Palma v. Cabrini of Westchester

Background

Angelina Palma sued Cabrini of Westchester, doing business as St. Cabrini Nursing Home, along with unidentified corporate owners and operators, in New York Supreme Court, Westchester County. She brought the action as administrator of the estate of her father, Felice Palma, who died from COVID-19 on May 7, 2020, while at Cabrini. The complaint alleged that Cabrini failed to implement adequate policies, procedures, and staffing before the pandemic; failed to respond properly after the pandemic began; and failed to treat Felice Palma properly.

The complaint asserted claims under New York Public Health Law and claims for negligence, negligence per se, gross negligence, conscious pain and suffering, wrongful death, and nursing-home malpractice. Cabrini removed the case to federal court. Palma moved to remand, meaning she asked the federal court to return the case to state court.

Federal-officer removal

Cabrini argued that removal was allowed under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), because it acted at the direction of the Centers for Disease Control and Prevention and the Department of Health and Human Services when developing and implementing COVID-19 protocols.

The court rejected that argument. It held that the designation of nursing homes as critical infrastructure businesses did not show that Cabrini was carrying out the duties or tasks of a federal officer. Cabrini’s use of federal guidance about facemasks and personal protective equipment showed compliance with federal regulations and guidance, not that Cabrini was acting under a federal official. The materials Cabrini submitted, including an administrator’s declaration and government directives, supported that conclusion.

Public Readiness and Emergency Preparedness Act

Cabrini also argued that the Public Readiness and Emergency Preparedness Act, or PREP Act, completely preempted Palma’s claims and created federal jurisdiction. Complete preemption is a narrow doctrine that can transform a state-law claim into a federal claim for jurisdictional purposes.

The court held that the PREP Act did not completely preempt Palma’s claims. The court described the PREP Act as an immunity statute that does not create rights, duties, or obligations and does not provide the exclusive cause of action for the claims at issue. Palma alleged negligence, nursing-home malpractice, wrongful death, and related state-law claims based on Cabrini’s alleged failure to separate residents, enforce distancing and mask rules, and take other precautions. She did not allege claims based on administering or using covered drugs, biological products, or devices.

The court also held that Palma’s allegations of willful or wanton conduct did not become PREP Act claims for willful misconduct because they were not based on administering or using covered countermeasures. In addition, the court noted that the District Court for the District of Columbia would be the exclusive federal forum for a PREP Act willful-misconduct action, so this court would not have subject-matter jurisdiction over such a claim.

Federal issue under the Grable doctrine

Finally, Cabrini relied on the Grable doctrine, which can allow federal jurisdiction over a state-law claim that necessarily raises an important federal issue. The court held that the doctrine did not apply because none of Palma’s claims necessarily raised a federal issue. The possibility that Cabrini might assert a PREP Act defense did not make the PREP Act an essential element of Palma’s claims.

Disposition

The court concluded that it did not have original jurisdiction over the claims and that removal was improper. The motion to remand was GRANTED. The Clerk was instructed to terminate the motion and remand the case to New York Supreme Court, Westchester County. The initial conference scheduled for August 18, 2022, was cancelled. Judge Vincent L. Briccetti signed the order.