PITTSBURGH – Entities in a negligence lawsuit centering on whether or not a physical therapy firm’s lack of using personal protective equipment led a Bethel Park couple to contract COVID-19 are battling over whether the case has a pertinent federal question.
John Boyle and Cheryl McKinney of Bethel Park first filed suit in the Allegheny County Court of Common Pleas on April 20 versus Judith Meyer and Orthopedic & Sports Physical Therapy Associates, Inc., of Charleroi.
The suit explained Meyer was employed by OSPTA as an at-home physical therapist and outlines the background of the COVID-19 pandemic, noting that the majority of the virus’s fatalities were among the elderly population and those with underlying medical complications – along with methods of prevention, such as the use of masks, gloves and other PPE.
“Boyle and McKinney are both of an advanced age and suffer from various physical ailments. At the time of the incident, Boyle was recovering from a recent open-heart surgery. As a result of his open-heart surgery, Boyle was required to take physical therapy. In order to reduce the likelihood of contact with any individuals outside of his residence, Boyle arranged for physical therapy at his home with defendant OSPTA,” the suit stated.
“On Nov. 8, 2020, defendant-therapist, working for defendant OSPTA, arrived at Boyle’s home in Allegheny County to provide at-home physical therapy to Boyle. Upon arrival, defendant-therapist was not wearing gloves, a face shield, or an appropriate face mask; defendant-therapist only had a thin, disposable surgical mask. Defendant-therapist immediately shook Boyle’s hand, despite not having gloves or other appropriate protective equipment. Defendant-therapist did not wash her hands upon arrival or before performing physical therapy on Boyle. Defendant-therapist touched numerous other surfaces and objects in the plaintiff’s home.”
Meyer, acting within the scope of her employment with OSPTA, provided the above-discussed physical therapy to Boyle. She was also supposed to provide physical therapy for Boyle the following Thursday, but she was not present and another professional provided physical therapy for Boyle instead.
“On Nov. 14, 2020, defendant-therapist called Boyle and McKinney and informed them that she and her son had both tested positive for COVID-19. Shortly thereafter, both Boyle and McKinney developed symptoms associated with COVID-19. Boyle and McKinney’s symptoms include, but are not limited to: Severe respiratory trauma, fever and chills, a persistent, painful cough, fatigue and shortness of breath, muscle and body aches, headache, chest pain and pressure and other flu-like symptoms,” per the suit.
“As a result, Boyle and McKinney were both admitted to the hospital and were put on oxygen on Nov. 19, 2020. Boyle returned home on Nov. 29, 2020, and McKinney returned home on Nov. 28, 2020. Boyle and McKinney continue to suffer adverse effects associated with the disease, and Ms. McKinney still relies on an oxygen tank to breathe. Neither Boyle nor McKinney had outside contact with any individual other than Judith Meyers during this time.”
Counsel for the defendants filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on May 24, holding that the case contained questions of federal law which made such a removal appropriate.
“Removal to this Court is appropriate because plaintiffs’ claims involve a federal question under the Public Readiness and Emergency Preparedness Act and under the federal officer removal statute,” the removal motion stated.
“Here, plaintiffs’ negligence claims are completely preempted by the PREP Act as they are based solely on the countermeasures employed by defendants. The PREP Act provides an exclusive federal cause of action for claims arising out of or relating to the administration and use of covered countermeasures, and it prescribes the procedures and remedies governing that cause of action. It thus completely preempts state law causes of action, such as negligence, relating to those claims.”
Defense counsel also filed a motion to dismiss the lawsuit and an accompanying brief on June 22, charging that they are immune from the litigation under the PREP Act.
“Taken as true, plaintiffs’ complaint alleges nothing more than defendants’ inappropriate use of personal protective equipment and ineffective management of a COVID-19 infection control program in violation of federal guidelines issued by the U.S. Centers for Disease Control. Defendants are immune from such claims under the federal Public Readiness and Emergency Preparedness Act,” the motion to dismiss stated, in part.
“Congress has declared that healthcare providers, who are working tirelessly to provide healthcare services amidst the COVID-19 global pandemic, are entitled to protection from lawsuits that second guess the manner in which they have administered countermeasures during this national public health emergency. The broad application of the PREP Act provides immunity to ‘covered persons,’ such as defendants, related to the administration and/or use of ‘covered countermeasures,’ including use of PPE and the establishment of COVID-19 infection control programs.”
UPDATE
In a July 13 reply brief, the plaintiffs argued that the removal of the case under the PREP Act was improper and the defendants’ motion to dismiss should be denied, as in their belief, no federal question existed in this case and the PREP Act was not applicable.
“Here, plaintiffs’ claims do not fall within the purview of the PREP Act. Assuming plaintiffs’ claims did fall within the scope of the PREP Act, plaintiffs would still not be provided a federal cause of action vindicating the same interests set forth in their civil complaint. In their complaint, plaintiffs have asserted only claims of negligence and would not fall under the narrow ‘willful misconduct’ exception,” the reply brief stated, in part.
“As such, plaintiffs’ only means of recourse would be to apply to the process fund, an administrative remedy, which would not satisfy the first factor. Moreover, the PREP Act contains no ‘express pre-emption’ clause and defendants have cited to no authority for the proposition that Congress clearly intended to permit removal despite plaintiffs’ reliance only upon state law negligence claims.”
According to the plaintiffs, their allegations against OSPTA “arise not from any use or non-use of PPE, but rather are focused upon the failure of OSPTA to act at all.”
In response, the defense said in a subsequent brief on July 20 that a federal question was indeed raised.
“As the Department of Human Health Services stated in Advisory Opinion 21-01, the PREP Act is a complete preemption statute because it contains the exclusive civil enforcement procedure for any claims relating to the use or administration of a covered countermeasure, such as a mask. While some district courts have rejected this on the grounds that the PREP Act must provide a federal cause of action for complete preemption to attach, those courts are wrong. Complete preemption only requires an exclusive federal remedy to apply,” the defense said.
“Moreover, plaintiffs’ insistence that the complaint is a mere assertion of ‘two claims based on state law negligence’ is belied by plaintiffs’ allegation that defendants’ negligent use of a surgical mask violated the ‘duty to wear PPE’ – a standard of care derived from the CDC’s COVID-19 guidelines – which caused them to contract COVID-19. Such allegations necessarily require the resolution of at least two federal issues: (1) Whether the CDC guidelines create a duty to wear PPE, and (2) Whether the use of a surgical mask adheres to this standard of care. Because of the federal nature of plaintiffs’ claims, removal is proper pursuant to the Grable doctrine.”
For counts of negligence and negligence (respondeat superior), the plaintiffs are seeking damages in excess of $35,000, plus interest, costs, reasonable attorney’s fees and other such relief as is appropriate.
The plaintiffs are represented by John P. Corcoran Jr. and Mark E. Casper Jr. of Jones Gregg Creehan & Gerace, in Pittsburgh.
The defendants are represented by Patrick L. Mechas and Allison M. Erndl of Burns White, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00694
Allegheny County Court of Common Pleas case GD-21-004147
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com