Case 2:20-cv-02561-HLT-TJJ Document 60 Filed 02/26/21 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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` Case No. 2:20-cv-02561-HLT-TJJ
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`GARNICE ROBERTSON,
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`Plaintiff,
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`v.
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`BIG BLUE HEALTHCARE, INC., doing
`business as RIVERBEND POST-ACUTE
`REHABILITATION, et al.,
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`Defendants.
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`MEMORANDUM AND ORDER
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`Plaintiff Garnice Robertson is the surviving child of Georgia Clardy, who was a resident
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`at a care facility where she contracted and died of COVID-19. Plaintiff filed this wrongful-death
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`action against Defendants1—the owners and operators of the care facility—alleging that they were
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`negligent in failing to protect against COVID-19 infections. Defendants removed this case from
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`state court where it was initially filed, arguing that the Public Readiness and Emergency
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`Preparedness Act, 42 U.S.C. § 247d-6d (“PREP Act”), provides for “complete preemption” and
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`presents a federal question, which would give this Court jurisdiction. In turn, Plaintiff moves for
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`remand, arguing that the allegations arise solely under state law and the PREP Act does not apply.
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`In keeping with a series of prior rulings regarding similar claims, the Court agrees with
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`Plaintiff that the PREP Act’s provisions regarding the administration or use of covered
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`countermeasures are not applicable to the allegations in this case, which allege negligence
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`stemming from a failure to follow certain policies, procedures, and guidelines regarding COVID-
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`1 The named defendants in this case are Big Blue Healthcare, Inc.; Gateway Healthcare, Inc.; Golden Oaks
`Healthcare, Inc.; Little Blue Health Holdings, LLC; The Ensign Group, Inc.; Ryan Leiker; and Ensign Services,
`Inc. For purposes of this order, the Court refers to these Defendants collectively while acknowledging that their
`interests might not be aligned beyond this order.
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`Case 2:20-cv-02561-HLT-TJJ Document 60 Filed 02/26/21 Page 2 of 23
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`19. The Court also finds that Plaintiff’s claims do not present an embedded federal question.
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`Accordingly, this Court lacks subject-matter jurisdiction and remands this case to state court.
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`I.
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`BACKGROUND
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`Plaintiff, who is the surviving child of Georgia Clardy, filed this lawsuit in the Wyandotte
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`County District Court in Wyandotte County, Kansas. The petition alleges that Clardy was a
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`resident at Riverbend Post-Acute Rehabilitation, where she was exposed to and contracted
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`COVID-19, and which caused her death. Plaintiff sued Defendants for wrongful death.
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`The petition alleges that Clardy was admitted to Riverbend in 2017 because she was
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`incapable of caring for herself. On March 21, 2020, Clardy began complaining of knee pain. An
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`x-ray showed a femur fracture that had occurred while staff were repositioning her. Clardy was
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`taken to the hospital, where she was treated for five days, before returning to Riverbend.
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`By March 13, 2020, Plaintiff alleges Riverbend knew of the risks associated with COVID-
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`19 and the importance of preventing its spread throughout the facility. However, in late March, a
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`Riverbend staff member began showing symptoms of COVID-19 and was allowed to work while
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`the staff member had a cough or fever, and without using personal protective equipment. The staff
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`member was tested on March 29, and the results came back positive for COVID-19 on March 30.
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`Despite this, Riverbend residents were still allowed to congregate in common areas after March
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`29.
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`By April 1, Riverbend reported to government officials that it had positive COVID-19
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`cases. By April 3, seventeen residents and two staff members at Riverbend had tested positive.
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`Clardy was diagnosed as COVID-19 positive in late March or early April and died from COVID-
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`19 on April 15. Plaintiff claims that Defendants breached their duty of care and were negligent and
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`careless by failing to:
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`2
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`follow proper infection control protocols;
`ensure workers were not working with COVID-19 symptoms;
`provide personal protective equipment (“PPE”) to staff;
`separate those with symptoms from those without;
`adhere to social-distancing guidelines;
`respond to the presence of COVID-19 in the facility;
`timely request additional staff and assistance from public health
`entities;
`supervise, monitor, assess, and document Clardy’s condition;
`implement and carry out safe transfer and repositioning processes,
`and provide a care plan for Clardy’s increased risk of falls;
`implement a care plan to address Clardy’s risk of contracting
`COVID-19;
`protect Clardy from physical harm or injury;
`properly supervise and train staff;
`provide adequate staffing and nursing;
`follow standing orders, instructions, guidelines, and protocol
`regarding COVID-19; and
`provide adequate interventions.
