UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Linda Barron, Individually and as Executrix of the Estates of Leo and Anna Barron
v. Case No. 22-cv-318-SE Opinion No. 2023 DNH 013 Benchmark Senior Living, LLC
O R D E R
Linda Barron brought claims in state court as the executrix
of her parents’ estates following their deaths due to COVID-19
at Greystone Farm at Salem, which was operated by defendant
Benchmark Senior Living, LLC.1 Benchmark removed the case to this
court and now moves to dismiss Barron’s claims, arguing that the
Public Readiness and Emergency Preparedness Act (“PREP Act”), 42
U.S.C. §§ 247d, et. seq., preempts or provides Benchmark with
immunity from liability for Barron’s claims. Doc. no. 4.
Benchmark argues in the alternative that New Hampshire Revised
Statute Annotated (“RSA”) 21-P:42a provides it with immunity
from liability for Barron’s claims. Barron objects and moves to
1 The caption of Barron’s complaint states that she brings her claims individually and as the executrix of her parents’ estate. The nature of her claims and the allegations in the complaint, however, do not appear to support any claims on Barron’s own behalf. Because neither party addresses the issue and it is not material to this order, the court does not address it again herein. remand the case to state court for lack of subject matter
jurisdiction. Doc. no. 8. For the following reasons, the court
denies both motions.
Background
Leo and Anna Barron, who were husband and wife, were
admitted to Greystone Farm, an assisted living facility in
Salem, New Hampshire, in 2018. They were residents of Greystone
Farm in 2020 when the COVID-19 pandemic caused a public health
emergency in New Hampshire and across the nation. In response to
the pandemic, the Centers for Disease Control and Prevention
(“CDC”) issued protocols to long-term care facilities, including
Greystone Farm, requiring them to institute several practices to
protect their residents from COVID-19. These practices included
the use of personal protective equipment and specific
disinfecting procedures and location requirements for the
administration of aerosol-generating devices. In March 2020,
Benchmark began issuing email bulletins to Greystone Farm
residents and their families, assuring them that all providers
at Greystone Farm were following the CDC’s protocols.
The complaint alleges that despite these representations,
Greystone Farm staff failed to follow the CDC’s protocols. For
example, according to the complaint, the care attendants and
2 clinical staff at Greystone Farm who cared for the Barrons did
not use personal protective equipment during their interaction
with them. Staff also allegedly failed to disinfect Mr. Barron’s
nebulizer machine, removed the machine from his room, and
administered his treatments in community areas in the facility
contrary to the CDC protocols. They also allegedly allowed the
Barrons and other residents to be in community areas without
masks or other protective equipment and did not enforce or
encourage social distancing protocols. In addition, Greystone
Farm allegedly neglected to screen staff or vendors for COVID-19
when they entered the facility and did not adhere to social
distancing protocols.2
Both of the Barrons contracted COVID-19 at the facility.
Leo Barron died on May 29, 2020, and Anna Barron died on May 31,
2020. According to their death certificates, both of their
deaths were caused by pneumonia as a consequence of a COVID-19
infection.
As executrix of her parents’ estates, Linda Barron brought
suit in New Hampshire state court, alleging three claims against
Benchmark: wrongful death (Count I); a violation of the New
Hampshire Patients’ Bill of Rights, RSA 151:21 et seq. (Count
2 For ease of reference, the court will refer to Greystone Farm as “Benchmark” for the remainder of this order.
3 II); and violation of the New Hampshire Consumer Protection Act
(“CPA”), RSA 358-A (Count III). Benchmark removed the case to
this court, asserting both federal-question and diversity
jurisdiction, and further that the federal officer removal
statute, 28 U.S.C. § 1442, provides a basis for this court’s
jurisdiction.
Discussion
Barron moves to remand the case for lack of subject matter
jurisdiction on the ground that her claims are not completely
preempted by the PREP Act, which was the stated ground for
federal question jurisdiction in the notice of removal,3 and that
federal officer removal does not apply in this case. Benchmark
moves to dismiss Barron’s claims on the ground that the PREP Act
defensively preempts the claims and that, even if not, Benchmark
is immune from liability for her claims under the Act and New
3 Complete preemption creates a right of removal on the basis of federal question jurisdiction even when a plaintiff alleges only state law claims if “federal statutory language demonstrates that Congress has manifested a clear intent that claims not only be preempted under the federal law, but also that they be removable.” Palkow v. CSX Transp., Inc., 431 F.3d 543, 553 (6th Cir. 2005). As discussed further below, Benchmark argues in its motion to dismiss that the court should dismiss Barron’s claims on the grounds of “defensive” preemption. The two preemption doctrines are distinct, and the court notes the difference here for clarity.
