By Dave Simpson

Law360 (April 1, 2021, 9:37 PM EDT ) An Illinois federal judge told a nursing home Thursday that it must face negligence and willful misconduct claims brought by the family of a woman who was one of at least 12 residents who died during a COVID-19 outbreak, ruling that the pleadings are strong enough to avoid dismissal at this stage.

U.S. District Judge Thomas M. Durkin said it is too early in the case to tell if Westchester Health and Rehabilitation Center — a long-term care facility that had 47 confirmed cases of COVID-19 and at least 12 deaths — is shielded by an executive order from Gov. J.B. Pritzker. He declined to dismiss the suit from the family of Carrie Claybon, who died in March 2020.

The executive order in question protects facilities from liability, except in cases of "gross negligence or willful misconduct" if those facilities rendered assistance to the state by providing health care services during the pandemic.

"The problem with this argument is that whether Westchester actually assisted the state in response to the pandemic is a factual question that cannot be resolved at this stage in the proceedings," the judge said.

Westchester, in attempting to nix the suit, said that it "attempted" to assist the state, the judge said. It attempted to increase the number of beds, preserve protective equipment, and take the necessary steps to treat COVID-19 patients, the facility argued.

"This argument raises more questions than it answers — did the attempt succeed?" the judge asked. "What was the scope of the attempt? When did the attempt occur? Although Westchester filed an affidavit in support of its motion, the affidavit is barebones and does not shed any light on Westchester's 'attempts' to render assistance."

The Claybon family's suit is one of several suits from the families of those who died following the Westchester outbreak.

The families claim that the facility failed to implement proper infection control protocols and negligently allowed symptomatic workers to treat patients without wearing personal protective equipment, in violation of federal health guidelines.

In early March of last year, the families claim, Westchester knew that several of its workers were symptomatic, and that one of its nurses was diagnosed with COVID-19, but that it told all of them to return to work anyway.

Claybon developed a dry cough, developed a fever of 102 degrees, and died a few days later, according to the suit.

In an attempt to nix the misconduct claim, Westchester argued that the Claybons' allegations don't sufficiently demonstrate "wanton and willful" behavior or intentionality.

On Thursday, Judge Durkin disagreed.

"Although discovery will likely bear out what Westchester knew and when, the court can reasonably infer from the allegations in the complaint that Westchester exhibited a reckless disregard for Claybon's health and well-being, or worse, knew that exposing Claybon to symptomatic nurses would cause her to contract the virus," he said.

Among the other suits filed against Westchester was one from Eileen Walsh, the estate administrator for deceased resident Rita Saunders.

Claybon is represented by Michael F. Bonamarte IV and Bryan A. Ruggiero of Levin & Perconti and Robert S. Peck of Center For Constitutional Litigation PC.

The nursing home is represented by Rebecca Coen Barnard of Carden & Tracy LLC.

The cases are Walsh v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04505; Brady v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04500; and Claybon v. SSC Westchester Operating Company LLC, case number 1:20-cv-04507, all in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Y. Peter Kang. Editing by Ellen Johnson.

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