Teen disputes federal immunity in forced COVID vaccination lawsuit – Carolina Journal

A Guilford County teenager and his mother challenge the argument that a federal law blocks their lawsuit over the teens forced COVID vaccination. They filed a new brief Tuesday with the North Carolina Supreme Court, which agreed in May to hear the case.

Mother Emily Happel and son Tanner Smith sued the Guilford County school board and Old North State Medical Society over the forced vaccination in 2021.

Lower courts have ruled against Happel and Smith. Those courts have determined that the federal Public Readiness and Emergency Preparedness Act offered immunity to the school board and medical society.

In the instant case, the particular facts and circumstances do not give rise to the types of liability for which Congress was attempting to provide immunity, wrote David Steven Walker, the mother and teens lawyer. The PREP Acts purpose was to provide for quick action when all the answers may not be readily apparent during a time of emergency. It was to promote that by providing immunity for negligent acts, for unknown side-effects, and for other matters directly related to the countermeasures (such as breakdowns in crowd control).

However, in this case, defendants assert immunity for a willful act the administration of a medical procedure without the required consent of the patient or the patients parent, Walker added. This was not the type of act for which Congress was seeking to provide immunity, and this Court should find that immunity does not exist.

Congress made this clear in the Emergency Use Authorization Act, when it required as a condition for authorization of an unapproved product [a]ppropriate conditions designed to ensure that individuals to whom the product is administered are informed of the option to accept or refuse administration of the product, he wrote.

Happel and Smiths brief also highlighted state law.

Just as Congress envisioned individuals to be able to refuse administration of a EUA vaccine, the General Assembly made it crystal clear that parents could also make that decision for their children, Walker wrote. At the time of the vaccine administration to Tanner, the law of the land of North Carolina required parental consent.

Defendants view of the PREP Act is so sweeping that it would sweep this important act of the General Assembly into the dustbin as a statute that states nothing more than an aspirational goal, rather than a concrete and enforceable mandate, Walker added.

The intent of Congress, when reading the Act as a whole, was to limit the liability for adverse effects and promote the quick development and deployment of the countermeasure, not to give carte blanche to medical providers to perform medical procedures without consent, Walker wrote. To hold otherwise would violate the canon against absurdities.

A May 23 order confirmed that the state Supreme Court would take up the case from Happel and Smith, who was 14 when he faced the forced vaccination. Justices signaled that they would consider a single issue: 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 case has attracted attention from eight Republican members of North Carolinas House of Representatives. They filed a brief on April 12 urging the high court to take the case.

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, wrote Tyler Brooks of the Thomas More Society, who represents the eight legislators.

As members of the General Assembly, they have a unique role in ensuring that local governmental bodies, particularly those charged with public education or who otherwise interact with children, abide by and are governed according to North Carolina state law, Brooks added. In this same vein, they further have a strong interest in ensuring that the enactments of the General Assembly are upheld against erroneous findings of federal preemption, as occurred in the instant case.

The Guilford school board and Old North State Medical Society filed separate documents asking North Carolinas highest court not to take the case.

The school boards court filing asked the court to reject claims from Happel and Smith on the grounds that the alleged constitutional questions are not real and substantial and that the subject matter of this case does not involve legal principles of major significance to the jurisprudence of this State or raise issues of significant public interest.

[T]he direct issue before the Court of Appeals is not a substantial constitutional question rather, it is a straightforward application of federal statutory immunity, which applies to the same degree to state law claims and state constitutional claims, and which is not at all an issue of first impression, the Guilford schools lawyers wrote. In fact, the idea of federal law overriding contrary state constitutional provisions appears in the U.S. Constitution itself, which expressly states that federal law supersedes both contrary state laws and state constitutions.

Even the specific idea of the PREP Act immunizing against constitutional claims is not a new one, the court filing added. Guilfords brief cited a 2024 decision from the 9th US Circuit Court of Appeals holding that, through the PREP Act, Congress expressly foreclosed federal constitutional claims related to covered countermeasures.

Happel and Smith filed a petition on April 5 asking the states highest court to take their case.