4 Hampshire law. Because the motion to remand raises a question as
to this court’s jurisdiction, the court addresses that motion
first.
I. Motion to Remand
Barron’s motion challenges Benchmark’s removal on the basis
of federal question jurisdiction and the federal officer removal
statute. Benchmark, however, also asserted subject matter
jurisdiction based on diversity of citizenship under 28 U.S.C. §
1332. See doc. no. 1 at 3. Barron did not challenge that basis
for removal, either in her motion or in response to Benchmark’s
objection.
Diversity jurisdiction exists under § 1332 when “the amount
in controversy exceeds $75,000 and there is diversity of
citizenship among the parties.” Home Depot U.S.A., Inc. v.
Jackson, 139 S. Ct. 1743, 1746 (2019). When, as here, the
defendant is a limited liability company, it is a citizen of
every state where its members are citizens. Disaster Solutions,
LLC v. City of Santa Isabel, P.R., 21 F.4th 1, 5 (1st Cir.
2021). The jurisdictional amount alleged in the complaint is
ordinarily the amount in controversy for the purposes of
removal. 28 U.S.C. § 1446(c)(2). But if, as in this case, the
complaint does not claim a specific amount of damages due to
5 state practice, removal based on the amount asserted in the
notice of removal is proper when the plaintiff does not contest
the defendant’s assertion and the court does not question it.
Dart Cherokee Basin Operation Co., LLC v. Owens, 574 U.S. 81,
87-88 (2014); see 28 U.S.C. § 1446(c)(2)(A)(ii).
Based on the allegations in the complaint, Linda Barron is
a citizen of New Hampshire, as were both of her parents. In its
notice of removal, Benchmark asserts that it is a citizen of
Massachusetts because all of its members are citizens of
Massachusetts. Consistent with New Hampshire practice, Barron
does not specify in her complaint the precise amount of a money
sought. Benchmark, however, asserts in the notice of removal
that the damages in the case, if proven, will exceed $75,000.
Barron does not dispute these jurisdictional facts and the court
does not question them.
Based on the above, Benchmark has shown that the court has
subject matter jurisdiction based on diversity of citizenship.
Therefore, the court denies Barron’s motion to remand.
II. Motion to Dismiss
Benchmark moves to dismiss Barron’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the grounds that it
is entitled to immunity under the PREP Act, 42 U.S.C. § 247d-
6 6d(a)(1), that Barron’s claims are preempted by the PREP Act,
id. at (b)(8), and that Benchmark is immune from Barron’s claims
under New Hampshire law, RSA 21-P:42a. When considering a motion
to dismiss under Rule 12(b)(6), the court accepts the factual
allegations in the complaint as true and draws reasonable
inferences in the plaintiff’s favor. Cheng v. Neumann, 51 F.4th
438, 443 (1st Cir. 2022).
A. PREP Act
Congress enacted the PREP Act in 2005 in response to the
Severe Acute Respiratory Syndrome (SARS) outbreak of 2003. Krol
v. Cottages at Garden Grove, No. 21-CV-1038 (NAM/ATB), 2022 WL
3585766, at *4 (N.D.N.Y. Aug. 22, 2022). Its purpose was to
“encourage the expeditious development and deployment of medical
countermeasures during a public health emergency by allowing the
HHS [Health and Human Services] Secretary to limit legal
liability for losses relating to the administration of medical
countermeasures such as diagnostics, treatments, and vaccines.”
Cannon v. Watermark Retirement Communities, Inc., 45 F.4th 137,
139 (D.C. Cir. 2022) (quotation omitted). “The Act provides
‘covered persons’ with ‘immunity from suit and liability under
Federal and State law with respect to all claims for loss caused
by, arising out of, relating to or resulting from the
7 administration to or the use by an individual of a covered
countermeasure if a declaration’ by the Secretary under the PREP
Act ‘has been issued with respect to such countermeasure.’” Id.
(quoting § 247d-6d(a)(1)). A covered person includes a
“qualified person who prescribed, administered, or dispensed
such countermeasure . . . .” § 247d-6d(i)(2)(B).
