A Pennsylvania assisted living community cannot use a federal immunity protection argument to move a COVID-19 wrongful death lawsuit to federal court, an appellate court ruled Tuesday.
A three-judge panel from the 3rd Circuit US Court of Appeals affirmed an earlier ruling from the US District Court for the Eastern District of Pennsylvania, sending the case back to state court.
The estate of Clara Troilo, a former resident of Rose Tree Place in Media, PA, filed suit against Executive Director Cynthia Evans, operator Watermark Retirement Communities and Watermark Chief Operating Officer Karen Mlawsky after Troilo died on April 29, 2020, after contracting COVID-19.
The claim alleged that the community did not alert residents and families of positive COVID-19 cases in the building. The lawsuit further claimed that the community tried to “conceal, hide, mask and cover-up the deadly presence of COVID-19” in the building through “false, deceptive, fraudulent and deceitful statements” that gave families a false sense of security.
The Circuit Court opinion stated that the lawsuit does not allege that the community ever administered a countermeasure to Troilo. At most, the lawsuit contends, the community administered countermeasures in the form of COVID-19 tests to others and then misrepresented the results of those tests to families.
The court further ruled that the misrepresentation claim wasn’t equivalent to a willful misconduct claim for purposes of establishing exclusive federal jurisdiction under the Public Readiness and Emergency Preparedness Act, which provides immunity from claims related to the administration of covered countermeasures by certain covered persons during the COVID-19 public health emergency.
“A complaint does not state a claim under the PREP Act merely because its allegations involve willful misconduct related to COVID-19,” the panel wrote. “Because Troilo did not, herself, receive a countermeasure, it is clear under the PREP Act’s plain text that her estate cannot state a claim for willful misconduct.”
Watermark Retirement Communities told McKnight’s Senior Living that it had no information to share on the case at this time.
A case history
Rose Tree Place and Watermark had argued that the case should be moved to federal court due to protections provided under the PREP Act.
Assisted living providers that used countermeasures — including COVID-19 tests — made available through emergency use authorizations could receive liability protection under the PREP Act, preempting state law liability claims. Several cases winding their way through the courts, however, are challenging those protections.
The US District Court for the Eastern District of Pennsylvania remanded the Triolo case back to the Philadelphia Court of Common Pleas in February, finding no basis for federal jurisdiction over the case. Rose Tree Place and Watermark appealed the decision to the 3rd Circuit Court of Appeals and asked the district court to stay its order until the appeal was resolved. The district court denied the motion to stay in August, allowing the case to proceed in state court.
The ruling in the Troilo case comes on the heels of one in a case in Virginia in which a judge ruled that a wrongful death lawsuit alleging that an assisted living community did not comply with COVID-19 protocols could move forward because, he said, assisted living communities are not healthcare providers and therefore are not entitled to immunity from such legal action.
