Judge Dismisses COVID Vaccine-Injury Lawsuit

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Originally published on THE DEFENDER

A Louisiana federal court on Tuesday dismissed a lawsuit challenging the liability shield that U.S. lawmakers granted to COVID-19 vaccine manufacturers under the Public Readiness and Emergency Preparedness (PREP) Act.

“If I could humbly speak for those Americans that were injured by the COVID-19 vaccines, I would say that we are beyond disappointed about this legal decision in federal court in Louisiana,” Dr. Joel Wallskog, co-chair of React19, told The Defender. “We are devastated.”

React19, an advocacy group whose 36,000-plus members were injured by the COVID-19 vaccines, and eight vaccine-injured individuals sued federal entities, including the U.S. Department of Health and Human Services (HHS), in October 2023.

COVID-19 shots were classified as “countermeasures” during the COVID-19 pandemic, which means they are governed under the PREP Act.

The PREP Act grants blanket liability protection to COVID-19 vaccine manufacturers — including Moderna, Pfizer and Novavax — for nearly every type of injury caused by the vaccines.

People injured by the COVID-19 vaccine can seek compensation through the federal Countermeasures Injury Compensation Program (CICP), set up under the PREP Act.

However, it is notoriously difficult to obtain compensation through that program. When the Louisiana lawsuit was filed in 2023, only four people had been compensated, even though the program had received over 12,000 requests for benefits.

As of today, the CICP has received 14,000 requests for compensation, but the program has compensated only 41 people.

The lawsuit alleged the program operates unfairly and violates the constitutional rights of the injured.

“The PREP Act strips Americans of their rights to due process and jury trial, which are protected by the Fifth and Seventh Constitutional Amendments,” Wallskog said.

He added:

“In giving up these rights during a public health emergency, there is supposed to be a safety net for those Americans injured by the emergency countermeasures. This safety net is the Countermeasures Injury Compensation Program. However, this safety net is a dismal failure with over a 98% denial rate.

“CICP has paid out few claims, mostly for insultingly small awards. The PREP Act and the failed CICP should never be able to coexist, but they do. This legal case provided an opportunity to right this wrong.”

Court ‘once again used the gatekeeping issue of standing to dismiss the case’

The lawsuit sought to strike down portions of the PREP Act and establish the rights of the plaintiffs — and anyone injured by the COVID-19 vaccine — to more easily seek compensation for their injuries.

The plaintiffs, represented by attorney Aaron Siri from the Siri & Glimstad law firm, asked the court to declare the PREP Act’s immunity provisions unconstitutional as applied to the COVID-19 vaccines.

The court ruled that the plaintiffs lacked standing — or the legal right to sue — because the judgment they were seeking would not redress their injuries.

According to the court, even if the PREP Act provisions were declared unconstitutional, the judgment would apply to the agencies being sued, and not to the vaccine manufacturers or administrators, who are the actual parties the plaintiffs seek the right to sue.

That would mean the manufacturers would still be able to assert immunity in other lawsuits, the court said.

The court rejected the plaintiffs’ claim that a favorable ruling would remove a roadblock to future litigation. They said the law requires the judgment in this particular case to remedy their injury.

“Obviously, the result … is not what was hoped for,” said Children’s Health Defense General Counsel Kim Mack Rosenberg, who was not involved in the case.

She said it was noteworthy that the court “once again used the gatekeeping issue of standing to dismiss the case — as we have seen in many cases concerning COVID-related issues — rather than delve into the even more complex issues raised by the plaintiffs.”

Given the constitutional issues raised in the case, “even standing is complex,” Mack Rosenberg said. She said “others will be carefully reviewing the court’s findings with respect to standing in declaratory judgment matters involving the constitutionality of statutes.”

Fight against PREP Act liability shield ‘far from over’

Siri told The Defender that the fight is “far from over.”

At least two other major cases challenging the constitutionality of the PREP Act and CICP are pending in other federal courts.

Siri represents several vaccine-injured plaintiffs in Smith et al. v. U.S. et al., filed last year in the U.S. District Court for the Northern District of Texas, Fort Worth Division.

According to the complaint:

“CICP is a Potemkin village — an elaborate façade designed to hide an undesirable reality. Proceedings in the kangaroo court of the CICP ignore recognized standards of law and justice, are grossly unfair, and come to a predetermined conclusion, leaving injured Americans with no avenue of relief.”

A similar case pending in the U.S. District Court for the Middle District of Florida, Tampa Division, alleges the PREP Act violates the U.S. Constitution and the Administrative Procedure Act, which governs how federal agencies develop and issue regulations.

Attorney Jeff Childers represents the plaintiffs, including the nonprofit Moms for America and individuals who were injured by a COVID-19 vaccine or whose loved one suffered injury or death from a COVID-19 vaccine.

The lawsuit asks the court to declare the PREP Act unconstitutional and to declare that the HHS secretary’s actions in implementing the act violate the Administrative Procedure Act. It also asks the court to declare that plaintiffs can sue companies like Pfizer and Moderna in federal and state courts.

Will Louisiana case set precedent for other legal battles?

Wallskog, a plaintiff in Smith et al., said he worries the dismissal of the Louisiana case will set a precedent for other legal battles.

“Will those Americans injured by the COVID-19 shots ever get justice?” he asked. “Will they ever have their rights protected? Will they ever get fair and just compensation? The time is now for [U.S. Health Secretary Robert F. Kennedy Jr.] and our elected representatives to fulfill their promises to this community.”

Attorney Ray Flores, who is not involved in the aforementioned cases, told The Defender that these lawsuits “are bold efforts to say the least. Both Siri and Childers have identified the most effective means to challenge PREP’s blatant unconstitutionality.”

However, he also said the case decided this week would “undoubtedly” have a negative impact on the other cases.

Flores said the judge in the Florida case seemed ready in May to allow portions of the case to proceed, despite a motion to dismiss by HHS. However, he said government attorneys in that case informed the court of this week’s ruling in the hope the judge would rule in their favor.

Flores, who represents a plaintiff in a separate lawsuit alleging willful misconduct, said change may not come through the courts.

“As long as PREP’s COVID-19 emergency coverage is allowed to continue through the end of the decade, absent the HHS Secretary’s stroke of a pen, there may be no viable way to end this unfairness,” he said.

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