UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Linda Barron, Individually and as Executrix of the Estates of Leo and Anna Barron

v. Case No. 22-cv-318-SE Opinion No.

Benchmark Senior Living, LLC

O R D E R

Linda Barron brought claims in state court as the executrix

of her parents’ estates following their deaths due to COVID-19

at Greystone Farm at Salem, which was operated by defendant

Benchmark Senior Living, LLC.1 Benchmark removed the case to this

court and now moves to dismiss Barron’s claims, arguing that the

Public Readiness and Emergency Preparedness Act (“PREP Act”), 42

U.S.C. §§ 247d, et. seq., preempts or provides Benchmark with

immunity from liability for Barron’s claims. Doc. no. 4.

Benchmark argues in the alternative that New Hampshire Revised

Statute Annotated (“RSA”) 21-P:42a provides it with immunity

from liability for Barron’s claims. Barron objects and moves to

1 The caption of Barron’s complaint states that she brings her claims individually and as the executrix of her parents’ estate. The nature of her claims and the allegations in the complaint, however, do not appear to support any claims on Barron’s own behalf. Because neither party addresses the issue and it is not material to this order, the court does not address it again herein. remand the case to state court for lack of subject matter

jurisdiction. Doc. no. 8. For the following reasons, the court

denies both motions.

Background

Leo and Anna Barron, who were husband and wife, were

admitted to Greystone Farm, an assisted living facility in

Salem, New Hampshire, in 2018. They were residents of Greystone

Farm in 2020 when the COVID-19 pandemic caused a public health

emergency in New Hampshire and across the nation. In response to

the pandemic, the Centers for Disease Control and Prevention

(“CDC”) issued protocols to long-term care facilities, including

Greystone Farm, requiring them to institute several practices to

protect their residents from COVID-19. These practices included

the use of personal protective equipment and specific

disinfecting procedures and location requirements for the

administration of aerosol-generating devices. In March 2020,

Benchmark began issuing email bulletins to Greystone Farm

residents and their families, assuring them that all providers

at Greystone Farm were following the CDC’s protocols.

The complaint alleges that despite these representations,

Greystone Farm staff failed to follow the CDC’s protocols. For

example, according to the complaint, the care attendants and

2 clinical staff at Greystone Farm who cared for the Barrons did

not use personal protective equipment during their interaction

with them. Staff also allegedly failed to disinfect Mr. Barron’s

nebulizer machine, removed the machine from his room, and

administered his treatments in community areas in the facility

contrary to the CDC protocols. They also allegedly allowed the

Barrons and other residents to be in community areas without

masks or other protective equipment and did not enforce or

encourage social distancing protocols. In addition, Greystone

Farm allegedly neglected to screen staff or vendors for COVID-19

when they entered the facility and did not adhere to social

distancing protocols.2

Both of the Barrons contracted COVID-19 at the facility.

Leo Barron died on May 29, 2020, and Anna Barron died on May 31,

2020. According to their death certificates, both of their

deaths were caused by pneumonia as a consequence of a COVID-19

infection.

As executrix of her parents’ estates, Linda Barron brought

suit in New Hampshire state court, alleging three claims against

Benchmark: wrongful death (Count I); a violation of the New

Hampshire Patients’ Bill of Rights, RSA 151:21 et seq. (Count

2 For ease of reference, the court will refer to Greystone Farm as “Benchmark” for the remainder of this order.

3 II); and violation of the New Hampshire Consumer Protection Act

(“CPA”), RSA 358-A (Count III). Benchmark removed the case to

this court, asserting both federal-question and diversity

jurisdiction, and further that the federal officer removal

statute,

, provides a basis for this court’s

jurisdiction.

Discussion

Barron moves to remand the case for lack of subject matter

jurisdiction on the ground that her claims are not completely

preempted by the PREP Act, which was the stated ground for

federal question jurisdiction in the notice of removal,3 and that

federal officer removal does not apply in this case. Benchmark

moves to dismiss Barron’s claims on the ground that the PREP Act

defensively preempts the claims and that, even if not, Benchmark

is immune from liability for her claims under the Act and New

3 Complete preemption creates a right of removal on the basis of federal question jurisdiction even when a plaintiff alleges only state law claims if “federal statutory language demonstrates that Congress has manifested a clear intent that claims not only be preempted under the federal law, but also that they be removable.” Palkow v. CSX Transp., Inc.,

(6th Cir. 2005). As discussed further below, Benchmark argues in its motion to dismiss that the court should dismiss Barron’s claims on the grounds of “defensive” preemption. The two preemption doctrines are distinct, and the court notes the difference here for clarity.

