Constitutional – PREP Act – COVID Liability Immunity – Federal Preemption – COVID Vaccination

Bound by the broad scope of immunity provided by the PREP Act, we were constrained to hold it shields defendants from plaintiffs’ claims relating to the administration of the COVID-19 vaccine.

We affirmed the trial court’s dismissal of plaintiffs’ claim.

Plaintiff and his mother appealed the trial court’s dismissal of their claims against the Guilford County Board of Education and Old North State Medical Society, Inc. based on, among other things, statutory immunity under the federal Public Readiness and Emergency Preparedness Act (PREP Act). In 2021, plaintiff was 14 years old and a football player at Western Guilford High School. Guilford County Schools informed plaintiff’s parents in a letter that plaintiff may have been affected by a “recent COVID-19 cluster” involving football team members at his school, and that the Guilford County Public Health Department recommended and requested COVID-19 testing for individuals potentially infected, regardless of vaccination status. The letter stated that unless parents allowed their children to be tested, Guilford County Schools would not allow players “to return to practice until cleared by a public health professional.” The letter further stated that COVID-19 testing would be available at no cost at Northwest Guilford High School. The letter indicated ONS Medical Society would conduct the testing and “consent for testing is required.”

Plaintiff went into the testing facility, which was also a COVID-19 vaccination site. Inside, clinic workers gave plaintiff a form to fill out, which he believed to be something related to the COVID-19 test. After failing to make contact with plaintiff’s mother, one of the workers instructed the other worker to “give it to him anyway.” Plaintiff stated he did not want a vaccine and was only expecting a test, but one of the workers administered a Pfizer COVID-19 vaccine to him.

Plaintiffs alleged battery; violations of plaintiff mother’s constitutional liberty and parental rights and of plaintiff’s bodily autonomy rights under N.C. Const. art. I, §§ 1, 13, and 19; and violations of both plaintiffs’ federal constitutional rights. The trial court dismissed the complaint as to both defendants.

On appeal, plaintiffs argued the trial court erred in determining that the PREP Act is applicable to this case and provides immunity to both defendants. Due to the sweeping breadth of the federal liability immunity provision in the PREP Act, we were constrained to disagree. We were convinced by the Secretary’s interpretation in the declaration that a covered person under the PREP Act includes a “state or local government . . . [that] provides a facility to administer or use a Covered Countermeasure.” We held this language includes the Board, which provided a facility— Northwest Guilford High School—for the administration of the COVID-19 vaccines.

Finally, we determined that the scope of immunity covers the potential liability at issue in this case because, as the trial court noted, the immunity provided by the Act is extremely broad. Wisely or not, the plain language of the PREP Act includes claims of battery and violations of state constitutional rights within the scope of its immunity, and it therefore shields defendants from liability for plaintiffs’ claims.

Plaintiffs argued that the PREP Act does not cover their claims because they do not arise because of COVID-19, but merely happen to relate to COVID-19. Although plaintiffs’ claims could arise no matter what type of vaccine plaintiff was given without parental consent, the PREP Act provides immunity to defendants because it shields them from “any claim for loss that has a causal relationship with the administration” of the COVID-19 vaccine. 42 U.S.C. § 247d-6d(a)(2)(B).

Because plaintiffs have not made any such allegations in their complaint, we are constrained to conclude the PREP Act preempts the protections provided pursuant to N.C. Gen. Stat. § 90-21.5(a1).

Affirmed.

Happel v. Guilford County Board of Education (Lawyers’ Weekly No. 011-047-24, 13 pp.) (April Wood, J.) Appealed from Guilford County Superior Court (Lora C. Cubbage, J.) Walker Kiger, PLLC, by David Steven Walker, for plaintiffs-appellants; Tharrington Smith, LLP, by Stephen G. Rawson, for Guilford County Board of Education, defendants-appellees; Rossabi Law Partners, by Gavin J. Reardon and Amiel J. Rossabi, for Old North State Medical Society, Inc., defendants-appellees. North Carolina Court of Appeals