SAN FRANCISCO — A federal judge in California correctly held that the Public Readiness and Emergency Preparedness (PREP) Act completely preempts state law claims and immunizes a senior living facility from liability in the COVID-19-related death of a resident, the licensees and operators of a facility say in a June 9 brief asking the Ninth Circuit U.S. Court of Appeals to affirm the judge’s denial of the family’s motion to remand and dismissal of the case against them.
PHILADELPHIA — A biotechnology company shareholder filed a securities class action lawsuit against the company and certain of its senior executives in Pennsylvania federal court on June 17, alleging that the defendants violated federal securities laws by misrepresenting the company’s agreement to develop a COVID-19 vaccine with an Indian biotechnology company.
TAMPA, Fla. — In a lawsuit brought by the state of Florida seeking to invalidate the Centers for Disease Control and Prevention’s COVID-19-related ship cruise prohibition, a Florida federal judge on June 18 preliminarily enjoined the CDC from enforcing the prohibition against cruise ships arriving in or departing from Florida but stayed the order until July 18.
SAN ANTONIO — A Texas appellate court on June 16 affirmed a lower court’s denial of a motion to dismiss two COVID-19-related wrongful death and negligence suits against the owners and operators of a nursing home, finding that it lacked jurisdiction to review their argument that the claims are preempted and that they failed to preserve their argument that the expert report submitted by the estates is insufficient.
CHICAGO — A federal judge in Illinois on June 15 denied an insurer’s motion for certification of interlocutory appeal of his refusal to dismiss business interruption coverage and bad faith claims brought against it in three bellwether lawsuits arising from the governmental shutdown of hospitality businesses in the wake of the coronavirus pandemic.
BOSTON — Whole Foods workers who filed a putative class complaint under Title VII of the Civil Rights Act of 1964 after being disciplined when they wore Black Lives Matter (BLM) masks and other attire failed to show disparate treatment or impact and didn’t even identify their races, “which alone justifies dismissal,” Whole Foods Market Inc. and Amazon.com Inc. argue in their appellee brief filed June 9 in the First Circuit U.S. Court of Appeals.
HOUSTON — More than 100 employees of a Texas hospital who face being fired for refusing to get one of the available COVID-19 vaccines filed a notice on June 14 of their appeal to the Fifth Circuit U.S. Court of Appeals after a Texas federal judge dismissed their wrongful discharge case two days earlier, finding that employees in Texas are protected from termination only where they refuse to carry out a criminal act.
BROOKLYN, N.Y. — Residents of an assisted living facility who filed a putative class complaint alleging that the facility’s response to the COVID-19 pandemic violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) filed a notice of appeal on June 10, approximately one month after a New Jersey federal judge dismissed the complaint for failure to sufficiently plead that they have been discriminated against because of their disabilities and “to articulate a nexus between the disabilities and the reasonable accommodations requested.”
ALEXANDRIA, La. — Saying that he was unable at this stage to determine as a matter of law that each of the Plaintiff’s claims relate to “‘the administration or the use by an individual of a covered countermeasure’” under the Public Readiness and Emergency Preparedness (PREP) Act, a Louisiana federal judge on April 30 denied a motion to dismiss a resident’s suit alleging that the facility was negligent in connection with her contracting COVID-19, ordering limited discovery on whether the PREP Act encompasses the claims.
WASHINGTON, D.C. — The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) on June 10 announced a COVID-19 emergency temporary standard (ETS) for health care workers, including those working in nursing homes and home health care, with some exemptions where patients who have COVID-19 may be screened out.
Two judges in the U.S. District Court for the Southern District of California recently remanded COVID-19-related negligence, wrongful death, elder neglect and nursing home residents rights suits against long-term care facilities to state court, finding no federal jurisdiction under the Public Readiness and Emergency Preparedness (PREP) Act.
GREENBELT, Md. — Vaccine manufacturer Emergent BioSolutions Inc. and certain of its current and former senior executives violated federal securities laws by misrepresenting the company’s ability to manufacture millions of doses of COVID-19 vaccines and its emphasis on quality controls before the company’s forced destruction of million of doses of vaccines due to possible contamination, a shareholder alleges in a securities class action complaint filed June 2 in Maryland federal court.
HOUSTON — A federal judge in Texas on June 4 denied a motion for a temporary restraining order (TRO) sought by 116 employees of a hospital who allege that they are facing imminent firing for refusing to get one of the currently available COVID-19 vaccines, finding that the TRO would “disserve the public interest.”
DETROIT — An attorney who alleges that her firing during the early days of the coronavirus pandemic constituted Family and Medical Leave Act (FMLA) retaliation may pursue only her state law claims in state court as the federal claim is foreclosed by the fact that the firing occurred before the date the applicable provisions of the Families First Coronavirus Response Act (FFCRA) went into effect, a federal judge in Michigan ruled June 4, dismissing the FMLA claim with prejudice and declining to exercise supplemental jurisdiction over the remaining claims.
ASHEVILLE, N.C. — A federal judge in North Carolina in a June 1 order denied a request by a woman convicted of defrauding a federally insured financial institution for an early release from federal prison to care for her elderly father and because of the coronavirus pandemic.
PROVIDENCE, R.I. — A Rhode Island judge on June 4 granted in part and denied in part an insurer’s motion to dismiss a nightclub operator insured’s coronavirus coverage dispute, finding that the insured sufficiently stated a claim for civil authority coverage and that the insurer has failed to satisfy its burden of proving that the virus exclusion applied to bar coverage for the insured’s civil authority coverage claim.
MINNEAPOLIS — A barbershop owner insured on June 4 asked a federal judge in Minnesota to deny an insurer’s request to amend a June 2 order that partly denied the insurer’s motion to dismiss the insured’s coronavirus coverage lawsuit, arguing that the insurer fails to establish that this lawsuit is exceptional enough to warrant interlocutory appeal.
AKRON, Ohio — A federal judge in Ohio on June 3, in response to a motion by a group of landlords and a national home builders’ association to clarify or amend his prior declaratory judgment that the Centers for Disease Control and Prevention’s order imposing a nationwide ban on evictions during the COVID-19 pandemic exceeded the agency’s authority, amended the judgment to state that the judgment binds the parties and the members of the association, wherever they may be. The plaintiffs filed their motion after the CDC stated in a press release that the judge’s original decision applied only to the particular plaintiffs in the case.
PHILADELPHIA — A former nursing home employee who alleges that his complaint about the lack of personal protective equipment (PPE) after a resident tested positive for COVID-19 in April 2020 was used to oust him may proceed with a Families First Coronavirus Relief Act (FFCRA) interference claim as a question of material fact remains regarding whether he quit or was fired, a federal judge in Pennsylvania ruled June 4.
SAN ANTONIO — A disability insurer should be ordered to pay a claimant more than $70,000 in past long-term disability (LTD) benefits, in addition to future LTD benefits, because the claimant’s respiratory illness prevented him from wearing a face mask, required by his employer in response to the COVID-19 pandemic, the claimant says in a May 26 complaint filed in Texas federal court.