COVID Nursing Home Lawsuits Can Move Forward In NJ State Courts

NEW JERSEY — Class action lawsuits first filed against Andover Subacute nursing home facilities in state court on behalf of families who lost loved ones to COVID-19, can proceed there, according to a recent precedential opinion issued by the U.S. Court of Appeals for the Third Circuit.

Originally filed in the Superior Court against Andover Subacute and Rehabilitation I and II, facilities now named Limecrest Subacute and Rehabilitation Center and Woodland Behavioral and Nursing Center, the class action suits were filed by Daniel P. Marchese of the Marchese Law Firm in Newton, on behalf of families and the estates of those who died in the Andover facilities during the height of the COVID-19 pandemic in April 2020.

The Andover Subacute facilities were thrust into the international spotlight at that time, after news broke of 17 bodies discovered in a makeshift morgue in the former Subacute II facility, now called Woodland Behavioral and Nursing Center.

The class action suits were initially removed successfully from the state courts to the federal courts, for attorneys on behalf of the long-term care facilities.

Legal counsel for the Andover Subacute facilities argued the cases had federal jurisdiction under “PREP” the Public Readiness and Emergency Preparedness Act, defenses they asserted shielded their clients with defenses on the basis of "federal-officer removal," with the homes claiming because of the intense regulation they face, they were "acting under" federal officers; as well as their other defenses, "complete preemption of state law and the presences of a substantial federal issue," according to the court opinion, dated Oct. 20.

They were, however, sent back to the state courts, though the nursing homes appealed the District Court decision, the Third Circuit calling the wrongful death suits against the nursing homes, “garden-variety state-law claims,” concluding, “so state court is where these cases belong.”

“Federal courts have limited jurisdiction,” the Third Circuit opinion read. “We may decide only cases or controversies that the Constitution and Congress say we may decide.”

The Third Circuit disagreed that though “nursing homes are subject to intense regulation, that alone does not mean they were ‘acting under’ federal officers.”

“The nursing homes are private parties, not federal actors,” the court wrote.

"The estates have not invoked the power of the federal courts and Congress has not given us power to take this case from state court," the opinion read. "So we will affirm the District Court’s order dismissing the cases for lack of jurisdiction.”

In March 2020 after a public health emergency was declared for COVID-19, PREP was invoked by the Secretary of the Department of Health and Human Services, which has a scope of immunity that, the court wrote in its opinion, “protects certain covered individuals - such as pharmacies and drug manufacturers - from lawsuits during a public-health emergency.”

Since it was invoked in March 2020, the court stated that PREP was amended seven times; and the court added that an exception to the statutory immunity is that PREP “provides an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.”

The court opinion states the two class action suits on behalf of the estates and families names negligence, wrongful death and ordinary negligence, among their claims, the deaths attributed to “a direct result of [the nursing homes’] failures to take measures to protect them at the facilities from the deadly COVID-19 virus and/or medical malpractice,” the court document stated.

According to the Third Circuit, “Nearly every federal district court to confront these cases has dismissed for lack of jurisdiction and remanded to the state court.”

“We appear to be the first circuit court to decide these issues,” they also wrote.

Questions or comments about this story? Have a news tip? Contact me at: jennifer.miller@patch.com.