In the spring of 2020, Zachary Solomon received treatment for COVID-19 at St. Joseph Hospital in New York. During his stay, he developed a severe pressure ulcer, which eventually required multiple surgical procedures. He filed a lawsuit against St. Joseph in New York state court, arguing that the pressure ulcer was the result of the hospital’s negligent failure to rotate his position, change his diaper, and care for his skin. St. Joseph removed the case to federal court and moved to dismiss it on the grounds that the PREP Act, a 2005 federal statute that limits liability for injuries caused by certain “covered countermeasures,” and the Emergency or Disaster Treatment Protection Act (EDTPA), a New York state law passed early in the COVID pandemic, barred Mr. Solomon’s claims.
After the district court denied St. Joseph’s motion to dismiss, St. Joseph’s appealed to the Second Circuit. After briefing on the merits was complete, the Second Circuit asked for briefing on the questions (1) whether the Second Circuit had jurisdiction to review the denial of the motion to dismiss and (2) whether the district court had subject-matter jurisdiction over the action at all.
We filed a motion for leave to file an amicus brief on behalf of Vivian Rivera-Zayas, whom we represent in another case pending in the Second Circuit raising related issues. In the proposed amicus brief, we explain that the district court lacked subject-matter jurisdiction because the PREP Act does not completely preempt claims, like Mr. Solomon’s, that they do not arise from injuries caused by pandemic countermeasures identified by the Secretary of Health and Human Services, and because the statute does not completely preempt negligence-based claims like Mr. Solomon’s at all. We also argued that the “Grable” doctrine did not provide federal jurisdiction as federal law, and that the case does not satisfy the requirements of the federal-officer removal statute. Therefore, we explain, the Second Circuit should dismiss the appeal with instructions to the district court to vacate its orders and remand the action to state court.