PHILADELPHIA – Delaware County and a local senior care facility have successfully overcome a wrongful death claim, in a lawsuit filed by the surviving children of a man who died from COVID-19 while under the facility’s care.
Christopher Beaty Jr. of Drexel Hill and Nichole Garcia of Broomall first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 6, 2021 versus Fair Acres Geriatric Center of Lima and Delaware County, of Media.
The suit alleged that Christopher David Beaty was a 15-year resident of Fair Acres Geriatric Center around the time that the COVID-19 pandemic began, and that while Fair Acres began prohibiting visitors in March 2020, it was over two months after the facility went on lockdown that they began to test residents and staff for the virus, despite residents being permitted to continue to freely intermingle.
The suit also alleged that, once testing began, multiple Fair Acres residents tested positive for COVID-19 and Beaty’s roommate began showing symptoms of the coronavirus. However, the facility allegedly declined to move Beaty’s roommate to another room while his test results were pending.
On June 1, 2020 the same day that Beaty allegedly reached out to the plaintiffs regarding his roommate, the plaintiffs alleged that Fair Acres contacted them to inform them Beaty had a low-grade fever. When the results of both tests, which had been taken on May 29, 2020 came back on June 2, 2020, the suit alleged that Beaty’s was negative but his roommate’s was positive.
The suit continued that, following deteriorating symptoms, Beaty was taken to Riddle Memorial Hospital the following day, where he tested positive for COVID-19 and then passed away three days later, on June 6, 2020.
The defendants then moved to dismiss the case on June 7, 2021, contending that they have statutory immunity under the Public Readiness and Emergency Preparedness Act and the plaintiffs did not adequately pled a basis for municipal liability.
However, U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond rejected this rationale and denied the defendants’ motion to dismiss in an Aug. 5, 2021 order.
“In its motion to dismiss – which does not conform to the Court’s standing order respecting font and length – defendants offers two broad arguments: That the Public Readiness and Emergency Preparedness Act precludes liability and that plaintiffs have not adequately pled their Section 1983 claims. Both arguments fail,” Diamond said.
“The PREP Act provides immunity from suit for those persons and entities that take ‘countermeasures’ to prevent COVID. To trigger the immunity provision, there must be ‘a causal relationship’ between the harm alleged and ‘the administration to or use by an individual of a covered countermeasure.’ The term ‘covered countermeasure’ does not include ‘social distancing, quarantining, [or] lockdowns.’ Nor does a defendants’ failure to take countermeasures fall within the scope of the Act’s protection, even if such action was federally mandated.”
Diamond further elaborated, explaining he felt the facility failed to take proper precautions to protect the decedent Beaty in this case.
“Defendants urges that the COVID test it administered to decedent in late May 2020 was a ‘countermeasure’ that was ‘used’ and so bears a ‘causal relationship’ to his death. I disagree. The mere fact that decedent’s test result was pending when he first become symptomatic does not create a ‘causal relationship’ between the test and his death,” Diamond stated.
“Nor do defendants’ decisions regarding quarantining qualify as ‘covered countermeasures’. Moreover, the purported decision to keep decedent in his room until after his roommate’s positive test result was a failure to take preventative measures, rather than as an affirmative act, and so does not fall within the statute’s protection. Similarly, plaintiff’s negligence claims (e.g. failing to follow CDC guidelines, implement control protocols, etc.) also describe defendants’ alleged omissions, and so also fall outside the PREP Act. Because I conclude that the PREP Act does not apply here, defendants’ contentions citing the Act’s exhaustion requirements, pleading rules, and preemption of Section 1983 claims necessarily fail.”
Diamond elaborated that the defendants did not demonstrate in their dismissal motion that the plaintiffs lacked standing in their civil rights claims.
“Defendants next urge that plaintiffs have not adequately pled a basis for Monell liability, arguing that ‘it is impossible for any practice to have become so well established to be considered a custom or policy’ in the ever-evolving context of the pandemic, and “none of the facts alleged by plaintiffs indicate that [defendants] acted with deliberate indifference.” I disagree,” Diamond said.
