Rita Rosen, a resident of the Montefiore Home, a nursing home in Beachwood, Ohio, died of COVID-19 in November 2020. Her son later filed a lawsuit in Ohio state court alleging that her death was a result of Montefiore’s recklessness in failing to implement infection control measures, including by failing to separate positive, symptomatic residents, allowing infected staff to work with vulnerable patients, and by sending fake COVID-19 test samples to a lab to conceal the COVID-19 positivity rate. At least 83 other Montefiore residents also died of Covid-19.
Montefiore removed the action to federal district court in Ohio, 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” Mrs. Rosen’s son’s claims and thus provided a basis for federal-court jurisdiction. In January 2022, the district court rejected Montefiore’s arguments and remanded the case to state court. Montefiore appealed the remand order to the Sixth Circuit.
Public Citizen represents Mrs. Rosen’s son on appeal. In response to an Order to Show Cause issued by the Sixth Circuit, we argued that review of the district court’s remand order is barred by 28 U.S.C. § 1447(d), which bars review of remand orders except where state court cases were removed on specified grounds that were not included in Montefiore’s notice of removal. The Sixth Circuit agreed and dismissed the appeal.