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`Plaintiff alleges that this negligence by Defendants caused Clardy’s death.
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`Defendants removed the case to federal court. Removal is based on federal-question
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`jurisdiction. Defendants contend that, under the PREP Act, the claims in this case are completely
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`preempted, which gives this Court subject-matter jurisdiction. Shortly after removal, Plaintiff filed
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`a motion to remand this case back to state court.2
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`II.
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`STANDARD
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`Under 28 U.S.C. § 1447(c), a district court must remand a case “[i]f at any time before
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`final judgment it appears that the district court lacks subject matter jurisdiction.” Federal courts
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`are courts of limited jurisdiction, so the presumption is one of no jurisdiction until an adequate
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`showing of jurisdiction is made. Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013). When
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`2 Defendants have also moved to dismiss Plaintiff’s case, Docs. 16, 24, 45, and filed counterclaims seeking
`declaratory judgment regarding the applicability of the PREP Act, Docs. 19, 25, 46. Plaintiff has moved to dismiss
`Defendants’ counterclaims. Docs. 31, 50. Given this ruling remanding the case to state court for lack of subject-
`matter jurisdiction, the Court does not reach the motions to dismiss or address the propriety of any counterclaims.
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`3
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`a party removes a case to federal court, the burden is on that party to establish that federal
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`jurisdiction exists. Id.; Christensen v. BNSF Ry. Co., 242 F. Supp. 3d 1186, 1189 (D. Kan. 2017).
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`“Doubtful cases must be resolved in favor of remand.” Thurkill v. The Menninger Clinic, Inc., 72
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`F. Supp. 2d 1232, 1234 (D. Kan. 1999).
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`III. ANALYSIS
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`A.
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`The surreply and supplemental authorities have been considered.
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`Defendants filed a motion for leave to file a surreply. Doc. 53.3 Defendants contend that a
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`surreply is necessary to respond to arguments raised for the first time in Plaintiff’s reply. Plaintiff
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`has not filed any response opposing Defendants’ motion. Surreplies are not permitted without
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`leave of court. See Patterson v. Lansing, 2001 WL 946181, at *2 (D. Kan. 2001). But given the
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`issues at stake and the procedural posture of the case, and given that no opposition was filed, the
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`Court will permit Defendants’ proposed surreply (Doc. 53-1). It has been considered in deciding
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`the motion to remand.
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`Defendants have also filed three letters identifying supplemental authorities in support of
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`their opposition to the motion to remand in accordance with D. Kan. Rule 7.1(f). Docs. 54, 57, 59.
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`The supplemental authorities have also been considered in deciding the motion to remand.
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`B.
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`For purposes of federal-question jurisdiction, the general rule is that a
`plaintiff’s complaint dictates whether state or federal law is invoked.
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`Plaintiff first argues that removal was not proper because the petition does not present a
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`federal question. Defendants removed this case to federal court on grounds that Plaintiff’s state-
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`3 Defendant Ensign Services, Inc. was apparently served at a different time than the other defendants. As a result,
`Plaintiff filed a separate motion to remand as to Defendant Ensign Services, Inc. Doc. 49. That motion wholly
`incorporates all arguments in the motion to remand filed as to the other defendants, Doc. 33. Likewise, Defendant
`Ensign Services, Inc. has filed a notice joining in both the other defendants’ response to the motion to remand and
`the motion for leave to file a surreply. Doc. 56 Accordingly, the Court considers the motion to remand as to all
`Defendants.
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`4
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`court petition asserts a claim “arising under” federal law, within the meaning of 28 U.S.C. § 1331.
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`Specifically, Defendants contend that Plaintiff alleges misconduct by a covered person in the
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`administration of a covered countermeasure under the PREP Act. But Plaintiff’s petition does
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`not—on its face—assert a federal claim, under the PREP Act or otherwise. Plaintiff alleges
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`negligence and wrongful death under Kansas law.
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`In the absence of diversity, federal courts have jurisdiction over civil actions “arising under
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`the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. Whether a claim
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`“arises under” federal law generally turns on the “well-pleaded” allegations of the complaint.
