COVID wrongful death suit can proceed in state court

A St. Louis lawyer whose father died after contracting COVID-19 in a nursing home can proceed with his wrongful death suit in Missouri state court, the 8^th U.S. Circuit Court of Appeals ruled Aug. 28.

Zane Cagle, who practices personal injury law at The Cagle Law Firm, filed a lawsuit in St. Louis County Circuit Court alleging that his father, Willis Marion Cagle, had contracted the disease while at the NHC Maryland Heights nursing home and ultimately died from it on June 12, 2020.

The suit alleges the nursing home and related corporate entities were negligent for failing to institute sanitary procedures to prevent the spread of COVID-19 to residents. Although the corporate defendants are based in Delaware, the suit also named several staff members who live in Missouri.

Before the local staff could be served with the petition, the corporations removed it to the Eastern District of Missouri, arguing that there was complete diversity of citizenship because none of staff had been “properly joined and served” as federal law requires.

They also argued that Cagle’s state law claims were preempted by the federal Public Readiness and Emergency Preparedness Act, which Congress passed to protect many businesses from COVID-related liability.

However, Judge Ronnie L. White held that the case should return to state court, which the 8^th Circuit affirmed. The court held that NHC’s “snap removal” didn’t overcome the lack of complete diversity among the named parties.

The PREP Act, the court added, doesn’t create a federal cause of action that would allow the case to remain in federal court.

“The statute affords a federal defense to liability under state law — a rule of ordinary preemption,” Judge Jane Kelly wrote.

David Franklin of Sandberg Phoenix & von Gontard, who argued for the nursing homes, said his clients were reviewing the ruling and considering their next steps.

Mike Campbell of the Thomas Law Offices in Columbia, an attorney for Cagle, and Adam Pulver of the Public Citizen Litigation Group in Washington, D.C., who argued the case on appeal, didn’t immediately respond to a request for comment.

The nursing homes’ arguments drew amicus briefs from the U.S. and Missouri chambers of commerce; the American and Missouri State medical associations; and DRI, a national defense lawyers’ organization. Organizations including AARP and Justice in Aging submitted briefs in support of Cagle.

The case is Cagle v. NHC Healthcare-Maryland Heights LLC, 22-2757.