The pandemic that occurred from 2020-2022 caused a seismic shift in the social, medical, political, and legal landscape of not only the State of North Carolina, not only the United States, but the world as a whole, Walker wrote. How the government chose to deal with the pandemic, especially concerning the administration of vaccines that had been granted emergency use authorizations, was and is a hotly contested issue, one that is certainly of significant public interest.

This public interest is even more significant when the issue revolves around the vaccination of a minor and the allegation that neither the minor nor the minors parent consented to the administration of the vaccine, Walker added.

The case deals with 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, Walker wrote.

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, according to the petition. Further, the Court of Appeals and the trial courts decision rendered totally useless N.C. Gen. Stat. 90-21.5(a1) which prohibited the very acts committed by defendants. It is now a law of aspiration, with no consequence for its blatant violation.

The quoted state law NCGS 90-21.5(a1) says, 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.

The Appeals Court issued a unanimous March 5 decision against the mother and son despite labeling the forced vaccination egregious.

Plaintiffs argue the trial court erred in determining that the PREP Act is applicable to this case and provides immunity to both Defendants, Judge April Wood wrote. Due to the sweeping breadth of the federal liability immunity provision in the PREP Act, we are constrained to disagree.

Bound by the broad scope of immunity provided by the PREP Act, we are constrained to hold it shields Defendants, under the facts of this case, from Plaintiffs claims relating to the administration of the COVID-19 vaccine, Wood added.

In August 2021, Smith was a 14-year-old Western Guilford High School football player. His family learned in a letter from the Guilford schools that Smith might have been affected by a COVID-19 cluster involving the team. He would not be allowed to return to practice until getting a COVID test.

Free testing would be provided at Northwest Guilford High School. The letter indicated ONS Medical Society would conduct the testing and consent for testing is required, Wood wrote.

Smiths stepfather drove him to the testing site and waited outside the building. The teenager was asked to fill out a form while a clinic worker tried unsuccessfully to contact his mother. Smith and his family didnt know the clinic also provided COVID-19 vaccine shots.

After failing to make contact with Tanners mother, one of the workers instructed the other worker to give it to him anyway. Tanner stated he did not want a vaccine and was only expecting a test, but one of the workers administered a Pfizer COVID-19 vaccine to him, Wood wrote.

Happel and Smith filed suit in August 2022. A trial judge dismissed the case in March 2023.

Appellate judges ruled that both the school board and medical society were covered by the federal PREP Act. A declaration from the secretary of the US Department of Health and Human Services in March 2020 offered protection related to the COVID-19 vaccine.

[W]e hold ONS Medical Society is a covered person as a program planner that administered a vaccine clinic, and individually administered vaccines to individuals. The declaration clearly provides that a program planner may be a private sector employer or community group when it carries out the described activities including administration of a covered countermeasure, Wood wrote.

The same law also applied to the Guilford school board. We are convinced by the Secretarys interpretation in the declaration that a covered person under the PREP Act includes a state or local government . . . [that] provides a facility to administer or use a Covered Countermeasure. We hold this language includes the Board, which provided a facility Northwest Guilford High School for the administration of the COVID-19 vaccines, Wood wrote.

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, Wood added.

The Appeals Court noted that North Carolinas General Assembly amended state law in 2021 to require parental consent before a vaccine granted emergency use authorization may be administered to a minor.

Its intent is to prevent the egregious conduct alleged in the case before us, and to safeguard the constitutional rights at issue Emilys parental right to the care and control of her child, and Tanners right to individual liberty, Wood wrote. Notwithstanding, the statute remains explicitly subject to any other provision of law to the contrary under the broad provision preempting state law in the PREP Act.

The PREP Act provides only one exception for a Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct. Because Plaintiffs have not made any such allegations in their complaint, we are constrained to conclude the PREP Act preempts the protections provided by state law, Wood wrote.

Judges Allegra Collins and Jeff Carpenter joined Woods decision.

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Teen disputes federal immunity in forced COVID vaccination lawsuit - Carolina Journal