PREP Act immunity does not leave potential claimants
without recourse for claims relating to the use of covered
countermeasures. As an alternative remedy when immunity applies,
the Act established the Covered Countermeasure Process Fund. §
247d-6e(a). For such claims, the Secretary of HHS has the sole
authority to administer and provide compensation from that Fund,
and the Act specifies the procedure for compensation. Id. at
(b)(1). In addition, the PREP Act provides an exception to the
immunity when death or serious injury is caused by willful
misconduct. § 247d-6d(d)(1). But, plaintiffs asserting claims
alleging willful misconduct must file an action in the United
States District Court for the District of Columbia. § 247d-
6d(e)(1).
1. COVID-19
In March 2020, the Secretary of HHS issued a declaration
under the PREP Act (the “COVID-19 Declaration”) that triggered
8 “‘immunity for activities related to medical countermeasures
against COVID-19.’” Saldana v. Glenhaven Health Care LLC, 27
F.4th 679, 687 (9th Cir. 2022) (quoting Declaration Under the
Public Readiness and Emergency Preparedness Act for Medical
Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 2020 WL
1245193 (Mar. 17, 2020)). The COVID-19 Declaration defined
covered countermeasures as “any antiviral, any other drug, any
biologic, any diagnostic, any other device, or any vaccine, used
to treat, diagnose, cure, prevent, or mitigate COVID-19 . . . or
any device used in the administration of any such product, and
all components and constituent materials of any such product.”
85 Fed. Reg. 15198, 15202. Consistent with the PREP Act’s
language, the COVID-19 Declaration stated that immunity applies
to covered persons “with respect to administration or use of a
Covered Countermeasure.” Id. at 15199. To date, there have been
10 amendments to the original Declaration, each of which expands
or clarifies its scope. Trio v. Turing Video, Inc., No. 1:21-cv-
04409, 2022 WL 4466050, at *10, n.4 (N.D. Ill. Sept. 26, 2022).
In addition, the HHS’s Office of General Counsel (“OGC”) has
issued Advisory Opinions related to the Declaration. Carroll v.
Comprehensive Healthcare Mgmt. Servs., LLC, No. CV 22-686, 2022
WL 17156776, at *7 (W.D. Pa. Aug. 16, 2022), report and
9 recommendation adopted, No. 2:22CV686, 2022 WL 17105481 (W.D.
Pa. Nov. 22, 2022).
2. Immunity Under the PREP Act
As stated above, the PREP Act provides “covered persons”
with immunity from suit and from liability for claims brought
under state and federal law for “loss caused by, arising out of,
relating to, or resulting from the administration to or the use
by an individual of a covered countermeasure.” § 247d-6d(a)(1);
see also § 247d-6d(a)(2)(B). Benchmark argues that it is immune
under the Act from liability for each of Barron’s claims.
Barron does not dispute for the purposes of the instant
motion that Benchmark is considered a “covered person” under the
PREP Act. She argues that Benchmark is not immune from liability
for her claims under the Act, however, because her claims were
not caused by and do not relate to “the administration to or the
use by an individual of a covered countermeasure.” She argues
that, to the contrary, her complaint alleges that Benchmark
negligently failed to use covered countermeasures, and that such
inaction does not fall within the PREP Act’s purview.
The issue presented here — whether a plaintiff’s allegations
of a nursing home’s or assisted living facility’s failure to use
covered countermeasures in response to COVID-19 trigger the PREP
10 Act’s immunity provision — is not one of first impression. Courts
that have considered the issue have overwhelmingly held that the
PREP Act does not provide a defendant with immunity from
liability for claims like Barron’s. See Coleman v. Intensive
Speciality Hosp., LLC, No. CV 21-0370, 2022 WL 17779323, at *7
(W.D. La. Dec. 19, 2022) (denying the defendant’s motion to
dismiss based on immunity under the PREP Act because the
complaint alleged negligence in failing to follow COVID-19
protocols, “not an improper use of a countermeasure, nor a
decision to provide the countermeasure to other patients instead
of” the plaintiff); Testa v. Broomall Operating Co., L.P., No. CV
21-5148-KSM, 2022 WL 3563616, at *5 (E.D. Pa. Aug. 18, 2022)
(“Although the PREP Act immunizes individuals who used covered
countermeasures, it does not shield covered individuals who
failed to use covered countermeasures.”); Walsh v. SSC
Westchester Operating Co. LLC, 592 F. Supp. 3d 737, 744 (N.D.
Ill. 2022) (denying the defendant’s motion for judgment on the
pleadings on immunity grounds because the PREP Act “is designed
to protect those who employ countermeasures, not those who
decline to employ them” (quotations omitted)); Hatcher v. HCP
Prairie Vill. KS OPCO LLC, 515 F. Supp. 3d 1152, 1160 (D. Kan.
