The Vermont Supreme Court on Tuesday heard arguments in a case brought by the parents of a student who received a Covid-19 vaccine against their wishes.
The lawsuit, filed two years ago against the state of Vermont and the Windham Southeast Supervisory Union, claimed that Dario and Shujen Politella’s child, who was 6 years old at the time, was mistakenly given a Covid-19 shot. The incident, which reportedly stemmed from a name tag mix-up, occurred in November 2021 at a vaccination clinic held at the Academy School in Brattleboro.
Mark Speno, the Windham Southeast superintendent, later wrote to the parents that school officials were “deeply sorry that this mistake happened, and have worked internally to improve our screening procedures.”
The Politellas’ suit, according to a judge’s summary, accused the state of negligence, fraud and “battery of a minor.”
Windham Superior Court Judge Michael Kainen dismissed the case in January 2023. Kainen cited the federal PREP Act, a 2005 law that provides immunity from liability to government officials administering “countermeasures” in response to a public health emergency — in this case, the Covid-19 vaccine.
The Politellas appealed to the state’s highest court. During Tuesday’s arguments Ronald Ferrara, an attorney representing the parents, said they were not challenging the constitutionality of the PREP Act, but, citing other state court cases, he argued that the “idea that the PREP Act provides blanket immunity is eroding.”
The failure of the staff at the clinic to adhere to the parent’s wishes is “really the cause of harm in this case,” he said. “The vaccine has absolutely nothing to do with it.”
Justice Karen Carroll asked whether the case belonged in federal court. Ferrara said that it did not because it “doesn’t rise to the relevance of wrongful conduct resulting in death or serious injury that the federal statute needs to go over… to D.C.”
“This complaint stems from breach of duty, failures and procedural breakdowns at the operation,” he said.
Ferrara instead asked the court to return the case to superior court.
David McLean, an attorney representing the state, countered that the lower court had “correctly interpreted a federal statute that was passed to protect people who are trying to save lives during a pandemic.”
McLean acknowledged that there were cases in which federal courts have ruled that claims could fall outside of the PREP Act — be it misfeasance in the handling of a pandemic, or the failure to require social distancing — but maintained that the federal law covered the incident in question.
Chief Justice Paul Reiber at one point questioned why this wasn’t “the same as giving by mistake an injection to a young kid that wasn’t going to get it. Why isn’t that misfeasance?”
McLean replied it was “because it’s the administration of a covered ‘countermeasure’ by a covered individual.”
“So, it is misfeasance, but it’s a particular kind of misfeasance that gets swept in the language of the Act?” Justice Harold Eaton Jr. asked
“It’s a particular, very focused immunity that the statute provides,” McLean said.
He later added, “In any event, the weight of authority clearly comes down in favor of the defendants having immunity in this case, and the lack of consent is causally related to the administration of the ‘countermeasure’ by covered individuals, therefore immunity applies.”
Ferrara, in arguments before the court, said that the conduct of staff prior to the administration of the vaccine should be able to be challenged in court.
“It shouldn’t disallow it just because the PREP Act seems to be such a sweeping immunity statute,” he said. “If you do that you create some bad public policy because this kind of mistake can be repeated without ever having any judicial review. You can have this kind of stuff going on all over the place.”
The court is expected to issue a decision on the case later this year.
Read the story on VTDigger here: Vermont Supreme Court hears arguments in accidental Covid-19 vaccination case.