Vermont Supreme Court Rules PREP Act Supersedes State Constitution
- by Carolyn Hendler, JD
- Published
- Informed Consent
The Supreme Court of Vermont threw out a lawsuit filed by Dario and Shujen Politella of Brattleboro, Vermont whose son L.P. was given a COVID-19 shot without their consent and against their wishes. The six-year-old boy received the shot at a pop-up health clinic hosted by the local school district and the health department.
Prior to the clinic opening, the Politellas informed the school that they did not want their son to receive a COVID shot. They reiterated this decision to the assistant vice-principle that same morning when the boy was dropped off at school. Later that day, an unidentified worker confused L.P. with another child and took him to the clinic and gave him the shot despite his protests that his father did not want him to get it.1 L.P. reportedly told the clinic worker, “dad said no,” but the clinic worker distracted him with a stuffed animal and proceeded to administer the shot.2 3
Prior to the clinic providing COVID shots at the Academy School, district and state officials assured parents that parental consent was required for a student to receive the shot.4
Vermont Superior Court Dismisses Case
In September 2022, the parents filed suit against the Windham Southeast school district, the state of Vermont, the school principal and assistant principal, a teacher school nurse, their pediatrician among other defendants in Vermont state court. The Superior Court dismissed the case last year finding that the parents lacked subject matter jurisdiction and should bring the case in federal court under the federal Public Readiness and Emergency Preparedness Act (PREP Act) immunity exclusion.5 6
Every court has a particular subject matter jurisdiction, which means they are authorized to hear only cases and controversies. That pertains to a specific subject. Federal courts hear cases that involve federal questions such as a challenge to a federal law that allegedly violates the U.S. Constitution or certain cases involving diversity jurisdiction when the parties do not reside in the same state.7 Because the PREP Act is a federal law, the Vermont court held that this case involving the PREP Act belonged in federal court and not Vermont state court.
The parents amended their Complaint, with leave from the court, to include an allegation that the Defendants violated Article 11 of the Vermont Constitution, a state claim, but the lower court still found that this claim was preempted by the PREP Act. The parents disagreed and appealed the matter to the state Supreme Court.8
The Prep Act Grants Broad Immunity to Covered Persons
The PREP Act, which went into effect in 2005, was part of a series of federal laws passed by Congress after 9-11 that gave expanded authority to public health officials and expanded liability protection to companies manufacturing and individuals administering vaccines during a public health emergency declaration.9 The PREP Act states that when the Secretary of Health and Human Services declares that a disease, health condition or threat to public health or threat of same constitutes an emergency, the Secretary may recommend the use of one or more countermeasures.10
The PREP Act provides:
Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to 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 countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.11
Vermont Supreme Court Finds PREP Act Gives All Defendants Immunity
The Vermont Supreme Court said that Plaintiffs essentially made two arguments, (1) the defendant’s conduct was not covered by the PREP Act’s immunity provision and (2) there is no preemption by PREP Act in this matter.12
The highest court in the state affirmed the lower court’s ruling finding that the defendants are immune from the lawsuit due to the PREP Act.
The court wrote:
We conclude that the PREP Act immunizes every defendant in this case and this fact alone is enough to dismiss the case… We conclude that when the federal PREP Act immunizes a defendant, the PREP Act bars all state-law claims against that defendant as a matter of law.13
The Vermont Court concluded that the plaintiffs failed to state a claim upon which relief can be granted and there are “no facts or circumstances” allowing the plaintiffs to be granted relief by the court. In order to come to this conclusion and grant defendant’s request for a dismissal on the pleadings, the court had to accept all of plaintiff’s allegations as true and view them in a light most favorable to plaintiffs.14
Looking at the PREP Act, the court determined that a vaccine is a covered countermeasure; that certain covered persons are unable to be sued for administration of the covered countermeasure, and that the immunity extends to any claim that has a causal relationship to the administration of the countermeasure. The only situation that the PREP Act does not provide immunity is when there is a federal claim filed in the U.S. District Court for the District of Columbia that a covered person’s “willful misconduct” caused “death or serious injury.” Plaintiffs in this case did not allege “willful misconduct.”15
On this matter, the court concluded that all defendants fall under the category of covered persons for purposes of the PREP Act and the alleged misconduct of giving a COVID shot to the minor child was casually related to administration of a covered countermeasure, therefore all defendants are immune from liability in this lawsuit.16
The defendant’s attorney, Pietro Lynn, said:
We are very pleased with the court’s ruling affirming dismissal of the case. We are glad to put the matter behind us.
Other State Courts Have Come to the Same Conclusion
This case falls in line with similar cases in other states. A North Carolina Court of Appeals found that a school clinic which gave a 14-year-old boy the controversial shot without his parent’s permission was protected by the PREP Act. The court determined that the PREP Act pre-empted state law. The North Carolina Appeals Court concluded,
Wisely or not, the plain language of the PREP Act includes claims of battery and violations of state constitutional rights within the scope of its immunity, and it therefore shields Defendants from liability for Plaintiffs’ claims.17
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