COVID
Case of 14-Year-Old Vaccinated for COVID Against His Will Headed to North Carolina Supreme Court
The North Carolina Supreme Court agreed to review a case involving a 14-year-old boy who was given the Pfizer COVID-19 vaccine against his will and without parental consent, setting the stage for a potential landmark ruling on parental rights and federal liability shields.
The North Carolina Supreme Court on May 23 agreed to hear the case of a Guilford County teenager who was given a COVID-19 vaccine against his will and without parental consent in August 2021, according to Carolina Journal.
The court’s decision to take up the case comes after a North Carolina appeals court ruled against the teen and his mother in March, upholding a lower court’s dismissal of their lawsuit.
Tanner Smith, then 14 years old, was instructed to get tested for COVID-19 at a Guilford County Schools vaccination site in order to continue playing football.
Despite Smith’s objections and the lack of parental consent, clinic workers administered a dose of the Pfizer COVID-19 vaccine, which at the time was available only under emergency use authorization (EUA).
In its unanimous ruling against Smith and his mother, Emily Happel, the appeals court found that the federal Public Readiness and Emergency Preparedness (PREP) Act shielded the defendants — Guilford County Board of Education and Old North State Medical Society — from liability in the lawsuit.
Commenting on the case, attorney Ray Flores, senior outside counsel for Children’s Health Defense, emphasized its significance for parental rights and the scope of the PREP Act’s liability shield.
“The North Carolina Supreme Court is the highest court so far to review parental rights vis-à-vis the PREP Act,” he told The Defender.
Flores argued that while the PREP Act is a “turbo-charged product liability immunity statute,” it should not shield “willful misconduct, fraud, breach of contract, undisclosed ingredients, false advertising — and certainly must not continue to abolish parental rights.”
Court recognized ‘egregious’ conduct but was ‘constrained’ by PREP Act
On August 19, 2021, Guilford County Schools sent a letter to Smith’s mother and stepfather about a “recent COVID-19 cluster” involving his football teammates. The letter recommended Smith report for a COVID-19 test to continue participating on the team.
The letter stated that testing would occur at Northwest Guilford High School on August 20, 2021, and that Old North State Medical Society would conduct the testing.
When Smith arrived at the testing site, workers gave him a form to fill out, which he believed to be related to the COVID-19 test.
Unbeknownst to Smith and his family, the site also operated as a COVID-19 vaccination clinic. Clinic workers attempted to contact Smith’s mother to obtain consent for administering the vaccine but were unsuccessful.
Despite the lack of parental consent and Tanner’s own objections, one of the clinic workers instructed another to “give it to him anyway,” and Tanner was injected with a dose of the Pfizer COVID-19 vaccine.
In August 2022, Emily Happel and Tanner Smith sued the Guilford County Board of Education and Old North State Medical Society, alleging battery and violations of their constitutional rights.
The plaintiffs argued that administering the COVID-19 vaccine without consent violated Tanner’s bodily autonomy rights and Emily’s parental rights under the North Carolina Constitution.
However, in February 2023, a lower court dismissed the case, citing the immunity provided by the federal PREP Act. The defendants argued that the PREP Act shielded them from liability for claims related to the administration of covered countermeasures, such as the COVID-19 vaccine, during a declared public health emergency.
The North Carolina Court of Appeals’ March decision affirmed the trial court’s dismissal of the lawsuit.
In its opinion, the court acknowledged the “egregious” nature of the conduct alleged in the case but found itself “constrained” by the broad immunity provided by the PREP Act.
The court held that both the Guilford County Board of Education and Old North State Medical Society were covered persons under the PREP Act and that the immunity applied to claims related to the administration of the COVID-19 vaccine.
The court noted that the PREP Act preempted state laws, including North Carolina’s statute requiring parental consent for EUA vaccines to minors.
‘We will win in the end’
Following the Court of Appeals decision, Emily Happel and Tanner Smith petitioned the North Carolina Supreme Court to hear their case.
The plaintiffs contended that the lower courts’ decisions have rendered North Carolina’s parental consent statute “totally useless” and “a law of aspiration, with no consequence for its blatant violation.”
David “Steven” Walker, attorney for the plaintiffs, wrote that the case:
“… involves legal principles of major significance to the jurisprudence of the State — the interplay between duty of the courts of North Carolina to remedy constitutional and other legal violations and a federal law that defendants purport forecloses that opportunity. …
“The trial court and the Court of Appeals interpreted the PREP Act so broadly as to shield nearly every act, no matter how egregious, from any legal consequence.”
On May 23, 2024, the North Carolina Supreme Court agreed to take up the case, focusing solely on the specific issue from Happel and Smith’s appeal concerning “Whether the trial court and the Court of Appeals erred when they determined that the PREP Act provided immunity to the defendants for constitutional violations and pre-empted all state law claims.”
The court’s decision to hear the case sets the stage for a potential landmark ruling on the scope of the PREP Act and its impact on state laws protecting parental rights.
Eight Republican members of the North Carolina House of Representatives filed an amicus brief in support of the plaintiffs, urging the Supreme Court to hear the case.
The legislators, represented by attorney B. Tyler Brooks of the Thomas More Society, argued that they have a “special interest in protecting the fundamental rights of the parents they represent and for whom the General Assembly has recently enacted legislation on the very subject embraced by this appeal.”
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The law in question, N.C. Gen. Stat. § 90-21.5(a1), specifically prohibits the conduct of the clinic workers in this case. It states:
“Notwithstanding any other provision of law to the contrary, a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization and is not yet fully approved by the United States Food and Drug Administration to an individual under 18 years of age.”
Flores said the legislators’ “expertly drafted” brief “dismantles the lower courts’ finding that PREP extinguishes applicable state law” and that its “mere filing … reaffirms my conviction that we will win in the end.”
Flores is no stranger to challenging the PREP Act’s liability shield. In May 2023, he sued the U.S. Department of Defense (DOD) on behalf of George Watts, Jr., a 24-year-old who died from myocarditis complications after receiving the Pfizer-BioNTech COVID-19 vaccine.
Flores argued the DOD engaged in willful misconduct by continuing to distribute the EUA version of the vaccine after the FDA granted full approval to Pfizer’s Comirnaty vaccine.
EUA vaccines have a lower bar for safety and effectiveness. Watts delayed taking the vaccine until after FDA approval of Comirnaty, but the DOD did not make the approved vaccine available.
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