Immunity claim dashed, for now, in COVID death suit

The Missouri Supreme Court ruled on March 5 that a pandemic-era wrongful death lawsuit can continue for now despite the defendant nursing home’s claim of immunity.

The decision was unanimous, but three of the court’s seven judges concurred “reluctantly” and said the court should change its rules to allow for faster determinations of such defenses.

“No matter how justifiable the actions of the circuit court and this Court may be, the result in this matter does not serve well these parties, the efficient administration of justice, or the policy the state and federal immunity statutes were intended to promote,” Judge Paul C. Wilson wrote. “I write separately to suggest this Court can and should do better.”

The case stems from the death of Mary Gray at the Clinton Healthcare and Rehabilitation Center in November 2020. Her daughter, Donna Yarnell, alleged in Henry County Circuit Court that Gray’s roommate exposed her to COVID-19, which proved fatal.

The nursing home’s operator, Clinton No. 1 Inc., argued it was immune from suit under the federal Public Readiness and Emergency Preparedness Act. Judge Robin Ransom, writing for the court’s majority, said the act did not apply because Yarnell’s petition doesn’t allege her mother’s death was related to a diagnostic test, vaccine or other COVID countermeasure. The petition itself alleges Gray was placed with a roommate despite her contractual agreement to have a single room and in violation of the home’s COVID protocols.

The defense had submitted an affidavit from a nursing home official who said it had divided the facility into COVID-positive and -negative groups and had placed those who tested negative together, including Gray and her roommate.

Ransom, however, said a motion to dismiss is supposed to involve only the facts alleged in the petition standing alone, and there was no indication that Judge Brandon Baker considered the facts alleged in the affidavit when he refused to dismiss the suit.

“Absent framing from the affidavit, no covered countermeasure is implicated in the petition, and the PREP Act does not bar Yarnell’s claim at this stage of litigation,” Ransom wrote.

Wilson — joined by Chief Justice Mary R. Russell and Judge Ginger Gooch — argued in the concurrence that the current Rules of Civil Procedure prevented the immunity claim from being addressed at the outset of the case as lawmakers intended.

The rule gave the judge the discretion to take account of the affidavit, but doing so would have converted the matter into a more litigation-intensive motion for summary judgment. Yet the plaintiffs’ lawyer “was under no obligation to tee this issue up in the petition” by including facts that were helpful to the defense’s immunity claim, Wilson wrote.

Instead, Wilson suggested the rule be revised to allow for limited discovery and quick resolution of threshold legal issues, such as immunity claims, “that have nothing to do with the merits of an action but that often require a factual basis unlikely to be asserted in the petition.”

Clinton also had claimed immunity under Missouri state law, but the Supreme Court made short work of those arguments. The nursing home had cited the Missouri Emergency Management Act, which governs emergencies declared by the governor, but the court said nothing indicated that the home was “deployed” by the state in the manner required by the statute.

The home also cited the state’s COVID-19 Liability Protections Act. That law, however, doesn’t provide immunity for recklessness or willful misconduct, and the court said the allegation that the home placed Gray with an infected roommate would meet that standard if proven.

The legislature passed the COVID law in 2021 as the pandemic was coming to an end. Both Gray’s death and the filing of the lawsuit predated its effective date. The court declined to say whether the COVID law could be applied retroactively.

The case is State ex rel. Clinton No. 1 Inc. v. Baker, SC100099.