top of page
  • Writer's pictureLeitner Varughese Warywoda

Leitner Varughese Warywoda Argues Bellweather Nursing Home Case before the US Court of Appeals

Leitner Varughese Warywoda Argues Bellweather Case before the US Court of Appeals, Second Circuit to Determine Fate of Thousands of Nursing Home Death Lawsuits


November 03, 2022, 04:12 GMT

A long-running legal battle which will determine whether thousands of families whose loved ones tragically died from Covid-19 in New York nursing homes from alleged inadequate infection control was argued before the U.S. Court of Appeals for the Second Circuit Monday


NEW YORK, Nov. 2, 2022 /PRNewswire-PRWeb/ -- Leitner Varughese Warywoda represents Vivian Rivera-Zayas, the daughter and administrator of the estate of Ana Martinez, who was admitted to Our Lady of Consolation Nursing & Rehabilitation Care Center in West Islip, New York for a short-term stay for physical therapy with the plan to return home after a few weeks. It is alleged that she never left the facility and reportedly died of COVID because of Our Lady of Consolation's failure to implement proper infection control measures in violation of federal and state rules, specifically the "abject and longstanding failure to maintain a system for preventing, identifying, reporting, investigating and controlling infections and communicable diseases," according to the complaint, which is attached. The case is Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center et al., case number 2:20-cv-05153, in the U.S. District Court for the Eastern District of New York.

Our Lady of Consolation, along with two lobbying groups for New York hospitals and nursing home owners, the Greater New York Hospital Association and the Healthcare Association of New York State, previously filed briefs in the Eastern District of New York seeking to dismiss the suit, claiming the Public Readiness and Emergency Preparedness Act (PREP Act) bars lawsuits against nursing homes during a public health emergency. The Hon. Nicholas G. Garaufis, United States District Judge, sided with Leitner Varughese Warywoda, and denied the nursing home's motion to dismiss the lawsuit, allowing it to proceed in New York State Supreme Court (decision attached).

Defendant Our Lady of Consolation appealed to the United States Court of Appeals for the Second Circuit, assisted by a congregation of powerful New York State and national lobbying groups also submitting briefs in favor of the nursing home, including Greater New York Hospital Association ("GNYHA"), the Healthcare Association of New York State, Inc. ("HANYS"), Atlantic Legal Foundation, DRI (Defense Research Institute), The Chamber of Commerce of The United States of America, the American Medical Association, and the Medical Society of the State of New York. The Court of Appeals docket is attached.

"The simple truth here is that Ms. Rivera-Zayas does not allege that her mother died because of "the administration or use of a covered countermeasure" by anyone, but rather because of Our Lady of Consolation's broad failures to adopt effective infection-control policies—policies that are not "covered countermeasures. We eagerly await the Court's Decision so that discovery may commence in these tragic circumstances", stated Brett R. Leitner, counsel for Rivera-Zayas.

Rivera-Zayas is represented by Brett R. Leitner, Justin Varughese, and Nicholas E. Warywoda of Leitner Varughese Warywoda PLLC, with Adam Pulver, an attorney with Public Citizen, a nonprofit consumer advocacy organization based in Washington D.C., on the appeal.

An audio transcript of the argument can be found here:

About Leitner Varughese Warywoda

Leitner Varughese Warywoda is a cutting-edge litigation and trial law firm uniquely experienced in handling high-profile, complex lawsuits involving serious injuries and wrongful death. The Firm has specific interest in handling cases of neglect and abuse involving nursing home residents and medical practices. The firm has recovered over $200 million on behalf of clients that were injured as a result of car and truck accidents, construction accidents (involving New York State Labor Law violations), slip/trip and falls, and nursing and medical negligence. The attorneys' jury verdicts and settlements have been recognized among the top largest personal injury jury verdicts in New York State and in the United States, and have been featured in the Top New York Verdicts and Verdicts and Settlements Hall of Fame publications.

Learn more about Leitner Varughese Warywoda here

Media Contact

Brett R. Leitner, Esq., Leitner Varughese Warywoda PLLC, 1 (212) 671-1110,

SOURCE Leitner Varughese Warywoda PLLC


bottom of page