4 Hampshire law. Because the motion to remand raises a question as

to this court’s jurisdiction, the court addresses that motion

first.

I. Motion to Remand

Barron’s motion challenges Benchmark’s removal on the basis

of federal question jurisdiction and the federal officer removal

statute. Benchmark, however, also asserted subject matter

jurisdiction based on diversity of citizenship under

. See doc. no. 1 at 3. Barron did not challenge that basis

for removal, either in her motion or in response to Benchmark’s

objection.

Diversity jurisdiction exists under § 1332 when “the amount

in controversy exceeds $75,000 and there is diversity of

citizenship among the parties.” Home Depot U.S.A., Inc. v.

Jackson,

(2019). When, as here, the

defendant is a limited liability company, it is a citizen of

every state where its members are citizens. Disaster Solutions,

LLC v. City of Santa Isabel, P.R.,

(1st Cir.

2021). The jurisdictional amount alleged in the complaint is

ordinarily the amount in controversy for the purposes of

removal.

(c)(2). But if, as in this case, the

complaint does not claim a specific amount of damages due to

5 state practice, removal based on the amount asserted in the

notice of removal is proper when the plaintiff does not contest

the defendant’s assertion and the court does not question it.

Dart Cherokee Basin Operation Co., LLC v. Owens,

,

87-88 (2014); see

(c)(2)(A)(ii).

Based on the allegations in the complaint, Linda Barron is

a citizen of New Hampshire, as were both of her parents. In its

notice of removal, Benchmark asserts that it is a citizen of

Massachusetts because all of its members are citizens of

Massachusetts. Consistent with New Hampshire practice, Barron

does not specify in her complaint the precise amount of a money

sought. Benchmark, however, asserts in the notice of removal

that the damages in the case, if proven, will exceed $75,000.

Barron does not dispute these jurisdictional facts and the court

does not question them.

Based on the above, Benchmark has shown that the court has

subject matter jurisdiction based on diversity of citizenship.

Therefore, the court denies Barron’s motion to remand.

II. Motion to Dismiss

Benchmark moves to dismiss Barron’s claims pursuant to

Federal Rule of Civil Procedure 12(b)(6) on the grounds that it

is entitled to immunity under the PREP Act, 42 U.S.C. § 247d-

6 6d(a)(1), that Barron’s claims are preempted by the PREP Act,

id. at (b)(8), and that Benchmark is immune from Barron’s claims

under New Hampshire law, RSA 21-P:42a. When considering a motion

to dismiss under Rule 12(b)(6), the court accepts the factual

allegations in the complaint as true and draws reasonable

inferences in the plaintiff’s favor. Cheng v. Neumann,

(1st Cir. 2022).

A. PREP Act

Congress enacted the PREP Act in 2005 in response to the

Severe Acute Respiratory Syndrome (SARS) outbreak of 2003. Krol

v. Cottages at Garden Grove, No. 21-CV-1038 (NAM/ATB),

, at *4 (N.D.N.Y. Aug. 22, 2022). Its purpose was to

“encourage the expeditious development and deployment of medical

countermeasures during a public health emergency by allowing the

HHS [Health and Human Services] Secretary to limit legal

liability for losses relating to the administration of medical

countermeasures such as diagnostics, treatments, and vaccines.”

Cannon v. Watermark Retirement Communities, Inc.,

,

139 (D.C. Cir. 2022) (quotation omitted). “The Act provides

‘covered persons’ with ‘immunity from suit and liability under

Federal and State law with respect to all claims for loss caused

by, arising out of, relating to or resulting from the

7 administration to or the use by an individual of a covered

countermeasure if a declaration’ by the Secretary under the PREP

Act ‘has been issued with respect to such countermeasure.’”

(quoting § 247d-6d(a)(1)). A covered person includes a

“qualified person who prescribed, administered, or dispensed

such countermeasure . . . .” § 247d-6d(i)(2)(B).