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`Dutcher, 733 F.3d at 985; Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d
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`1195, 1202 (10th Cir. 2012). Federal-question jurisdiction exists only if the plaintiff’s claims are
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`based on federal law. Devon Energy Prod., 693 F.3d at 1202. By omitting federal-law claims from
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`a complaint, a plaintiff can effectively avoid removal. Id. Potential affirmative defenses are not
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`considered, including defenses based on preemption. Id.; Christensen, 242 F. Supp. 3d at 1190.
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`Here, Plaintiff has alleged a negligence and wrongful-death claim under state law. Under
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`the well-pleaded complaint rule, then, there is no federal-question jurisdiction unless Defendants
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`can establish subject-matter jurisdiction under an exception to the well-pleaded complaint rule.
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`C.
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`Defendants argue the PREP Act invokes the doctrine of complete preemption
`or presents an embedded federal question.
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`Defendants’ response to the motion to remand suggests that federal jurisdiction can be
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`found in two ways. Both depend on the PREP Act applying to this case. First, Defendants argue
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`that the doctrine of complete preemption applies, as it operates through the PREP Act. Second,
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`Defendants argue that the PREP Act presents an embedded federal question under the standard in
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`Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308
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`5
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`(2005).4 Because these arguments all turn on the applicability of the PREP Act in this case, the
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`Court must first explore that statute and determine whether it applies to Plaintiff’s claims and, if
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`so, then determine whether either exception to the well-pleaded complaint rules supports removal
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`in this case.
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`1.
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`The PREP Act applies to the administration or use of covered
`countermeasures.
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`The parties disagree on the scope of the PREP Act and whether it applies here. In
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`determining whether a statute applies, the first step is to look at the statute’s “plain and
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`unambiguous meaning.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). If the language is
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`unambiguous, the analysis stops. Id. “The plainness or ambiguity of statutory language is
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`determined by reference to the language itself, the specific context in which that language is used,
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`and the broader context of the statute as a whole.” Id. at 341.
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`The PREP Act is invoked when the Secretary issues a declaration determining—for
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`purposes of the PREP Act—that a disease or other health condition constitutes a public health
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`emergency. 42 U.S.C. § 247d-6d(b). If the Secretary determines that such conditions exist, he or
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`she “may make a declaration, through publication in the Federal Register, recommending . . . the
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`manufacture, testing, development, distribution, administration, or use of one or more covered
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`4 Defendants also suggest that a declaration issued by the Secretary of the Department of Health and Human Services
`(“HHS”) “mandates” federal jurisdiction. As discussed below, under the PREP Act, the Secretary may issue a
`declaration stating that the PREP Act is in effect. See 42 U.S.C. § 247d-6d(b). This can include recommending
`“the manufacture, testing, development, distribution, administration, or use of one or more covered
`countermeasures, and stating that [the PREP Act’s immunity provision] is in effect with respect to the activities so
`recommended.” Id. Defendants suggest that the Secretary, in such a declaration, has made clear that Plaintiffs’
`claims “are federal claims and belong in the federal court system.” Doc. 38 at 7. But it is unclear whether this
`argument is separate from Defendants’ argument regarding complete preemption or Grable. The Court addresses
`the Grable argument below. To the extent Defendants are suggesting that the PREP Act authorizes the Secretary
`to alter or establish federal court jurisdiction, the Court finds no support for that claim and does not adopt it. The
`Court also notes that Defendants sometimes conflate the doctrine of complete preemption with the Grable doctrine,
`see Doc. 38 at 12, although these appear to be separate tests. Thus, the Court will address them separately.
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`6
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`countermeasures, and stating that [42 U.S.C. § 247d-6d(a)] is in effect with respect to the activities
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`so recommended.” Id.
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`The Secretary has issued such a declaration regarding the COVID-19 pandemic. See
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`Declaration Under the Public Readiness and Emergency Preparedness Act for Medical
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`Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (Mar. 10, 2020) (“Declaration”). The
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`Declaration has been amended six times. Primarily relevant here are the original Declaration and
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`the Fourth Amendment to the Declaration, 85 Fed. Reg. 79,190 (December 3, 2020) (“Fourth
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`Amendment”).
