By Matthew Santoni

Law360 (March 8, 2021, 8:13 PM EST ) A Pennsylvania state court judge tossed aside a Pittsburgh-area nursing home's arguments on Monday that it was immune from a former housekeeper's COVID-19 wrongful death suit under federal law, after federal courts had twice kicked the case back to the state court with rulings that the federal law didn't apply.

Several hours after video arguments on Monday afternoon, Allegheny County Court of Common Pleas Judge Christine A. Ward denied preliminary objections from Comprehensive Healthcare Management Services LLC, which runs the Brighton Rehabilitation and Wellness Center in Beaver County and is accused of mishandling the pandemic's effects, resulting in the underlying lawsuit from the estate of Elizabeth Wiles and its administrator Vanessa Sherod.

Judge Ward's order did not explain why the objections were overruled.

CHM had argued that the federal Public Readiness and Emergency Preparedness Act protected the decisions it made related to its handling of the virus, while the Pennsylvania Workers' Compensation Act kept it from being sued for claims covered by workers' compensation.

Because Brighton had given in to demands and provided its nursing staff with face masks in early April, the nursing home had taken actions that fell under the umbrella of the PREP Act — a law protecting health care providers for decisions they make to protect against a health emergency — rather than just "inaction" that the federal court had previously said wasn't covered.

"It is still our position that this court can apply the PREP Act … and still find that immunity applies in this situation," said Andrew Kimball of Gordon & Rees LLP, representing CHM. "There was some action, … the type of conduct intended to be covered by the PREP Act."

Elizabeth A. Bailey of Saltz Mongeluzzi & Bendesky, representing Wiles, pointed to the federal court's rulings that the PREP Act didn't cover cases of inaction. CHM's purported action at Brighton — issuing masks to nurses but not to all employees — did not fall into an exemption for the selective allocation of scarce resources because CHM hadn't claimed that it couldn't provide enough masks for everyone. Many of the issues of fact or immunity that CHM or housekeeping contractor Healthcare Services Group Inc. had raised were not appropriate for preliminary objections and should be addressed later in the case, she argued.

The lawsuit claims that Brighton was especially vulnerable to the pandemic due to its alleged failures to have adequate staffing, protective gear and plans for controlling infectious diseases even prior to the COVID-19 outbreak that sickened nearly 370 residents and staff at the nursing home. Management had downplayed the seriousness of the virus and did not inform people when cases began to appear at the facility, the suit said.

Wiles, who worked primarily on the facility's laundry under a contract with Healthcare Services, had allegedly raised concerns about her vulnerability to the virus but was told to keep coming to work. She died from COVID-19 on May 10, according to the suit.

John Campbell of Cipriani & Werner, representing Healthcare Services, said that the Workers' Compensation Act kept Wiles from suing her employer because workers' compensation coverage includes "occupational diseases," and COVID-19 could fall under a catchall provision of the law's definition of such diseases. Kimball added that Brighton was also covered as an employer.

But Bailey countered that COVID-19 was not an "occupational disease," in that people who work in nursing homes — particularly in the laundry services for those nursing homes — were not at a greater risk of catching the coronavirus than the public at large just because of their occupation. And Brighton's immunity as Wiles' "statutory employer" had to be proven with a later examination of the contract between CHM and Healthcare Services, she said.

Kimball also argued that punitive damages for negligence were inappropriate given the scale of the pandemic and the difficulty of knowing how serious it was at first.

"This is an unprecedented, worldwide pandemic. What happened at Brighton is a very small, small speck of what happened nationally, or worldwide," Kimball said. "The assertions deal with the first two weeks of the shutdown, when nobody knew what we were dealing with."

The severity of the pandemic was not enough to excuse CHM's prior failures at Brighton, Bailey said, adding that it could not rely on public awareness of the disease to duck claims it had misled workers or hidden the extent of the problem before it spiraled out of control enough that it became public knowledge.

"The fact that this information was in the public was not because Brighton was being transparent," she said. "Brighton set itself up to be a perfect storm for any kind of infection to spread."

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

CHM, Brighton and its associated companies and executives are represented by Andrew G. Kimball and Erica Kelly Curren of Gordon & Rees LLP.

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

The case is Sherod v. Comprehensive Healthcare Management Services LLC et al., case number GD-20-007319, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Steven Edelstone.

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