2021), appeal dismissed, No. 21-7017, 2021 WL 4768299 (D.C. Cir.
Sept. 28, 2021) (denying the defendant’s motion to dismiss on
11 PREP Act immunity grounds where the plaintiff alleged, among
other things, that the defendant “facility failed to adequately
clean and disinfect common areas” and “that safety protocols were
not carried out”); Ruiz v. ConAgra Foods Packaged Foods, LLC, No.
21-CV-387-SCD, 2021 WL 3056275, at *4 (E.D. Wis. July 20, 2021)
(“Here, because the amended complaint alleges that Ruiz
contracted COVID-19 because of ConAgra’s failure to implement
adequate countermeasures, the PREP Act’s immunity provision does
not apply.”).
Benchmark argues that this interpretation of the PREP Act
contradicts the HHS’s directives. It notes that in the Fourth
Amendment to the COVID-19 Declaration, the HHS Secretary
“[m]akes explicit . . . that there can be situations where not
administering a covered countermeasure to a particular
individual can fall within the PREP Act and this Declaration's
liability protections.” Fourth Amendment to the Declaration
Under the Public Readiness and Emergency Preparedness Act for
Medical Countermeasures Against COVID-19 and Republication of
the Declaration, 85 FR 79190-01. Benchmark also asserts that the
HHS OGC’s Fifth Advisory Opinion, which the Secretary
incorporates into the Fourth Amendment, “further confirms that
the PREP Act indeed applies to suits concerning the non-use of
covered countermeasures against COVID-19.” Doc. no. 5 at 10
12 (citing Advisory Opinion 21-01 on the Public Readiness and
Emergency Preparedness Act Scope of Preemption Provision
(January 8, 2021) (“Fifth Advisory Opinion”)).
Benchmark is correct that both the Fourth Amendment and
Fifth Advisory Opinion show that “an inaction claim is not
necessarily beyond the scope of the PREP Act.” Ruiz, 2022 WL
3056275, at *4 (quotation omitted). But it is equally clear that
the Act does not cover all inaction claims. “The language of the
PREP Act itself supports a distinction between allocation which
results in non-use by some individuals, on the one hand, and
nonfeasance, on the other hand, that also results in non-use.”
Fifth Advisory Opinion, p. 4, available at
https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-
documents/2101081078-jo-advisory-opinion-prep-act-complete-
preemption-01-08-2021-final-hhs-web.pdf. Thus, “inaction or
failure-to-administer resulting from prioritization falls within
the scope of the PREP Act. However, as the Advisory Opinion
clarifies, the PREP Act’s coverage does not extend to inaction
or failure-to-administer resulting from of non-feasance.” Mann
v. Arbor Terrace at Cascade, LLC, No. 1:20-CV-02325-SCJ, 2021 WL
9763357, at *4 (N.D. Ga. Apr. 13, 2021); see Walsh, 592 F. Supp.
3d at 744 (noting that the PREP Act “distinguish[es] between
misfeasance and nonfeasance” because the Act “is designed to
13 protect those who employ countermeasures, not those who decline
to employ them”).
Here, Barron’s complaint does not allege that her parents
contracted COVID-19 due to Benchmark’s prioritization or
allocation of covered countermeasures to other residents.
Rather, Barron alleges that Benchmark failed to act in
accordance with the standard of care, and that this failure led
to her parents’ illness and death. The PREP Act does not provide
Benchmark with immunity from liability for those claims.4 See,
e.g., Ruiz, 2021 WL 3056275, at *5.
3. Defensive Preemption
In the alternative, Benchmark argues that the court should
dismiss each of Barron’s claims “due to express statutory
defensive preemption under subsection (b)(8) of the PREP Act.”
Doc. no. 5 at 21. Defensive or “ordinary” preemption “is an
affirmative defense that exists where federal law explicitly or
implicitly displaces state law within a given scope; it can
4 The court notes that Benchmark raises the PREP Act immunity defense at the motion to dismiss stage, where the court considers only the allegations in Barron’s complaint while resolving all inferences in her favor. The court’s ruling as to whether the Act’s immunity provisions apply in this case is limited to the standard of review applicable to Benchmark’s motion.
14 defeat liability for a state law claim.” Martin v. Petersen
Health Operations, LLC, No. 1:20-CV-1449, 2021 WL 4313604, at *6
(C.D. Ill. Sept. 22, 2021), aff’d, 37 F.4th 1210 (7th Cir.