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`Once the Secretary has issued a declaration, the PREP Act provides sweeping immunity
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`for certain claims against certain covered individuals: “a covered person5 shall be immune from
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`suit and liability under Federal and State law with respect to all claims for loss caused by, arising
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`out of, relating to, or resulting from the administration to or the use by an individual of a covered
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`countermeasure . . . .” 42 U.S.C. § 247d-6d(a)(1). This immunity is broad. It
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`applies to any claim for loss that has a causal relationship with the
`administration
`to or use by an
`individual of a covered
`countermeasure, including a causal relationship with the design,
`development, clinical
`testing or
`investigation, manufacture,
`labeling,
`distribution,
`formulation,
`packaging, marketing,
`promotion, sale, purchase, donation, dispensing, prescribing,
`administration, licensing, or use of such countermeasure.
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`Id. at § 247d-6d(a)(2)(B) (emphasis added).
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`5 Who constitutes a covered person is further defined in the PREP Act, and certain additional requirements may
`apply based on the type of “covered person” at issue. See, e.g., 42 U.S.C. § 247d-6d(a)(3)(C), (i)(2). Although the
`parties cite to subsequent guidance and debate whether Defendants are covered persons, the Court need not reach
`this issue. As discussed below, the Court finds that Plaintiff’s claims do not assert a causal connection to the
`administration or use of covered countermeasures. Thus, even the Court accepted that Defendants are “covered
`persons,” the PREP Act would still not apply.
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`7
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`A “covered countermeasure” under the PREP Act is, simplified, a drug, biological product,
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`or device that is a “qualified pandemic or epidemic product”6 or a “security countermeasure,”7 or
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`is authorized for emergency use under the Federal Food, Drug, and Cosmetic Act. Id. at § 247d-
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`6d(i)(1). It also includes a “respiratory protective device that is approved by the National Institute
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`for Occupational Safety and Health.” Id. The Fourth Amendment more specifically defines
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`covered countermeasures as:
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`(a) Any antiviral, any drug, any biologic, any diagnostic, any other
`device, any respiratory protective device, or any vaccine
`manufactured, used, designed, developed, modified, licensed, or
`procured:
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`
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`i. To diagnose, mitigate, prevent, treat, or cure COVID-19, or
`the transmission of SARS-CoV-2 or a virus mutating
`therefrom; or
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`ii. to limit the harm that COVID-19, or the transmission of
`SARS-CoV-2 or a virus mutating
`therefrom, might
`otherwise cause;
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`(b) a product manufactured, used, designed, developed, modified,
`licensed, or procured to diagnose, mitigate, prevent, treat, or
`cure a serious or life-threatening disease or condition caused by
`a product described in paragraph (a) above;
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`(c) a product or technology intended to enhance the use or effect of
`a product described in paragraph (a) or (b) above; or
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`(d) any device used in the administration of any such product, and
`all components and constituent materials of any such product.
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`Fourth Amendment, 85 Fed. Reg. at 79,196. But regardless, any countermeasure must still meet
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`the definition of “covered countermeasure” in the PREP Act itself. Id.
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`6 A “qualified pandemic or epidemic product” is defined at 42 U.S.C. § 247d-6d(i)(7).
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`7 A “security countermeasure” is defined at 42 U.S.C. § 247d-6b(c)(1)(B).
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`8
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`“Administration” and “use” are not defined in the PREP Act. But the Secretary’s
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`Declaration states that “administration” of covered countermeasures “means physical provision of
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`the countermeasures to recipients, or activities and decisions directly relating to public and private
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`delivery, distribution and dispensing of the countermeasures to recipients, management and
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`operation of countermeasure programs, or management and operation of locations for purpose of
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`distributing and dispensing countermeasures.” Declaration, 85 Fed. Reg. at 15,202. The Fourth
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`Amendment has stated that, “[w]here there are limited Covered Countermeasures, not
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`administering a Covered Countermeasure to one individual in order to administer it to another
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`individual can constitute ‘relating to . . . the administration to . . . an individual’ under 42 U.S.C.
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`[§] 247d-62.” Fourth Amendment, 85 Fed. Reg. at 79,197.
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`There are two exceptions to the PREP Act’s immunity provision. The PREP Act permits
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`“an exclusive Federal cause of action against a covered person for death or serious physical injury
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`proximately caused by willful misconduct . . . .” 42 U.S.C. § 247d-6d(d)(1) (emphasis added).