PREP Act immunity does not leave potential claimants

without recourse for claims relating to the use of covered

countermeasures. As an alternative remedy when immunity applies,

the Act established the Covered Countermeasure Process Fund. §

247d-6e(a). For such claims, the Secretary of HHS has the sole

authority to administer and provide compensation from that Fund,

and the Act specifies the procedure for compensation. Id. at

(b)(1). In addition, the PREP Act provides an exception to the

immunity when death or serious injury is caused by willful

misconduct. § 247d-6d(d)(1). But, plaintiffs asserting claims

alleging willful misconduct must file an action in the United

States District Court for the District of Columbia. § 247d-

6d(e)(1).

1. COVID-19

In March 2020, the Secretary of HHS issued a declaration

under the PREP Act (the “COVID-19 Declaration”) that triggered

8 “‘immunity for activities related to medical countermeasures

against COVID-19.’” Saldana v. Glenhaven Health Care LLC,

(9th Cir. 2022) (quoting Declaration Under the

Public Readiness and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19,

(Mar. 17, 2020)). The COVID-19 Declaration defined

covered countermeasures as “any antiviral, any other drug, any

biologic, any diagnostic, any other device, or any vaccine, used

to treat, diagnose, cure, prevent, or mitigate COVID-19 . . . or

any device used in the administration of any such product, and

all components and constituent materials of any such product.”

, 15202. Consistent with the PREP Act’s

language, the COVID-19 Declaration stated that immunity applies

to covered persons “with respect to administration or use of a

Covered Countermeasure.” Id. at 15199. To date, there have been

10 amendments to the original Declaration, each of which expands

or clarifies its scope. Trio v. Turing Video, Inc., No. 1:21-cv-

04409,

, at *10, n.4 (N.D. Ill. Sept. 26, 2022).

In addition, the HHS’s Office of General Counsel (“OGC”) has

issued Advisory Opinions related to the Declaration. Carroll v.

Comprehensive Healthcare Mgmt. Servs., LLC, No. CV 22-686,

, at *7 (W.D. Pa. Aug. 16, 2022), report and

9 recommendation adopted, No. 2:22CV686,

(W.D.

Pa. Nov. 22, 2022).

2. Immunity Under the PREP Act

As stated above, the PREP Act provides “covered persons”

with immunity from suit and from liability for claims brought

under state and federal law for “loss caused by, arising out of,

relating to, or resulting from the administration to or the use

by an individual of a covered countermeasure.” § 247d-6d(a)(1);

see also § 247d-6d(a)(2)(B). Benchmark argues that it is immune

under the Act from liability for each of Barron’s claims.

Barron does not dispute for the purposes of the instant

motion that Benchmark is considered a “covered person” under the

PREP Act. She argues that Benchmark is not immune from liability

for her claims under the Act, however, because her claims were

not caused by and do not relate to “the administration to or the

use by an individual of a covered countermeasure.” She argues

that, to the contrary, her complaint alleges that Benchmark

negligently failed to use covered countermeasures, and that such

inaction does not fall within the PREP Act’s purview.

The issue presented here — whether a plaintiff’s allegations

of a nursing home’s or assisted living facility’s failure to use

covered countermeasures in response to COVID-19 trigger the PREP

10 Act’s immunity provision — is not one of first impression. Courts

that have considered the issue have overwhelmingly held that the

PREP Act does not provide a defendant with immunity from

liability for claims like Barron’s. See Coleman v. Intensive

Speciality Hosp., LLC, No. CV 21-0370,

, at *7

(W.D. La. Dec. 19, 2022) (denying the defendant’s motion to

dismiss based on immunity under the PREP Act because the

complaint alleged negligence in failing to follow COVID-19

protocols, “not an improper use of a countermeasure, nor a

decision to provide the countermeasure to other patients instead

of” the plaintiff); Testa v. Broomall Operating Co., L.P., No. CV

21-5148-KSM,

, at *5 (E.D. Pa. Aug. 18, 2022)

(“Although the PREP Act immunizes individuals who used covered

countermeasures, it does not shield covered individuals who

failed to use covered countermeasures.”); Walsh v. SSC

Westchester Operating Co. LLC,

, 744 (N.D.

Ill. 2022) (denying the defendant’s motion for judgment on the

pleadings on immunity grounds because the PREP Act “is designed

to protect those who employ countermeasures, not those who

decline to employ them” (quotations omitted)); Hatcher v. HCP

Prairie Vill. KS OPCO LLC,

, 1160 (D. Kan.

