Mary Friedman was one of many residents of the Montefiore Home in Beechwood, Ohio, who died of COVID-19 during a fall 2020 outbreak. Her daughter, Margaret Friedman, filed a lawsuit against Montefiore in Ohio state court, alleging that her mother’s death resulted from Montefiore’s failure to implement infection–control measures, as well as its deficient care after she contracted COVID-19. The complaint pointed to Montefiore’s failure to follow basic infection–control measures, its forcing of symptomatic employees to work with patients, and its false representations that it had tested symptomatic residents for COVID-19. In fact, an Ohio state health agency determined that samples that Montefiore staff claimed to have retrieved from symptomatic residents and submitted for testing were in reality not collected from those patients at all.
Montefiore removed the lawsuit to federal court, asserting that the Public Readiness and Emergency Preparedness (PREP) Act, a statute enacted in 2005 to encourage the production and distribution of vaccines, “completely preempted” the families’ claims and thus provided a basis for federal-court jurisdiction. It also argued that the onset of the pandemic converted its operations into actions taken under federal-officer direction, qualifying the case for removal to federal court. In July 2022, the district court rejected Montefiore’s arguments and remanded the case to state court. Montefiore then appealed the remand order to the Sixth Circuit.
Public Citizen represents Ms. Friedman on appeal. Our brief explains that Montefiore’s jurisdictional arguments fail under the Sixth Circuit’s decision in Hudak v. Elmcroft of Sagamore Hills and that the complaint’s state-law negligence claim is not a claim for willful misconduct under the PREP Act.
In July 2023, a panel of the Sixth Circuit unanimously agreed, and affirmed the district court’s remand of the case.