PITTSBURGH – A physical therapy firm accused of not using personal protective equipment and leading a Bethel Park couple to contract COVID-19 has cited a recent decision from the U.S. Court of Appeals for the Third Circuit in support of its efforts to dismiss the plaintiffs’ case.
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.
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 Public Readiness and Emergency Preparedness Act
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.
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, “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.”
UPDATE
The defendants filed a notice of additional authority on Oct. 21, referring to a recent Third Circuit decision as being one that could nullify the state-law negligence claims at issue in this case.
“Since the filing of defendants’ notice of removal and the parties’ briefing on plaintiffs’ remand motion and defendants’ motion to dismiss, the United States Court of Appeals for the Third Circuit issued a decision in Maglioli v. Alliance HC Holdings LLC, No. 20-2833 (on Oct. 20, 2021),” the notice read.
“In Maglioli, the Third Circuit held (among other things) that: (1) A healthcare provider cannot remove a claim from state court pursuant to the Federal Officer Removal Statute when acting pursuant to COVID-19 agency directives, (2) That the Public Readiness and Emergency Preparedness Act does not completely preempt a negligence state law claim, and (3) That the defendant’s assertion of the PREP Act defense was insufficient to invoke the Grable doctrine because the defense was not actually mentioned in the complaint.”
The defendants added that notably, the Third Circuit did not address “whether the Grable doctrine is applicable where the complaint itself alleges a breach of federal guidelines as the basis for its state-law negligence claims,” and “unlike in Maglioli, the plaintiffs here explicitly relied on federal guidelines issued by the CDC to establish the alleged actionable standard of care.”
“Without the federal guidelines, there would be no alleged ‘duty to wear PPE’ (if any such duty even exists), no breach of that duty, and as a result no negligence claim. Thus here, the complaint itself is premised upon a violation of federal law, and as a result, the Grable doctrine has been properly evoked,” the notice said.
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
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com