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This post is from the non-Reed Smith side of the blog.

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim, showing that the pleader is entitled to relief.”  TwIqbal requires a complaint contain sufficient facts to make the claim for relief “plausible on its face.”  Often that “short and plain statement” is anything but.  We have certainly reproached plaintiffs’ counsel over the years for muddying the waters with so much conjecture and supposition that it is difficult to separate fact from theory.  Add to that often complicated and/or unsettled law and we do not envy the courts that have to do the deep dive to find both the statement of the claim and the facts on which it is premised within the pages of a complaint.   Sometimes, however, both the allegations and the law are straightforward, concise, and clear.  When that happens you can get a decision like Cowen v. Walgreens Co., 2022 WL 17640208 (N.D. Okla. Dec. 13, 2022).  A short and plain opinion.  This one just happens to be about preemption, the PREP Act, and a COVID-19 vaccination.

Plaintiff alleges that she went to defendant’s drugstore to get a flu vaccination.  However, she erroneously received a COVID-19 vaccination.  Plaintiff sued defendant for the mix-up seeking in excess of $75,000 in damages but suffering apparently no physical injury or adverse consequences from the vaccination.  Plaintiff alleged only general negligence on the part of the defendant.  Id. at *2.  Those are the facts and the allegations.

The PREP Act immunizes from state or federal liability anyone who administers pandemic countermeasures, which the COVID-19 vaccine was declared to be:

[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…

42 U.S.C. §247d(a)(1), 247d-6d(b).  There is one exception to this broad immunity.  An individual can bring a federal claim for “death or serious physical injury proximately caused by willful misconduct.”  Cowen, at *2.  That action must brought in the federal district court for the District of Columbia and exhaustion of administrative remedies under the PREP Act are a prerequisite.  Id. at *2 & n.1&2.  That’s the law.

Applying the law to the facts and allegations—plaintiff’s claim is preempted.  Plaintiff is suing over the administration of an approved pandemic countermeasure and she alleges no serious injury or willful misconduct that would bring her claim into the sole preemption exception.  Plaintiff argued that her claim should be construed “more broadly” because her “injury” could have happened whether she received the COVID-19 vaccine or any other vaccine.  But she didn’t receive any other vaccine.  Even if not sought, what she received was the COVID-19 vaccine and the PREP Act is unambiguous.

While possibly factually accurate that the vaccine mix-up could have happened with any vaccine, that is not a defense to preemption.  Plaintiff provided no case law to support her “it-could-have-been-a-different-vaccine argument,” and the court’s own research found no support either.  Coulda, woulda, shoulda “does not change the fact that Plaintiff’s injuries actually resulted from administration of the COVID-19 vaccine.”  Id. at *3.  Since “all” means “all claims,” the PREP Act applies and plaintiff’s claim was dismissed.