PITTSBURGH – Counsel for an at-home physical therapist and her employer who previously contended that an elderly Bethel Park couple who contracted COVID-19 after an appointment in November 2020 was responsible and liable for the injuries they suffered, now seek sanctions from plaintiff counsel for an alleged lack of response to discovery requests.
John Boyle and Cheryl McKinney of Bethel Park first filed suit in the Allegheny County Court of Common Pleas on April 20, 2021 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, 2021, 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, 2021, 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.”
In a July 13, 2021 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.
In response, the defense said in a subsequent brief filed one week later that a federal question was indeed raised.
After the case was remanded to the trial court in December 2021, the defendants filed an answer and new matter in the case on March 25 – charging, among other things, that the plaintiffs were responsible for their own injuries.
“Plaintiffs may have no standing to bring this action. Plaintiffs have failed to set forth a claim upon which relief can be granted, including but not limited to, plaintiffs’ claims of negligence, professional negligence and respondeat superior. Defendants hereby plead that plaintiffs’ claims are barred, or, in the alternative, are limited by provisions of Medical Care Availability and Reduction of Error (MCARE) Act. Defendants hereby plead that any and all damages and/or injuries complained of by plaintiffs are the result of plaintiffs’ pre-existing conditions and/or injuries,” the defendants argued in their answer, in part.
“Defendants hereby incorporate the provisions and defenses of the Health Care Services Facilities Act, the Health Care Services Malpractice Act, the Older Adults Protective Services Act, the MCARE Act, PACS Title 18 and Federal Nursing Home Reform Act to the extent they are applicable to the facts and circumstances of this action. To the extent that it is determined that plaintiffs had pre-existing conditions that caused or contributed to the alleged injury, defendants plead the existence of that pre-existing condition as an affirmative defense. It is specifically denied that defendants acted in an outrageous, reckless, willful or wanton manner, or that an award of punitive damages is warranted.”
UPDATE
Defense counsel filed a motion for sanctions on Sept. 20, charging that plaintiff counsel had not properly responded to its requests for discovery materials, which had been due within 30 days after the initial March 25 request, over the previous six months.
“In email correspondence of July 21, 2022, counsel for plaintiffs reported that he was working with his clients to complete discovery responses, was in the middle of moving his office and requested ‘a few additional weeks’ to complete discovery responses. Upon inquiry by counsel for defendants, plaintiffs’ counsel reported on July 28, 2022 that he anticipated producing discovery responses during the week of Aug. 19, 2022.” the sanctions motion stated, in part.
“On Aug. 29, 2022, counsel for defendants sent plaintiffs’ counsel email correspondence again inquiring in to the status of discovery responses having not been served with same nor provided an update from counsel for plaintiffs. In a responsive email of Sept. 1, 2022, counsel for plaintiffs responded to the inquiry of defense counsel by noting his participation in a jury trial for the next three to four weeks, continued efforts to work with plaintiffs on securing discovery responses and an intention to produce authorizations for the release of records ‘as a show of good faith.”
Defense counsel followed up with an email on Sept. 2 notifying plaintiffs’ counsel of their intent to move forward with a motion for sanctions in the event that discovery responses were not received by Sept. 16.
“Counsel for defendants did not receive a response to his email communication of Sept. 2, 2022, and as of the date of this motion, plaintiffs have not responded to defendants’ written discovery requests. Defendants are prejudiced by plaintiffs’ failure to timely respond to written discovery requests and in their ability to defend the case and further investigate plaintiffs’ claims,” the motion for sanctions concluded.
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 Stephen C. Sliger of Burns White, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-004147
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