480 F.Supp.3d 1196
D. Kan.2020Background
- Plaintiff Regina Brown (surviving daughter) sued Riverbend Post-Acute Rehabilitation and related operators after Joyce Ann Brown contracted COVID-19 at the facility and died, alleging state-law negligence for failures in infection control (e.g., allowing symptomatic staff to work, lack of PPE, failure to isolate, inadequate staffing/training).
- Defendants removed to federal court, asserting federal-question jurisdiction based on the PREP Act and that the Act completely preempts state-law claims.
- Plaintiff moved to remand, arguing the complaint alleges inaction (failure to protect) rather than any harmful administration or use of covered countermeasures, so the PREP Act does not apply.
- The PREP Act (as applied via the HHS COVID-19 Declaration) provides immunity for claims causally connected to the administration or use of covered countermeasures (drugs, biologics, devices, vaccines, certain PPE), with narrow exceptions and a federal compensation fund.
- The court held the PREP Act covers affirmative administration/use of countermeasures, not inaction, and requires a causal connection between the injury and administration/use; Defendants failed to show the complaint pleads such a connection.
- Court granted remand to state court, allowed Defendants’ surreply, and denied their request for a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal jurisdiction exists via PREP Act complete preemption | Brown: complaint pleads state-law negligence only; PREP Act does not apply | Defendants: PREP Act immunizes covered persons and completely preempts state claims, creating federal jurisdiction | Held: No federal jurisdiction; PREP Act inapplicable to pleaded claims; remand warranted |
| Scope of PREP Act — does it cover inaction (failure to use/administer) | PREP Act protects those who act (use/administer); does not address non-use/inaction | PREP Act is broad; covers claims "arising out of, relating to, or resulting from" administration or use; facility operations implicate countermeasures | Held: PREP Act applies to administration/use, not mere inaction; inaction claims fall outside its scope |
| Causation requirement — must injury be causally connected to administration/use of countermeasure? | Brown: complaint contains no allegation that death was caused by administration/use of any countermeasure | Defendants: allegations about lack of PPE, diagnostics, or other interventions could implicate countermeasures used in facility | Held: PREP Act requires causal connection; defendants failed to show the complaint pleads such a causal link |
| Burden and procedural posture — may defendant rely on facts not pleaded to establish PREP applicability? | Brown: well-pleaded complaint rule controls; defendant cannot rely on facts not alleged to justify removal | Defendants: removal justified because PREP Act provides exclusive federal remedy and immunity | Held: Defendant bears burden to show federal jurisdiction from the complaint; cannot premise removal on assumed facts; removal denied |
Key Cases Cited
- Dutcher v. Matheson, 733 F.3d 980 (10th Cir. 2013) (defendant bears burden to establish federal jurisdiction on removal)
- Devon Energy Production Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (complete preemption is a narrow exception to the well-pleaded complaint rule)
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) (focus inquiry on whether Congress intended a federal cause of action to be exclusive)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (plaintiff may avoid federal jurisdiction by omitting federal claims from complaint)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (statutory interpretation begins with plain and unambiguous meaning)
- Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (complete preemption substitutes a federal cause of action for a state cause of action)
- Hansen v. Harper Excavating, Inc., 641 F.3d 1216 (10th Cir. 2011) (ordinary preemption is an affirmative defense and does not by itself support removal)