2021), appeal dismissed, No. 21-7017,

(D.C. Cir.

Sept. 28, 2021) (denying the defendant’s motion to dismiss on

11 PREP Act immunity grounds where the plaintiff alleged, among

other things, that the defendant “facility failed to adequately

clean and disinfect common areas” and “that safety protocols were

not carried out”); Ruiz v. ConAgra Foods Packaged Foods, LLC, No.

21-CV-387-SCD,

, at *4 (E.D. Wis. July 20, 2021)

(“Here, because the amended complaint alleges that Ruiz

contracted COVID-19 because of ConAgra’s failure to implement

adequate countermeasures, the PREP Act’s immunity provision does

not apply.”).

Benchmark argues that this interpretation of the PREP Act

contradicts the HHS’s directives. It notes that in the Fourth

Amendment to the COVID-19 Declaration, the HHS Secretary

“[m]akes explicit . . . that there can be situations where not

administering a covered countermeasure to a particular

individual can fall within the PREP Act and this Declaration's

liability protections.” Fourth Amendment to the Declaration

Under the Public Readiness and Emergency Preparedness Act for

Medical Countermeasures Against COVID-19 and Republication of

the Declaration,

-01. Benchmark also asserts that the

HHS OGC’s Fifth Advisory Opinion, which the Secretary

incorporates into the Fourth Amendment, “further confirms that

the PREP Act indeed applies to suits concerning the non-use of

covered countermeasures against COVID-19.” Doc. no. 5 at 10

12 (citing Advisory Opinion 21-01 on the Public Readiness and

Emergency Preparedness Act Scope of Preemption Provision

(January 8, 2021) (“Fifth Advisory Opinion”)).

Benchmark is correct that both the Fourth Amendment and

Fifth Advisory Opinion show that “an inaction claim is not

necessarily beyond the scope of the PREP Act.” Ruiz,

, at *4 (quotation omitted). But it is equally clear that

the Act does not cover all inaction claims. “The language of the

PREP Act itself supports a distinction between allocation which

results in non-use by some individuals, on the one hand, and

nonfeasance, on the other hand, that also results in non-use.”

Fifth Advisory Opinion, p. 4, available at

https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-

documents/2101081078-jo-advisory-opinion-prep-act-complete-

preemption-01-08-2021-final-hhs-web.pdf. Thus, “inaction or

failure-to-administer resulting from prioritization falls within

the scope of the PREP Act. However, as the Advisory Opinion

clarifies, the PREP Act’s coverage does not extend to inaction

or failure-to-administer resulting from of non-feasance.” Mann

v. Arbor Terrace at Cascade, LLC, No. 1:20-CV-02325-SCJ,

, at *4 (N.D. Ga. Apr. 13, 2021); see Walsh, 592 F. Supp.

3d at 744 (noting that the PREP Act “distinguish[es] between

misfeasance and nonfeasance” because the Act “is designed to

13 protect those who employ countermeasures, not those who decline

to employ them”).

Here, Barron’s complaint does not allege that her parents

contracted COVID-19 due to Benchmark’s prioritization or

allocation of covered countermeasures to other residents.

Rather, Barron alleges that Benchmark failed to act in

accordance with the standard of care, and that this failure led

to her parents’ illness and death. The PREP Act does not provide

Benchmark with immunity from liability for those claims.4 See,

e.g., Ruiz,

, at *5.

3. Defensive Preemption

In the alternative, Benchmark argues that the court should

dismiss each of Barron’s claims “due to express statutory

defensive preemption under subsection (b)(8) of the PREP Act.”

Doc. no. 5 at 21. Defensive or “ordinary” preemption “is an

affirmative defense that exists where federal law explicitly or

implicitly displaces state law within a given scope; it can

4 The court notes that Benchmark raises the PREP Act immunity defense at the motion to dismiss stage, where the court considers only the allegations in Barron’s complaint while resolving all inferences in her favor. The court’s ruling as to whether the Act’s immunity provisions apply in this case is limited to the standard of review applicable to Benchmark’s motion.

14 defeat liability for a state law claim.” Martin v. Petersen

Health Operations, LLC, No. 1:20-CV-1449,

, at *6

(C.D. Ill. Sept. 22, 2021), aff’d,

(7th Cir.

2022). Preemption is express “when Congress has ‘unmistakably

. . . ordained’ that its enactments alone are to regulate a

subject, and state laws regulating that subject must fall.”

