Tuesday, August 16, 2022
HomeHealth LawNew Mexico Federal Court docket Makes The PREP Act Proper Once more

New Mexico Federal Court docket Makes The PREP Act Proper Once more


The world order has been restored.  The clouds have parted, and all immediately is in excellent resonant concord.  Okay, we’re exaggerating.  Rather a lot.  However we’re happy to report that not less than one federal district courtroom has appropriately interpreted and utilized the PREP Act.  We’re positive you might be as relieved as we’re. 

We reported two weeks in the past on a federal district courtroom that acquired the PREP Act utterly improper.  The legislation is remarkably simple.  Congress enacted the Public Readiness & Emergency Preparedness Act (“PREP Act”) in 2005 to make sure the supply of efficient countermeasures within the occasion of public well being emergencies, similar to COVID-19.  The Act creates an administrative treatment for allegedly injured people, and it grants lined individuals immunity from civil legal responsibility in reference to countermeasures, like vaccines.  There is just one exception:  The PREP Act gives “an unique Federal reason behind motion towards a lined individual for loss of life or severe bodily damage proximately attributable to willful misconduct.”  42 U.S.C. § 247d-6d(d)(1) (emphasis added). 

The misguided case on which we reported two weeks in the past dominated that “unique” actually means “non-exclusive,” and it allowed the plaintiff to pursue a state-law negligence declare primarily based on a COVID vaccine response. 

Simply days later, a federal courtroom in New Mexico acquired it precisely proper on very comparable information.  In Storment v. Walgreen, Co., No. 1:21-cv-00898, 2022 WL 2966607 (D.N.M. July 27, 2022), the plaintiff alleged that she acquired dizzy and fell after the defendant pharmacy administered a COVID vaccine.  Id. at *1.  These allegations fell immediately throughout the Act’s preemptive scope, which incorporates “any declare for loss that has a causal relationship with the administration to or use by a person of a lined countermeasure.”  Id. at *2 (emphasis in unique, quoting 42 U.S.C. § 247d-6d(a)(2)(B)). 

It’s tough to think about how the PREP Act wouldn’t apply to the plaintiff’s negligence-based claims, however the plaintiff tried anyway.  She argued that her damage (fainting on the pharmacy) may have occurred with or with out a COVID vaccine and thus was not causally associated.  Id. at *2.  She couldn’t, nonetheless, get round her personal allegations that the vaccine was the trigger:

Plaintiff seems to argue that as a result of her accidents may have resulted from any vaccination or different medical process . . . , the Court docket ought to discover the PREP Act not relevant.  Whereas it’s true that different vaccinations or procedures may additionally depart clients dizzy, this doesn’t change the truth that Plaintiff’s accidents truly resulted from administration of the COVID-19 vaccine.  The PREP Act due to this fact applies

Id. at *3.  The courtroom included this extra pithy comment:  “Plaintiff supplied no caselaw to assist the it-could-have-been-a-different-vaccine argument . . . .”  This decide would make a great blogger.

This order is a real software of the “plain and unambiguous that means” of a federal statute, and it gives a quintessential instance of the PREP Act in motion.  The courtroom dismissed the case with prejudice. 

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