The world order has been restored. The clouds have parted, and all today is in perfect resonant harmony. Ok, we are exaggerating. A lot. But we are pleased to report that at least one federal district court has correctly interpreted and applied the PREP Act. We are sure you are as relieved as we are.
We reported two weeks ago on a federal district court that got the PREP Act completely wrong. The law is remarkably straightforward. Congress enacted the Public Readiness & Emergency Preparedness Act (“PREP Act”) in 2005 to ensure the availability of effective countermeasures in the event of public health emergencies, such as COVID-19. The Act creates an administrative remedy for allegedly injured individuals, and it grants covered persons immunity from civil liability in connection with countermeasures, like vaccines. There is only one exception: The PREP Act provides “an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.” 42 U.S.C. § 247d-6d(d)(1) (emphasis added).
The misguided case on which we reported two weeks ago ruled that “exclusive” really means “non-exclusive,” and it allowed the plaintiff to pursue a state-law negligence claim based on a COVID vaccine reaction.
Just days later, a federal court in New Mexico got it exactly right on very similar facts. In Storment v. Walgreen, Co., No. 1:21-cv-00898, 2022 WL 2966607 (D.N.M. July 27, 2022), the plaintiff alleged that she got dizzy and fell after the defendant pharmacy administered a COVID vaccine. Id. at *1. These allegations fell directly within the Act’s preemptive scope, which includes “any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” Id. at *2 (emphasis in original, quoting 42 U.S.C. § 247d-6d(a)(2)(B)).
It is difficult to imagine how the PREP Act would not apply to the plaintiff’s negligence-based claims, but the plaintiff tried anyway. She argued that her injury (fainting at the pharmacy) could have occurred with or without a COVID vaccine and thus was not causally related. Id. at *2. She could not, however, get around her own allegations that the vaccine was the cause:
Plaintiff appears to argue that because her injuries could have resulted from any vaccination or other medical procedure . . . , the Court should find the PREP Act not applicable. While it is true that other vaccinations or procedures might also leave customers dizzy, this does not change the fact that Plaintiff’s injuries actually resulted from administration of the COVID-19 vaccine. The PREP Act therefore applies
Id. at *3. The court included this additional pithy remark: “Plaintiff provided no caselaw to support the it-could-have-been-a-different-vaccine argument . . . .” This judge would make a good blogger.
This order is a true application of the “plain and unambiguous meaning” of a federal statute, and it provides a quintessential example of the PREP Act in action. The court dismissed the case with prejudice.