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`Such actions must “be filed and maintained only in the United States District Court for the District
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`of Columbia.” Id. at § 247d-6d(e)(1).8 For injuries not involving willful misconduct, the PREP Act
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`establishes a “Covered Countermeasure Process Fund,” which provides “compensation to eligible
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`individuals for covered injuries directly caused by the administration or use of a covered
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`countermeasure pursuant to such declaration.” 42 U.S.C. § 247d-6e(a) (emphasis added). That
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`fund is funded by Congressional appropriation. Id. No federal or state court has jurisdiction to
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`review award decisions by the fund. Id. at § 247d-6e(b)(5)(C).
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`The PREP Act preempts state laws that create different standards regarding covered
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`countermeasures:
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`8 Additional requirements govern willful-misconduct claims. 42 U.S.C. § 247d-6d(c), (e).
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`9
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`During the effective period of a declaration under subsection (b), or
`at any time with respect to conduct undertaken in accordance with
`such 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—
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`(A) is different from, or is in conflict with, any requirement
`applicable under this section; and
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`(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 provision of this chapter, or under the
`Federal Food, Drug, and Cosmetic Act.
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`42 U.S.C. § 247d-6d(b)(8).
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`
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`In sum, the PREP Act creates immunity for all claims of loss causally connected to the
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`administration or use of covered countermeasures, which are certain drugs, products, or devices.
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`Exceptions to immunity exist for claims proximately caused by willful misconduct, but suit must
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`be brought in the United States District Court for the District of Columbia. All other claims for
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`injuries “directly caused by the administration or use of a covered countermeasure” must be
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`pursued through the Covered Countermeasure Process Fund. State laws that differ or conflict
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`regarding the administration or use of covered countermeasures are preempted.
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`2.
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`Plaintiff’s claims do not fall under the PREP Act, and thus the doctrine
`of complete preemption, to the extent it exists under the PREP Act, does
`not permit removal.
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`a.
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`Complete preemption is a rare corollary to the well-pleaded
`complaint rule.
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`Defendants argue that this Court has subject-matter jurisdiction sufficient to allow removal
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`under the PREP Act and the doctrine of complete preemption. The doctrine of complete
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`10
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`preemption is an exception or corollary to the well-pleaded complaint rule. See Devon Energy
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`Prod., 693 F.3d at 1204. “Complete preemption is a rare doctrine” that has only been recognized
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`in a handful of areas. Id. at 1204-05 (quoting Cmty. State Bank v. Strong, 651 F.3d 1241, 1260 n.
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`16 (11th Cir. 2011)). It is not to be lightly invoked. Devon Energy Prod., 693 F.3d at 1205;
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`Connolly v. Union Pac. R.R. Co., 453 F. Supp. 2d 1104, 1109 (E.D. Mo. 2006) (“Courts have
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`cautioned against an expansive application of the exception . . . .”). Complete preemption is not so
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`much a statement of the breadth of a statute’s preemptive power, “but rather as a description of the
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`specific situation in which a federal law not only preempts a state law to some degree but also
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`substitutes a federal cause of action for the state cause of action, thereby manifesting Congress’s
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`intent to permit removal.” Devon Energy Prod., 693 F.3d at 1205 (quoting Schmeling v. NORDAM,
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`97 F.3d 1336, 1342 (10th Cir. 1996)).
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`Importantly, “complete preemption” is not the same thing as “ordinary preemption.” See
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`Dutcher, 733 F.3d at 986. Complete preemption is a jurisdictional concept, while ordinary
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`preemption is a defense to liability. See Devon Energy Prod., 693 F.3d at 1203 n.4; Christensen,
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`242 F. Supp. 3d at 1190; see also Schmeling, 97 F.3d at 1342. Ordinary preemption, which can
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`take the form of express, conflict, or field preemption, is generally an affirmative defense that state
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`law has in some way been displaced by federal law. Devon Energy Prod., 693 F.3d at 1203 n.4.
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`But an ordinary-preemption defense does not make a complaint removable to federal court. See
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`Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1221 (10th Cir. 2011); Sullivan v. Am. Airlines,
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`Inc., 424 F.3d 267, 272-73 (2d Cir. 2005) (“Many federal statutes—far more than support complete
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`preemption—will support a defendant’s argument that because federal law preempts state law, the
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`defendant cannot be held liable under state law.”). This is true—though often a point of
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`confusion—no matter how complete the ordinary-preemption defense is.
