Nursing homes across the country were a major center of COVID-19 outbreaks throughout 2020, and hundreds of lawsuits have been filed based on alleged inadequate infection control measures, brought by families of nursing home residents under tort law and state consumer protection statutes. So far, much of the litigation has focused on jurisdictional questions. Five circuit courts of appeals have rejected arguments that federal-question and federal-officer removal jurisdiction apply to these cases, and the Supreme Court has denied certiorari in one case. Likewise, state and federal courts have rejected arguments that the PREP Act applies to bar these claims on the merits.
On January 27, the US District Court for the Western District of Washington issued what appears to be the first summary-judgment decision on the merits in one of these cases, over which it has diversity jurisdiction. The court granted summary judgment to defendants as to the plaintiffs’ state-law fraud and misrepresentation claims, finding that state law requires all health-care related claims to be brought pursuant to Washington’s medical negligence statute, and their Washington Consumer Protection Act claims, finding that statute does not provide relief for personal injuries. The court found, though, that the plaintiffs produced sufficient evidence of causation for their claims of medical negligence, wrongful death, and violation of the state’s Abuse of Vulnerable Adults Act. Those claims will proceed to trial
