Eaton v. Big Blue Healthcare, Inc., 480 F.Supp.3d 1184

Plaintiff Brian Eaton (surviving son) sued Riverbend Post‑Acute Rehabilitation and related defendants in Kansas state court for wrongful death after Brenda Eaton contracted and died of COVID‑19 while a resident.
Complaint alleges facility failures: symptomatic staff worked, lack of PPE, failure to isolate, continued resident congregation, inadequate infection‑control training and response, leading to an outbreak and decedent’s death.
Defendants removed to federal court, invoking the PREP Act and arguing its immunity/complete‑preemption provisions create a federal question; Eaton moved to remand.
The PREP Act (with an HHS COVID‑19 declaration) grants broad immunity for claims "caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure," but applies specifically to the administration/use of certain drugs, biologics, devices, vaccines, and related programs; limited exceptions (willful misconduct; compensation fund) exist.
The central legal question was whether Eaton’s negligence allegations are causally connected to the administration or use of a covered countermeasure such that the PREP Act applies and completely preempts state law, thereby supporting federal jurisdiction.
Court held PREP Act inapplicable because the complaint alleges inaction (failure to employ precautions) rather than harms caused by the administration/use of a covered countermeasure; remanded the case to state court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Federal‑question jurisdiction under well‑pleaded complaint	Complaint asserts only state negligence claims; no federal question	PREP Act completely preempts state claims, so removal is proper	Complaint pleads state law claims; no federal question absent complete preemption
Scope of PREP Act — action vs inaction	PREP Act protects administration/use of countermeasures, not failure to use them	PREP Act applies broadly to activities/management related to countermeasures and to claims "arising out of" use	PREP Act covers administration/use (action); does not plainly reach non‑administration/inaction alleged here
Causation to covered countermeasure use	No allegation that death was caused by administration/use of any covered countermeasure	Allegations could imply use of tests/devices/PPE and thus arise from countermeasure activities	No factual allegations tie decedent’s death to administration/use; defendants may not rely on facts not pleaded
Procedural — surreply and hearing	Opposed surreply; no need for hearing	Sought leave to file surreply and requested hearing	Court granted leave to file surreply, denied hearing request

Dutcher v. Matheson, 733 F.3d 980 (10th Cir. 2013) (removing party bears burden; well‑pleaded complaint rule presumption against federal jurisdiction)
Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (explains doctrine of complete preemption and its rarity)
Caterpillar Inc. v. Williams, 482 U.S. 386 (Sup. Ct.) (plaintiff may avoid federal jurisdiction by pleading only state claims)
Beneficial Nat. Bank v. Anderson, 539 U.S. 1 (Sup. Ct.) (inquiry focuses on whether Congress intended an exclusive federal cause of action)
Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (distinguishes ordinary preemption from complete preemption)
Geddes v. American Airlines, 321 F.3d 1349 (11th Cir. 2003) (preemption as a defense does not necessarily create removal jurisdiction)
Hansen v. Harper Excavating, Inc., 641 F.3d 1216 (10th Cir. 2011) (ordinary preemption is a defense and does not make a case removable)
Christensen v. BNSF Ry. Co., 242 F. Supp. 3d 1186 (D. Kan. 2017) (reminder that removing party must demonstrate federal jurisdiction)