580 F.Supp.3d 1012
D. Kan.2022Background
- Decedent Rosaire Pirotte lived at Brighton Garden of Prairie Village and died of COVID-19 in May 2020 after an outbreak at the facility.
- Plaintiff (son and special administrator) sued in Kansas state court for wrongful death, survival/lost chance, and negligence, alleging numerous failures to prevent, detect, and respond to COVID-19.
- Defendants removed to federal court asserting federal-question jurisdiction based on complete preemption by the PREP Act (immunity and the Covered Countermeasure Process Fund).
- Defendants also moved to dismiss; plaintiff moved to remand.
- The court analyzed (1) whether the PREP Act’s federal remedial scheme completely preempts the state claims and (2) whether an embedded federal question under Grable exists.
- The court remanded the case to state court and dismissed defendants’ motion to dismiss for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PREP Act completely preempts Pirotte’s state-law claims | Pirotte: claims are ordinary negligence/inaction and do not fall within PREP Act remedies | Defendants: PREP Act supplants state law because claims "relate to" administration/use of covered countermeasures | No — PREP Act does not completely preempt these claims; plaintiffs allege inaction lacking the required causal link to a covered countermeasure administration elsewhere |
| Whether plaintiff’s allegations fall within PREP Act remedies (willful misconduct or Covered Countermeasure Fund) | Pirotte: no allegation of willful misconduct or of injuries "directly caused" by administration/use of a covered countermeasure | Defendants: petition implicates PPE, screening, tests and thus the manner of using/administering countermeasures | No — Petition alleges failures to prevent/spread (inaction); no willful-misconduct claim and no allegation that injury was directly caused by administration/use of a covered countermeasure or by non-administration tied to allocation to others |
| Whether HHS Advisory Opinion / PREP declaration require deference so PREP Act provides jurisdiction | Pirotte: HHS Advisory Opinion and declaration do not control jurisdictional question; advisory guidance not dispositive | Defendants: rely on HHS Advisory Opinion and PREP Act Declarations to show PREP Act is a complete-preemption statute | Court declines to give dispositive deference to HHS Advisory Opinion for jurisdictional scope; follows district and circuit precedent treating PREP Act defenses cautiously |
| Whether an embedded federal question under Grable provides jurisdiction | Pirotte: PREP Act is a defense, not an element of state claims, so no necessarily raised federal issue | Defendants: PREP Act presents substantial federal interest and federal issues are embedded | No — Grable fails: PREP Act is not necessarily raised and is a federal defense; permitting jurisdiction would upset federal-state balance |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (federal courts are courts of limited jurisdiction)
- Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (complete-preemption framework and congressional-intent inquiry)
- Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003) (well-pleaded complaint rule and complete preemption doctrine)
- Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (when federal statute can displace state law claims)
- Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1 (1983) (state claim within scope of federal cause of action arises under federal law)
- Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. 1996) (definition and rarity of complete preemption)
- Dutcher v. Matheson, 733 F.3d 980 (10th Cir. 2013) (complete preemption is rare; two-step inquiry)
- Maglioli v. All. HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (PREP Act does not automatically preempt routine negligence/wrongful-death claims)
- Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005) (embedded federal-question test)
- Gunn v. Minton, 568 U.S. 251 (2013) (Grable’s four-part test explained)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (defendant may not base removal on federal defenses or facts not pleaded by plaintiff)