The families of four residents of nursing home Montefiore Home who died of COVID-19 filed lawsuits against Montefiore in Ohio state court. Their lawsuits alleged that the deaths were 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.
Montefiore removed the actions 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. In December 2021, 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 the families 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 the notices of removal in these cases. We filed a motion to dismiss the appeals on the same grounds. The Sixth Circuit agreed and dismissed the appeals. Ariel Hyman, Montefiore’s former administrator, then filed a petition for rehearing and rehearing en banc, to which we responded. That petition was denied.