Tom Hals

(Reuters) – A Federal Appeal Court on Wednesday ruled that two New Jersey facilities must be tried in state court, in a blow to the operators of nursing-homes facing thousands of COVID-19 neglect and wrongful-death suits.

They argued that they belonged in federal Court. This was based on an emergency U.S. law, the Public Readiness and Emergency Preparedness Act. It protects the people who are fighting the pandemic.

The U.S. Circuit Court of Appeals, Philadelphia, affirmed the lower court’s decision and dismissed nursing homes’ arguments that the PREP Act was too broad to cover families. Circuit Court of Appeals Philadelphia affirmed a lower court decision. It rejected nursing home arguments that PREP Act was so broad that family-law negligence claims under the state of Pennsylvania were federal and should be heard in federal court.

The court stated that the families only made state-law claims for “garden-variety” cases. State court was where they belong.

Neil Lapinski, a Gordon, Fournaris & Mammarella attorney who represented the families, said “the court has provided a clear roadmap for litigants” that was consistent with lower court rulings.

Four families who lost loved ones to COVID-19 in their deaths filed the cases in April 2020 in state court. They sued two nursing homes operating as Andover Subacute & Rehabilitation I & II, alleging the facilities failed to take precautions to contain the spread of the virus.

These cases were the first to be brought against nursing homes where over 100,000 died in the pandemic. The cases, like hundreds of other wrongful death lawsuits against nursing homes, stalled over the question of which court should hear them.

Operator claimed it was protected by the PREP Act, and the cases belong in federal court. However, a lower federal court ruled that the case should go to state court. The operator of the nursing home appealed.

The 2005 PREP Act was created to help the United States fight an epidemic like COVID-19. It protects from any lawsuits made by critical product manufacturers, including diagnostic tests, vaccines and doctors, as well of drug distributors. Because they are at the forefront of the outbreak, nursing homes believe the law should protect them.

Adam Pulver from Public Citizen Litigation Group said Wednesday’s ruling may help cases move, and he filed an amicus with the appeals courts.

He stated that the 3rd Circuit was the first to hear appeals and signaled this to all judges across the country.

According to the ruling of the 3rd Circuit, determining whether or not the PREP Act protects nursing homes against pandemic-related lawsuits must be decided by a state court. However, other federal appeals courts will likely address this question in the next months.

Lann McIntyre (a Lewis Brisbois legal representative who represented the nursing homes) declined to comment.

Three Republican appointees heard the appeal – Jane Roth, Michael Chagares and David Porter. They were appointed by President Donald Trump to write the opinion.