“At the very least, plaintiffs have adequately pled deliberate indifference, alleging that: Decedent suffered from comorbidities of which defendants were aware, making him vulnerable to COVID-19 infection; the World Health Organization declared COVID-19 a global pandemic some three months before decedent contracted the virus; and defendants nonetheless failed to take action to protect decedent from COVID infection, which then caused his death. These allegations are sufficient to state a plausible Monell claim.”
The defendants filed notice of their interlocutory appeal of the defeat of their dismissal motion to the U.S. Court of Appeals for the District of Columbia Circuit, on Sept. 1, 2021. After the case returned to the U.S. District Court for the Eastern District of Pennsylvania for lack of jurisdiction elsewhere, the defendants motioned for summary judgment on May 23.
UPDATE
As a result, Diamond granted the defense’s attempt at dismissing the wrongful death claim, but otherwise denied the summary judgment motion on Aug. 10.
“Here, plaintiffs attribute decedent’s death to Fair Acres’ inaction: specifically, its ‘failure to have adequate policies and practices in place for proper testing of the residents’ and its failure to isolate decedent promptly from his symptomatic roommates. Fair Acres cannot obtain immunity for its alleged failure to implement routine testing because no record evidence even suggests – let alone establishes – that this failure resulted from the ‘purposeful allocation’ of ‘limited’ test resources. Nor can Fair Acres claim immunity for its alleged failure to quarantine decedent or his roommates promptly because quarantining is not a ‘covered countermeasure.’ Because the PREP Act does not apply here, Fair Acres’ exhaustion and pre-emption arguments necessarily fail,” Diamond said.
“Sufficient record evidence supports plaintiffs’ municipal liability action. Here, there is sufficient evidence from which a jury could reasonably find that Fair Acres: (1) Knew that decedent’s comorbidities increased his risk for severe COVID-19 outcomes; (2) understood that frequent testing and prompt isolation of symptomatic residents would reduce that risk; and (3) nonetheless failed to take appropriate measures to protect decedent from contracting COVID, which caused his death. Because a jury could thus infer that Fair Acres was deliberately indifferent to the risk decedent faced, plaintiffs’ Section 1983 claim survives summary judgment.”
However, Diamond did concur with the defense that the wrongful death claim should be dismissed.
“Finally, Fair Acres urges that plaintiffs cannot seek remedies under Pennsylvania’s Wrongful Death Act for their Section 1983 claim. I agree. A Section 1983 plaintiff ‘cannot sue for the deprivation of another’s civil rights.’ Here, plaintiffs properly assert their father’s Section 1983 claims on their father’s behalf in their representative capacities as co-administrators of his estate. Because Section 1983 is ‘silent on the method of redress,’ plaintiffs seek damages (in part) through a wrongful death action. This position, however, ‘conflates the provisions of federal and state statutes that set out different remedies to redress different injuries for different claimants,”
“In allowing a decedent’s family members to ‘recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another,’ a wrongful death action provides a mechanism for family members to vindicate their own rights – not the rights of the deceased. Accordingly, these Section 1983 plaintiffs cannot seek redress for violations of their father’s rights through a wrongful death action. I will thus grant Fair Acres’ motion for summary judgment on plaintiffs’ Section 1983 wrongful death claim.”
For a count of survival (through deprivation of civil rights), the plaintiffs are seeking compensatory damages in excess of $75,000, plus interest, costs and attorneys’ fees.
The plaintiffs are represented by Jordan M. Solarz, Thomas R. Anapol, Robert George Devine Jr., Kila B. Baldwin and Stephen J. Pokiniewski of Anapol Weiss, in Philadelphia.
The defendants are represented by Alexandra Woolsey, Sean Patrick O’Mahoney and William J. Mundy of Burns White, in West Conshohocken.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-01617
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com