By Matthew Santoni

Law360 (September 10, 2020, 3:59 PM EDT ) A Pittsburgh-area nursing home wasn't acting directly under federal laws, regulations and directions when a housekeeper allegedly contracted COVID-19 at the facility and died, so her wrongful-death lawsuit should be sent back to state court, her family told a Pennsylvania federal court.

The estate of Elizabeth Wiles said Wednesday that the lawsuit against Beaver County, Pennsylvania-based Brighton Rehabilitation and Wellness Center should be remanded to the state court where it was originally filed, despite the nursing home's claims that it should be immune to lawsuits under the federal Public Readiness and Emergency Preparedness Act of 2005 and that it was acting under guidance from the Centers for Disease Control and Prevention for how to handle the pandemic.

"There is no federal question on the face of plaintiff's complaint. Rather, the 'federal question' on which Brighton relies is at most a defense. It does not independently confer jurisdiction to the federal court," Wiles' motion for remand said. "Additionally, Brighton, which had no contract with, no delegation from, and no supervision or control by the United States government, is not entitled to federal jurisdiction as an officer of the United States."

The estate, led by administrator Vanessa Sherod, asked the federal court to remand the case back to the Allegheny County Court of Common Pleas in its filing Wednesday. U.S. District Judge Arthur J. Schwab stayed the case Thursday so that both sides could submit briefs and he decides which court the case belongs in.

The negligence and wrongful death lawsuit claimed that Brighton, already under state scrutiny for understaffing and poor hygiene practices, was utterly unprepared for the COVID-19 pandemic. Brighton failed to change its protocols or provide protective equipment even as cases cropped up at the facility, which by June had 368 patients who tested positive for the disease, 108 positive staff members and 80 deaths linked to the outbreak, the suit said.

Wiles, a 69-year-old cancer survivor working for a housekeeping contractor at the nursing home, said she raised concerns about her vulnerability to the pandemic with her employers but was told to keep coming to work; she contracted the disease and died May 10, two days after the Pennsylvania National Guard intervened at the nursing home to alleviate the understaffing and lack of cleaning, the suit said.

In its notice of removal to federal court, Brighton's parent company, Comprehensive Healthcare Management Services LLC, said the PREP Act and its extensions under the coronavirus pandemic gave it immunity from state or federal claims related to the use of pandemic countermeasures, including masks.

But the estate said citing a federal defense to state-law claims wasn't enough to give the federal court jurisdiction; the claims themselves had to arise out of federal law.

"The mere presence of a federal question in defense theory does not overcome the well-pleaded complaint requirements for this jurisdiction. Not even the possibility of federal preemption of a plaintiff's state law claims is enough to create jurisdiction in federal courts," the estate's brief said. "The only time that a federal preemption defense confers 'federal question' jurisdiction is when a plaintiff's state law claim is completely preempted by federal law."

Brighton also sought removal under "federal officer" jurisdiction, arguing that it had been acting under the guidance of the Centers for Medicare and Medicaid Services and the CDC, which, early in the pandemic, advised that facilities preserve protective gear and said that authorities would not cite them for shortages outside of the facilities' control.

Wiles' estate countered that there needed to be more direction or control from the federal agencies in order for the nursing home to invoke "federal officer" status. There was no contract or enforcement between the agencies and Brighton, and the nursing home's defense was not dependent upon actions it undertook under the agencies' direction or supervision, the estate said.

"Simple acquiescence with the law or regulatory orders, even where complex or extensive, is not enough for federal officer jurisdiction," the brief said. "This limitation is consistent both with the statutory purpose and with common sense — a contrary conclusion would render all law-abiding private entities 'quasi-officers' of the United States government entitled to federal jurisdiction."

Counsel for Brighton and housekeeping contractor Healthcare Services Group Inc. did not immediately respond to requests for comment Thursday. An attorney for the estate declined to comment.

Sherod and Wiles' estate are represented by Robert J. Mongeluzzi, David L. Kwass and Elizabeth A. Bailey of Saltz Mongeluzzi & Bendesky PC.

Brighton and its associated companies and executives are represented by Andrew G. Kimball of Gordon & Rees LLP.

Healthcare Services Group and its associated companies are represented by Jennifer M. Swistak of Cipriani & Werner PC.

The case is Sherod v. Comprehensive Healthcare Management Services Inc. et al., case number 2:20-cv-01198, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Adam LoBelia.

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