Testa v. Broomall Operating Co., L.P., 2022 U.S. Dist. LEXIS 147856 (E.D. Pa. August 18, 2022) (Marston, J.) Testa claims that Broomall’s failure adequately to prepare for pandemic and negligence in caring for elderly patients in the early days of the COVID-19 pandemic proximately caused Ms. DeMarco’s death. Before the court was Broomall’s motion to dismiss. The motion was denied. This is the first case I have seen on the subject. Governor Wolf issued a proclamation trying to give immunity to nursing homes on March 6, 2020. By April 18, apparently of 2020, Broomall reported 49 positive cases. The National Guard deployed medics and nurses to Broomall. Broomall executives asked the National Guard to leave April 22nd, just four days after they arrived. Ms. DeMarco passed away the same day. By May 26th, 155 residents of Broomall had contracted COVID-19 and 43 had died from the virus. Broomall allegedly had inadequate infectious disease protocol. The Pennsylvania Department of Health inspected Broomall six (6) times and identified 18 deficiencies and fined Broomall $7,036. On June 1, 2020, the Department of Health conduced an on-site COVID-19 investigation. Based on observations, the Department of Health concluded that Broomall failed to ensure that personnel were wearing proper protective equipment, used correctly, and that infection control practices were maintained. Broomall had many shortcomings set forth in this opinion. Congress passed PREP Act in 2005 to shield individuals from liability in public health emergencies. Broomall argues that PREP Act immunizes Broomall from liability. The court disagreed and found that it did not afford such immunity. The PREP Act immunizes covered individuals from claims related to the administration to or use of a covered countermeasure. Claims like plaintiff’s are outside that Act’s protection. Broomall argues that the court should reject the case law and instead rely upon the Advisory Opinion by the Department of Health General Counsel, which was more broad. This court is persuaded by the approach of other courts in the Circuit, and finds that the PREP Act provides immunity only for the use of covered measures, not the non-use. The non-use of countermeasures are set forth: (1) Broomall failed to establish infection prevention and control programs; (2) failed to establish written policies to prevent spread of communicable diseases; (3) failed to adequately train staff; (4) failed to ensure staff and residents were social distancing; (5) failed to store and clean linens; (6) failed to provide staff with PPE; and (7) failed to adequately staff the facility. Testa’s claims are not preempted by the PREP Act. The court cited the Third Circuit in Maglioli, 16 F.4th at 400. The Third Circuit determined the cause of action for willful misconduct or exclusive federal cause of action and cannot be maintained in state court to the extent the claims are for willful misconduct as defined by the PREP Act. Here, Testa did not bring claim for willful misconduct. This is a claim for negligence, gross negligence, reckless indifference. Defendant argued for complete preemption. The Pennsylvania Emergency Management Services Code immunizes agencies of the Commonwealth against negligence related to the provision of emergency services. 35 Pa. C.S. § 7704(a). Governor Wolf declared COVID-19 a disaster pursuant to the Emergency Management Services Code. The Governor then issued another order extending the immunity. The language of the order makes it clear it immunizes only individuals, not entities. Therefore, Broomall is not covered.
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