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`11
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`By contrast, complete preemption—a jurisdictional doctrine—is said to make what is
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`ostensibly “a state-law claim purely a creature of federal law, and thus removable from state to
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`federal court from the outset.” Hansen, 641 F.3d at 1221 (internal quotations and citations
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`omitted). The distinction is important. “That is, a state cause of action may not be viable because
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`it is preempted by a federal law—but only if federal law provides its own cause of action does the
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`case raise a federal question that can be heard in federal court.” Dutcher, 733 F.3d at 986; see also
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`Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987). In other words, just because a federal
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`statute provides a sound preemption defense to a state-law claim does not make it removable. See
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`Dupervil v. All. Health Operations, LCC, 2021 WL 355137, at *9 (E.D.N.Y. 2021) (“Importantly,
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`only complete preemption provides a basis for removal; returning to the well-pleaded complaint
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`rule, an action may not be removed simply because the defendant can raise the defense of field
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`preemption.”). The statute must also provide an exclusive cause of action. In this way, complete
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`preemption—the jurisdictional doctrine—does not operate as a defense; rather, it operates to
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`redirect a plaintiff’s case to federal court because the claim, although labeled as a state-law claim,
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`is actually a federal cause of action created by Congress and intended to be exclusive.
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`In determining whether to apply the doctrine of complete preemption, the Court asks two
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`questions. Does a federal provision preempt the state law relied on by the plaintiff? And has
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`Congress created an exclusive federal cause of action meant to displace all state claims, such that
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`the claim is removable? Devon Energy Prod., 693 F.3d at 1205; see also Beneficial Nat. Bank v.
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`Anderson, 539 U.S. 1, 9 n.5 (2003) (stating that “the proper inquiry focuses on whether Congress
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`intended the federal cause of action to be exclusive rather than on whether Congress intended that
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`the cause of action be removable”).
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`Case 2:20-cv-02561-HLT-TJJ Document 60 Filed 02/26/21 Page 13 of 23
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`Importantly, and perhaps obviously, the claims at issue must fall within the scope of the
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`relevant federal statute for complete preemption to apply. See Beneficial Nat. Bank, 539 U.S. at 8
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`(“When the federal statute completely pre-empts the state-law cause of action, a claim which
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`comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality
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`based on federal law.”); Sullivan, 424 F.3d at 272 (“Under the complete-preemption doctrine,
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`certain federal statutes are construed to have such ‘extraordinary’ preemptive force that state-law
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`claims coming within the scope of the federal statute are transformed, for jurisdictional purposes,
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`into federal claims—i.e., completely preempted.”). Accordingly, to avoid remand, Defendants
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`must show that Plaintiff’s allegations fall within the scope of the PREP Act.
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`b.
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`Plaintiff’s claims do not fall under the PREP Act.
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`Plaintiff argues that the PREP Act is not implicated in this case, and thus the doctrine of
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`complete preemption cannot provide a path to jurisdiction and this case must be remanded. In a
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`series of earlier cases arising out of COVID-19 deaths at the same facility, which involved
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`essentially the same defendants and had state-court petitions substantively like the petition in this
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`case, the Court granted a motion to remand. See, e.g., Jackson v. Big Blue Healthcare, Inc., 2020
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`WL 4815099, at *8 (D. Kan. 2020).9 In those cases, the Court found that the plaintiffs’ claims
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`9 There were 12 cases that were substantively identical, and the Court issued functionally identical opinions in each
`of the cases. See Jackson, 2020 WL 4815099; Lutz v. Big Blue Healthcare, Inc., 2020 WL 4815100 (D. Kan. 2020);
`Rodina v. Big Blue Healthcare, Inc., 2020 WL 4815102 (D. Kan. 2020); Eaton v. Big Blue Healthcare, Inc., 2020
`WL 4815085 (D. Kan. 2020); Brown v. Big Blue Healthcare, Inc., 2020 WL 4815078 (D. Kan. 2020); Fortune v.
