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  • Leitner Varughese Warywoda

2nd Circ. Rules for LVW Keeping Nursing Home COVID Death Suit in NY | 1000s of Suits to Proceed

Updated: Apr 16, 2023

After years of procedural roadblocks and hurdles casted by a conglomerate of high-priced national "hired-gun" law firms retained by the New York nursing home owners and operators, the United States Court of Appeals for the Second Circuit ruled in favor of Leitner Varughese Warywoda, allowing the family of Ana Martinez to pursue its claims of negligence, death and statutory violations to proceed against New York nursing home Our Lady of Consolation in state supreme court.

The federal appellate court decision affects the rights of thousands of families whose loved ones died as a result of negligent infection control issies during the Covid-19 emergency to pursue state negligence lawsuits to obtain justice for their loved ones.

Defendants-Appellants Our Lady of Consolation Geriatric Care Center and related entities (OLOC) appealed a district court's decision to remand the case to state court for lack of federal subject matter jurisdiction. The case centers on a lawsuit brought by Vivian Rivera-Zayas, alleging that OLOC employed poor infection control measures that persisted during the onset of the COVID-19 pandemic, resulting in the death of her mother while in OLOC's care.

OLOC argued that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts Plaintiff's claims, that Plaintiff's claims arise under federal law because of a disputed federal issue, and that OLOC acted under a federal officer when engaging in the conduct. However, the court found that the PREP Act does not completely preempt Plaintiff's claims, and Plaintiff's claims do not arise under federal law in accordance with the Grable & Sons Metal Products test. In addition, the federal officer removal statute does not apply.

The court ultimately found that the district court lacked subject matter jurisdiction over Plaintiff's claims, and the case was properly remanded to state court. This case is one of many similar cases filed against congregate care facilities during the early days of the pandemic, alleging poor infection control measures led to the spread of the virus and death of residents.


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