Massachusetts Ass’n of Health Maint. Organizations v. Ruthardt,

(1st Cir. 1999) (quoting Jones v. Rath Packing

Co.,

(1977) (alterations and further quotation

omitted)).

Section (b)(8) of the PREP Act, on which Benchmark relies,

is titled “Preemption of State Law.” It provides that, during

the period where the Secretary of HHS issues a declaration,

no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that—

(A) is different from, or is in conflict with, any requirement applicable under this section; and

(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other

15 provision of this chapter, or under the Federal Food, Drug, and Cosmetic Act.

§ 247d-6d(b)(8).

Benchmark contends that this provision of the PREP Act

precludes Barron from pursuing her New Hampshire state law

claims for wrongful death, violation of the Patients’ Bill of

Rights, and violation of the CPA. Specifically, Benchmark argues

that these claims impose legal requirements that are different

from or in conflict with the PREP Act requirements and relate to

the “use . . . or administration by qualified persons of the

covered countermeasures.” Doc. no. 5 at 22 (quoting § 247d-

6D(b)(8)). It is wrong.

Section (b)(8) of the PREP Act “restricts any state from

passing a law that conflicts with the federal government’s

requirements” as provided in the Act. Est. of Maglioli v.

Andover Subacute Rehab. Ctr. I,

, 530–31

(D.N.J. 2020), aff’d sub nom. Maglioli v. All. HC Holdings LLC,

(3d Cir. 2021). “This language indicates not that

any and all state claims related to COVID-19 are preempted, but

only those that conflict with or differ from the PREP Act are

preempted.” Khalek v. S. Denver Rehab., LLC,

, 1026 (D. Colo. 2021).

Benchmark’s defensive preemption argument is a red herring;

a rehash of its claim for immunity dressed in different clothes.

16 Section (b)(8) of “the PREP Act clearly preempts incompatible

state laws.” Martin,

, at *6. But Benchmark

identifies no such New Hampshire law. It does not demonstrate

how the standard of care underpinning Barron’s claims is

incompatible with the requirements under the PREP Act. Rather,

its argument in favor of defensive preemption is based on the

same mistaken belief that undermines its argument in favor of

immunity — that Barron’s claims relate to Benchmark’s

administration and use of covered countermeasures in response to

the COVID-19 pandemic. For the reasons outlined above, Barron’s

claims do not rely on those allegations and so that argument

fails. So too does Benchmark’s preemption defense.5

B. State Statutory Immunity

Benchmark also contends that it is entitled to immunity

from liability for Barron’s state law claims based on RSA 21-

P:42-a. That statute provides that facilities like Benchmark

“are deemed to have been engaged in preparing for and/or

5 Benchmark also briefly argues that the court should dismiss Barron’s claims because she failed to exhaust her administrative remedies under the PREP Act because she did not file a claim under the Covered Countermeasure Process Fund. § 247d-6e(b)(1). Because Benchmark is not entitled to immunity under the PREP Act, the administrative requirements for making a claim under the compensation fund do not apply in this case.

17 carrying out ‘emergency management’ functions for the purposes

of RSA 21-P:35 when complying, or reasonably attempting to

comply, with any executive order, agency order or rule.” Those

facilities shall not be “liable for the death of or injury to

persons . . . as a result of such compliance or reasonable

attempts to comply with such an emergency order or rule under

this section.” Id.

Benchmark points to Executive Order 2020-04, in which

Governor Sununu declared a state of emergency due to COVID-19 in

March 2020. It also cites several guidelines that the Division

of Public Health and the CDC issued to care facilities and

employers relating to efforts to stop the spread of COVID-19.

Benchmark contends that it is immune from Barron’s claims

under RSA 21-P:42-a because the allegations in the complaint are

based on the Benchmark’s compliance with or attempts to comply

with emergency orders or rules relating to efforts to stop the

spread of COVID-19. As explained above, however, Barron’s claims

are based on allegations that Benchmark did not comply or

attempt to comply with those orders and rules. Therefore,

Benchmark has not shown that it is entitled to immunity under

RSA 21-P:42-a.

18 Conclusion

For the foregoing reasons, Barron’s motion to remand

(document no. 8) and Benchmark’s motion to dismiss (document no.

4) are denied.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge February 6, 2022

cc: Counsel of record.

19