`Big Blue Healthcare, Inc., 2020 WL 4815097 (D. Kan. 2020); Block v. Big Blue Healthcare, Inc., 2020 WL
`4815076 (D. Kan. 2020); Baskin v. Big Blue Healthcare, Inc., 2020 WL 4815074 (D. Kan. 2020); Harris v. Big
`Blue Healthcare, Inc., 2020 WL 4815098 (D. Kan. 2020); Campbell v. Big Blue Healthcare, Inc., 2020 WL
`4815082 (D. Kan. 2020); Long v. Big Blue Healthcare, Inc., 2020 WL 4815079 (D. Kan. 2020); Block v. Big Blue
`Healthcare, 2020 U.S. Dist. LEXIS 150005 (D. Kan. 2020). The Court has reviewed and compared the petition in
`this case to those in these earlier 12 cases and finds them to be substantively similar. Although Defendants argue
`that a different outcome should occur here, that appears to be based on subsequent developments involving the
`PREP Act, agency guidance, and other authorities. Neither party raises substantive distinctions between the
`petitions in this case and those previously remanded to state court. Indeed, neither party substantively addresses
`these prior decisions much at all.
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`Case 2:20-cv-02561-HLT-TJJ Document 60 Filed 02/26/21 Page 14 of 23
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`were premised on a failure to take preventative measures to stop the spread of COVID-19, and that
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`none of the harm alleged was causally connected to the administration or use of any covered
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`countermeasure—the focus of the PREP Act. See, e.g., id. at *6. Because the decedent’s death was
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`not caused by the administration or use of covered countermeasures, the PREP Act did not apply
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`to those plaintiffs’ claims. This was based on the plain language of the PREP Act and the very few
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`cases to have addressed it at the time. See, e.g., id. at *6-8.
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`Since those orders were issued, the Court has identified at least 13 other cases that have
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`reached similar conclusions. See Lyons v. Cucumber Holdings, LLC, 2021 WL 364640 (C.D. Cal.
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`2021); Dupervil, 2021 WL 355137; Goldblatt v. HCP Prairie Village KS OPCO LLC, 2021 WL
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`308158 (D. Kan. 2021); Anson v. HCP Prairie Village KS OPCO LLC, 2021 WL 308156 (D. Kan.
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`2021); Grohmann v. HCP Prairie Village KS OPCO LLC, 2021 WL 308550 (D. Kan. 2021);10
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`Estate of Smith v. Bristol at Tampa Rehab. & Nursing Ctr., LLC, 2021 WL 100376 (M.D. Fla.
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`2021); Parker v. St. Jude Operating Co., LLC, 2020 WL 8362407 (D. Or. 2020); Gunter v. CCRC
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`Opco-Freedom Square, LLC, 2020 WL 8461513 (M.D. Fla. 2020); Sherod v. Comprehensive
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`Healthcare Mgmt. Servs., LLC, 2020 WL 6140474 (W.D. Pa. 2020);11 Saldana v. Glenhaven
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`Healthcare LLC, 2020 WL 6713995 (C.D. Cal. 2020); Estate of Jones v. St. Jude Operating Co.,
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`LLC, 2020 WL 8361924 (D. Or. 2020); Martin v. Serrano Post Acute LLC, 2020 WL 5422949
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`(C.D. Cal. 2020); Haro v. Kaiser Found. Hosps., 2020 WL 5291014 (C.D. Cal. 2020).12
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`10 Goldblatt, Anson, and Grohmann involved the same facility and were substantively identical.
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`11 Sherod involved a worker at a rehabilitation facility that contracted and died from COVID-19. But the analysis
`was otherwise like cases involving residents. See Sherod, 2020 WL 6140474, at *7.
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`12 The claims in Haro were that employees were required to show up 15 minutes before their shift started for health
`screenings, but they were not compensated for that time. Haro, 2020 WL 5291014, at *1. The defendants removed
`the case, citing the PREP Act and complete preemption, among other things. But the court found that the PREP
`Act did not cover the claims because they were not causally connected to the use of covered countermeasures. Id.
`at *3.
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`Case 2:20-cv-02561-HLT-TJJ Document 60 Filed 02/26/21 Page 15 of 23
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`
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`Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518 (D.N.J. 2020),
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`which was issued shortly before this Court’s rulings in the earlier Big Blue Healthcare cases and
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`cited therein, reached a similar conclusion as well. The Court also notes Hatcher v. HCP Prairie
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`Village KS OPCO LLC, No. 20-2374-SAC (D. Kan. Jan. 27, 2021). Hatcher is a diversity case,
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`but the court denied a motion to dismiss based on a claimed PREP Act immunity, finding that the
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`PREP