Two state supreme courts are considering whether workers who administered COVID-19 vaccines to minors without parental consent should be shielded by a federal law.
The North Carolina Supreme Court agreed to take up an appeal from Tanner Smith, one of the minors, and his mother, according to an order dated May 23.
Tanner, who was 14 at the time, went to a clinic at a school in his district, Guilford County Schools, in 2021 to receive a COVID-19 test. Instead, his mom and stepfather learned later, he was injected with a COVID-19 vaccine even after he told workers at the clinic he didn’t want it.
Emily Happel, Tanner’s mother, and the boy sued the district and the organization that was running the clinic, alleging battery and violations of constitutional rights.
A trial court ruled against them, though, finding that the Public Readiness and Emergency Preparedness Act (PREP Act) provides immunity to the workers.
The act, signed in 2005 by then-President George W. Bush, conveys immunity to administrators of covered vaccines except in cases of “willful misconduct.”
The North Carolina Court of Appeals upheld the ruling in March, despite designating the conduct carried out by the administrators “egregious.”
“We must determine whether the scope of immunity covers the potential liability at issue in this case. We hold that it does because, as the trial court noted, the immunity provided by the act is extremely broad,” Judge April Wood wrote in the unanimous ruling.
“Plaintiffs argue that the PREP Act does not cover their claims because they do not arise because of COVID-19, but merely happen to relate to COVID-19. We would be inclined to agree if the PREP Act did not define the scope of immunity so broadly,” she added later.
In a filing to the North Carolina Supreme Court, lawyers for Ms. Happel and Tanner said that the lower court decisions “rendered totally useless N.C. Gen. Stat. § 90-21.5(a1) which prohibited the very acts committed by defendants.” They also said that the trial court erred in finding that available evidence did not show the clinic workers were “acting within the scope of their employment by administering a vaccine” because that meant the court “would have required that administering vaccines without consent be a part of the employment duties of the vaccine clinic workers for a claim to stand.”
State Rep. Neal Jackson and seven other members of the state’s General Assembly said in a supporting brief that the lower court rulings wrongly overrode state law.
The PREP Act states in part that covered persons are immune from “all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual” of a covered vaccine. It defines loss as death, injury, fear of injury, or loss of or damage to property.
“Nothing in the text of the PREP Act specifically and expressly speaks to a violation of the state constitution, especially the deprivation of a parent’s right to determine the care, custody, and control of her minor child,” the members said. They added later, “If allowed to stand, however, the decision of the Court of Appeals would permit any constitutional violation and immunize all manner of ‘egregious’ conduct so long as it is done in connection with the provision of a COVID-19 vaccine.”
The Guilford County Board of Education, one of the defendants, told the state’s top court that the matter is “a straightforward application of federal statutory immunity” and not deserving of a fresh look by the court. The Old North State Medical Society, another defendant, said it was in full agreement with the county’s filing.
Vermont Case
The Vermont Supreme Court, meanwhile, heard arguments on May 28 in a case involving a 6-year-old who received a COVID-19 vaccine despite his parents explicitly stating they did not want the child to receive the shot.
The child was injected in 2021 at Academy School in Brattleboro even after Dario and Shujen Politella, the child’s parents, had informed officials they did not want the child vaccinated.
Mark Speno, superintendent of the Windham Southeast Supervisory Union, apologized and blamed the injection on a mixup with name tags.
Mr. and Mrs. Politella removed their child from the school and sued, alleging negligence, battery, and fraud.
The Vermont Superior Court dismissed the suit, finding that they needed to bring litigation in federal court under the PREP Act’s willful misconduct immunity exemption.
Lawyers for the family in a brief pointed to a U.S. appeals court ruling from 2023 that found defendants failed to show the PREP Act covered their actions and directed the case back to state court. “That should happen here,” the lawyers said.
Ronald Ferrara, one of the attorneys, told justices during oral arguments that the failure of school staff to listen to the parents is “really the cause of harm in this case,” the Vermont Digger reported. He said that “the vaccine has absolutely nothing to do with it.”
While the PREP Act immunity appears broad, disallowing the suit due to the law “create[s] some bad public policy because this kind of mistake can be repeated without ever having any judicial review,” he added later.
Vermont lawyers said that the lower court rulings were correct.
“The weight of authority clearly comes down in favor of the defendants having immunity in this case, and the lack of consent is causally related to the administration of the ‘countermeasure’ by covered individuals, therefore immunity applies,” David McLean, a state attorney, told the justices.
Aaron Siri, the managing partner of Siri & Glimstad LLP, who represents plaintiffs in legal action challenging the PREP Act’s compensation scheme, reviewed the cases.
“Anyone that injects a child against the child’s wishes or without parental consent,“ Mr. Siri told The Epoch Times in an email, ”should be criminally prosecuted and treated like any other criminal that engages in battery.”
