subject‑matter jurisdiction and remanded the case (and defendants’ declaratory counterclaim) to state court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PREP Act completely preempts Anson’s state claims so removal is proper | Anson: claims allege ordinary state negligence/wrongful death, not federal causes of action; PREP Act remedies don’t swallow these claims | Defs: PREP Act immunity/remedies cover claims tied to PPE, testing, infection‑control decisions and thus completely preempt state law | Held: No complete preemption; plaintiff’s well‑pleaded complaint does not plead a PREP Act cause of action, so federal question §1331 not established |
| Whether plaintiff’s allegations constitute “administration or use” of a covered countermeasure (causal nexus) | Anson: alleges failures to act (inaction/non‑use), not that any injury was caused by administration or use of a countermeasure | Defs: Petition references PPE, diagnostics, infection‑control plans—these are covered countermeasures and the allegations implicate their use/administration | Held: Claims are principally inaction/omission and lack an allegation that the injury was directly caused by administration/use; causal connection required by PREP Act is absent |
| Effect of HHS Dec. 3, 2020 Amendment (allocation/inaction scenarios) | Anson: Amendment does not convert ordinary nonfeasance claims into PREP Act claims absent specific facts showing limited countermeasures prioritized between individuals | Defs: Amendment and HHS advisory mean non‑administration can fall within PREP Act when allocation/prioritization exists | Held: Amendment permits a narrow class of inaction claims (where non‑administration to one individual is in order to administer to another), but Petition pleads none of those facts; Amendment does not bring this case into PREP Act scope |
| Whether defendants’ declaratory counterclaim invoking PREP Act may remain in federal court | Anson: Counterclaim arises only as a defense to state claims; without independent federal question, declaratory jurisdiction is improper | Defs: Counterclaim presents an actual federal controversy over PREP Act immunity justifying federal jurisdiction | Held: Counterclaim does not present an independent §1331 basis because the federal issue would be only a defense to state claims; it is remanded with the case (and motions are dismissed for lack of jurisdiction) |
Key Cases Cited
- Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (well‑pleaded complaint rule and complete‑preemption exception)
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) (complete preemption explained and limited)
- Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983) (when federal cause of action completely preempts state law, claim "arises under" federal law)
- Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908) (plaintiff’s complaint governs federal‑question jurisdiction)
- Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (framework for complete preemption analysis)
- Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (inquiry into congressional intent for complete preemption)
- Dutcher v. Matheson, 733 F.3d 980 (10th Cir. 2013) (complete preemption is rare)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (defenses do not supply federal question jurisdiction)
- Gunn v. Minton, 568 U.S. 251 (2013) (limits on embedded federal‑question jurisdiction)
- Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) (Declaratory Judgment Act does not itself confer federal jurisdiction)
- Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996) (look to anticipated claims of declaratory‑defendant to assess federal question)
- State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979 (10th Cir. 1994) (discretionary factors in entertaining declaratory judgments)
- Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 770 F.3d 944 (10th Cir. 2014) (narrow boundaries for substantial federal‑question jurisdiction)