Two different federal district court judges denied motions to dismiss in three cases where an Illinois nursing home was sued over injuries and deaths due to COVID-19 and the nursing home's failure to take appropriate measures to stop the virus's spread in its facility.

    In the three cases filed against Westchester Operating Company, the nursing home operator, Judges Thomas Durkin and Manish Shah held that the separate claims for negligence and willful and wanton misconduct survive the motions to dismiss because the pleaded complaints allege that either Winchester was not eligible for the immunity that the Illinois Governor granted health care providers by executive order or that the pleading of willful and wanton misconduct satisfied an exception to the executive orders.

    The plaintiffs alleged that Westchester failed to take steps to protect its residents from the pandemic, affirmatively punished residents who complained, ordered staff who contracted COVID-19 to continue to work, and rendered no assistance to the State of Illinois that would qualify it for immunity under the Governor's orders. In moving to dismiss Westchester argued that the immunity order abrogated the Illinois Nursing Home Act's negligence standard and that the Act provided no liability for willful and wanton misconduct. Both judges found the arguments without merit. The three cases, filed in the U.S. District Court for the Northern District of Illinois will now proceed.

    The plaintiffs are represented by Levin and Perconti, as well as the Center for Constitutional Litigation, whose Robert S. Peck wrote the briefs opposing the motions to dismiss.