2022). Preemption is express “when Congress has ‘unmistakably
. . . ordained’ that its enactments alone are to regulate a
subject, and state laws regulating that subject must fall.”
Massachusetts Ass’n of Health Maint. Organizations v. Ruthardt,
194 F.3d 176, 179 (1st Cir. 1999) (quoting Jones v. Rath Packing
Co., 430 U.S. 519, 525 (1977) (alterations and further quotation
omitted)).
Section (b)(8) of the PREP Act, on which Benchmark relies,
is titled “Preemption of State Law.” It provides that, during
the period where the Secretary of HHS issues a declaration,
no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that—
(A) is different from, or is in conflict with, any requirement applicable under this section; and
(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other
15 provision of this chapter, or under the Federal Food, Drug, and Cosmetic Act.
§ 247d-6d(b)(8).
Benchmark contends that this provision of the PREP Act
precludes Barron from pursuing her New Hampshire state law
claims for wrongful death, violation of the Patients’ Bill of
Rights, and violation of the CPA. Specifically, Benchmark argues
that these claims impose legal requirements that are different
from or in conflict with the PREP Act requirements and relate to
the “use . . . or administration by qualified persons of the
covered countermeasures.” Doc. no. 5 at 22 (quoting § 247d-
6D(b)(8)). It is wrong.
Section (b)(8) of the PREP Act “restricts any state from
passing a law that conflicts with the federal government’s
requirements” as provided in the Act. Est. of Maglioli v.
Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518, 530–31
(D.N.J. 2020), aff’d sub nom. Maglioli v. All. HC Holdings LLC,
16 F.4th 393 (3d Cir. 2021). “This language indicates not that
any and all state claims related to COVID-19 are preempted, but
only those that conflict with or differ from the PREP Act are
preempted.” Khalek v. S. Denver Rehab., LLC, 543 F. Supp. 3d
1019, 1026 (D. Colo. 2021).
Benchmark’s defensive preemption argument is a red herring;
a rehash of its claim for immunity dressed in different clothes.
16 Section (b)(8) of “the PREP Act clearly preempts incompatible
state laws.” Martin, 2021 WL 4313604, at *6. But Benchmark
identifies no such New Hampshire law. It does not demonstrate
how the standard of care underpinning Barron’s claims is
incompatible with the requirements under the PREP Act. Rather,
its argument in favor of defensive preemption is based on the
same mistaken belief that undermines its argument in favor of
immunity — that Barron’s claims relate to Benchmark’s
administration and use of covered countermeasures in response to
the COVID-19 pandemic. For the reasons outlined above, Barron’s
claims do not rely on those allegations and so that argument
fails. So too does Benchmark’s preemption defense.5
B. State Statutory Immunity
Benchmark also contends that it is entitled to immunity
from liability for Barron’s state law claims based on RSA 21-
P:42-a. That statute provides that facilities like Benchmark
“are deemed to have been engaged in preparing for and/or
5 Benchmark also briefly argues that the court should dismiss Barron’s claims because she failed to exhaust her administrative remedies under the PREP Act because she did not file a claim under the Covered Countermeasure Process Fund. § 247d-6e(b)(1). Because Benchmark is not entitled to immunity under the PREP Act, the administrative requirements for making a claim under the compensation fund do not apply in this case.
17 carrying out ‘emergency management’ functions for the purposes
of RSA 21-P:35 when complying, or reasonably attempting to
comply, with any executive order, agency order or rule.” Those
facilities shall not be “liable for the death of or injury to
persons . . . as a result of such compliance or reasonable
attempts to comply with such an emergency order or rule under
this section.” Id.
Benchmark points to Executive Order 2020-04, in which
Governor Sununu declared a state of emergency due to COVID-19 in
March 2020. It also cites several guidelines that the Division
of Public Health and the CDC issued to care facilities and
employers relating to efforts to stop the spread of COVID-19.
Benchmark contends that it is immune from Barron’s claims
under RSA 21-P:42-a because the allegations in the complaint are
based on the Benchmark’s compliance with or attempts to comply
with emergency orders or rules relating to efforts to stop the
spread of COVID-19. As explained above, however, Barron’s claims
are based on allegations that Benchmark did not comply or
attempt to comply with those orders and rules. Therefore,
Benchmark has not shown that it is entitled to immunity under
RSA 21-P:42-a.
18 Conclusion
For the foregoing reasons, Barron’s motion to remand
(document no. 8) and Benchmark’s motion to dismiss (document no.
4) are denied.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge February 6, 2022
cc: Counsel of record.