Hudak v. Elmcroft of Sagamore Hills

William Koballa was a resident of Elmcroft Senior Living, an assisted living facility in Northfield, Ohio, who contracted COVID-19 in the spring of 2020. When his daughters discovered that, despite contrary representations by Elmcroft, his health was rapidly deteriorating, he was rushed to a nearby hospital where he died of complications of COVID-19. On behalf of his estate, one of his daughters filed a lawsuit against Elmcroft in December 2020 in Ohio state court, alleging that her father’s death was the result of Elmcroft’s inadequate infection control policies and procedures and its failure to provide necessary and appropriate medical and personal services, in violation of Ohio tort law and the Ohio Nursing Home Patient’s Bill of Rights.

Elmcroft removed the case from state court to federal court. In the district court, it argued that the Public Readiness and Emergency Preparedness (PREP) Act, a statute enacted in 2005 to encourage the production and distribution of vaccines, “completely preempted” Ms. Hudak’s claims and thus provided a basis for federal-court jurisdiction. In August 2021, the district court rejected Elmcroft’s arguments and remanded the case to state court. Elmcroft appealed the remand order to the Sixth Circuit.

Public Citizen represented Ms. Hudak on appeal. The appellate brief explained that the court lacks appellate jurisdiction over the remand order because the notice of removal did not adequately plead the existence of federal-officer removal jurisdiction and that, in any event, Elmcroft’s federal-officer argument lacks merit. As to complete preemption, the brief explained that the PREP Act has no application to the claims in this case, which do not arise from Elmcroft’s “use or administration” of any “covered countermeasures,” as those terms are used in the PREP Act, but from Elmcroft’s policies of non-use and negligent failure to provide a safe environment for its residents. Moreover, the brief explained, Congress did not confer federal-court jurisdiction over every case that involves the question whether the immunity defense provided by the PREP Act applies to a state-law claim.

In January 2023, the Sixth Circuit ruled in favor of Ms. Hudak. Affirming the district court’s decision, the court held that the PREP Act does not completely preempt state-law claims like Ms. Hudak’s, that Elmcroft was not acting under the direction of a federal officer, and that the Grable doctrine did not apply. The court subsequently denied Elmcroft’s petition for rehearing.