In briefs filed today, CCL joined the Chicago law firm, Levin & Perconti, in opposing motions to dismiss and motions to strike complaints filed in the U.S. District Court for the Northern District of Illinois over COVID-19 deaths and injuries in a single nursing home.

     The cases involved three different residents, two of whom died, because the nursing home failed to take necessary precautions to avoid infecting residents with the coronavirus. Last year, as the pandemic was surging, Illinois Governor J.B. Pritzker issued two executive orders changing the civil liability standard for certain health care providers rendering assistance to the State in fighting COVID-19. If valid and applicable, the executive orders replaced existing negligence standards with "gross negligence and wanton misconduct" for liability to attach. In the three cases, the plaintiffs pleaded both the negligence and a willful and wanton standard in separate counts. The defendant nursing home sought to dismiss both counts, arguing that the executive order wiped out the negligence claim, while the willful and wanton claim was not authorized by the Illinois Nursing Home Care Act. As the CCL brief, written by Robert S. Peck, pointed out, the nursing home's argument is that each basis for liability cancelled the other. Nonetheless, the brief argued that the motion to dismiss should be denied because the argument does not provide grounds for dismissal, but a basis for an affirmative defense that must be alleged in an answer to the filed complaints.

    The nursing home, alternatively, sought to strike a large number of the complaints' allegations, as immaterial, duplicative, or otherwise improper. The brief argues that none of the grounds asserted provides a legitimate basis for striking any paragraphs from the complaint.

    The nursing home will now have an opportunity to file a reply brief. As the case moves forward, the applicability and the constitutional validity of the executive orders will be at issue.