Hereford v. Broomall Operating Co.

Countess Galloway, John J. Lynch, Sr., Dorothy P. Johnson, and James A. Smith, Jr. were four of the forty-three residents at Broomall Rehabilitation and Nursing Center in Broomall, Pennsylvania, who died of COVID-19 between March and May 2020. Their families filed separate actions in the Delaware County, Pennsylvania, Court of Common Pleas, alleging that their loved ones died as a result of Broomall’s negligent infection control policies and practices, including its failures to isolate residents who demonstrated symptoms of and/or tested positive for COVID-19, to implement social distancing policies, to undertake contact tracing, to provide staff and residents with appropriate personal protective equipment, and to train its employees as to infection prevention and control policies.

Broomall removed the cases from state court to federal court, arguing that the federal court had jurisdiction because the Public Readiness and Emergency Preparedness (PREP) Act, a statute enacted in 2005 to encourage the production and distribution of certain medical products and devices, “completely preempted” the families’ claims and thus provided a basis for federal-court jurisdiction. Broomall also argued that two Pennsylvania residents had been “fraudulently joined” as defendants and, therefore, that the federal court had diversity jurisdiction. The district court remanded the actions to state court, relying on the Third Circuit’s decision in Maglioli v. Alliance Health Care Holdings and holding that the standard for fraudulent joinder was not met. The court then denied all other pending motions, including a motion to dismiss, as moot. Broomall appealed the Pennsylvania federal court’s decision to the D.C. Circuit, citing a provision of the PREP Act that provides for interlocutory appeals of denials of certain motions to dismiss.

Representing the families on appeal, we filed a motion to dismiss the appeal for lack of jurisdiction, explaining that 28 U.S.C. § 1447(d) bars appellate review of the remand order and the order denying other motions as moot, and that neither the PREP Act nor the collateral order doctrine provides an exception to the statutory bar.