Are Public Schools & their vaccination clinics hiding behind the PREP Act?

How battery of a child lawsuit was dismissed by The PREP Act

A lawsuit was filed in May 2022 in the state of Vermont, alleging public school officials ignored parent wishes not to vaccinate their 6 year old son with the C19 jab.

The parents, Dario and Shujen Politella, filed the suit on behalf of their minor son, claiming school officials ignored their instructions, were grossly negligent, committed battery of a minor, negligent infliction of emotional distress, and violated their right to refuse treatment.

School officials admitted the mistake, will make changes to their screening process and issued the following statement:

“we are deeply sorry that this mistake happened, and have worked internally to improve our screening procedures. The Health Department has worked to evaluate its procedures to ensure that this does not happen again. Thankfully, we are not aware of any harm to the student because of this mistake. We take our responsibilities to students and families very seriously, and we respect parent’s rights to make health care decisions for their children.”

The incident occurred when Academy School hosted a vaccination clinic in partnership with the state of Vermont in November 2021.

The parents were very concerned about the clinic. Mr. Politella told the Asst. Principal of the school two days prior that they have not registered their child to receive the vaccine. They had some serious concerns because the vaccine was experimental and new. The school official reassured Mr. Politella that not that many kids have been signed up and there would be no issue for his son.

Filings by Politella’s attorney Ronald Ferrara, “allege that they live with fear regarding unknown long-term adverse health effects that their child having been subjected to risks associated with an investigatory vaccine of unknown safety profile, not fully understood and yet unapproved for children - could suffer,” the complaint states. “The Politellas have been traumatized, suffering mental anguish and additional education expense, with the potential for future medical expenses. Their basic liberty interest as family was vitiated by defendants’ breach of duty, which violated rights guaranteed by the Vermont Constitution, codified by statute, and long-recognized by the Vermont Supreme Court.”

Vermont Superior Court Judge Michael Kainen issued a decision (22-CV-0170) on December 26, 2022, granting the Defendant’s Motions to Dismiss the suit on the grounds that the federal PREP Act preempts state law and provides immunity for all claims related to administration of the vaccine.

I spoke with attorney Mr. Ronald Ferrara, who believes this matter is properly in state court, and asked what is the next move for the Politellas? He said that the law provides 30 days for the plaintiff to file an amended complaint, and he just finished filing one, earlier this week. The defendants will have 30 days to respond before this matter comes before Judge Kainen again. If that decision is not favorable to the family, the next step would be an appeal to the Vermont State Supreme Court, which is a decision that belongs to the family.

The Politella’s would like their claims to be heard in state court, under Vermont law, not federal court where federal preemption may override concerns regarding the minor child.

It is true that the federal statutes of The PREP Act only exception to legal immunity is willful misconduct that result in serious injury or death. The federal statute “willful misconduct that result in serious injury or death”. 42 US Code247d-6d(c)(3),(e)(1)

The statute also requires the person or their survivors must file suit in the US District Court for the District of Columbia. Meaning, must file your lawsuit in a court thought to be one of the proving grounds for US Supreme Court Justice nominees. Success there, highly unlikely.

In a statement from the Vermont Attorney General’s Office said, “Under federal law, claims can be only brought based on the administration of a pandemic countermeasure if willful misconduct caused death or serious physical injury, which did not happen here.”

That is interesting. Serious physical injury? What about intellectual, neurological injury as a result of willful misconduct?

What happens if the boy develops a serious medical condition one year from now, 3 years from now, or maybe 10 years from now? The statute of limitations for filing a lawsuit in Vermont is different than filing a willful misconduct suit in Washington DC. This is complete different than filing a petition in the CICP. Will the boy and or his parents have legal standing to filing later?

It does appear that the school and school district are not liable for their actions. The court dismisses the complaint which includes battery of a minor charge, all because of The PREP Act.

What may of happened if the vaccine administered was a flu shot and not a C19 jab?

There have been other court decisions regarding the vaccination of a minor child without parental consent. In Tonkinson v Walmart (Kansas District April 26, 2022), the plaintiffs claimed their 15 year-old daughter received a C19 jab at a Walmart pharmacy in the presence of her adult brother-in-law but without parental consent. The Court found that allegations of violations of parental rights, right to privacy, duty to inform and obtain legal consent, negligence and damages arising from such conduct regardless of the medical treatment administered, those allegations are not covered by The PREP Act immunity provision.

The most popular case cited regarding alleging wrongful vaccination of a minor child is Parker v St. Lawrence County Public Health Department. In Parker, on December 3, 2009, Lisbon Central School in St. Lawrence County, New York held a vaccination clinic for their students. A state wide public health emergency was declared by NY Governor Patterson due to an outbreak of H1N1 influenza virus. This is a completely different setting that Politella’s suit. There was no state wide public health emergency at the time in Vermont.

Jennifer Parker, parent of minor child, filed suit against St. Lawrence County Health Department alleging negligence due to no parental consent that which resulted in battery to a minor.

The Supreme Court of NY ultimately dismisses suit against St. Lawrence County Health Department based upon The PREP Act concluding a federal pre-emption defense to Parker’s claim. The sole issue decided by the NY Supreme Court is whether the PREP Act preempts Parker’s claim for negligence and battery of a minor. The Court decided against the child.

There have been court decisions regarding wrongful vaccination of an adult. In Cowen v Walgreens (Northern District of OK, Dec 13, 2022), an adult sued Walgreens after an employee gave her a C19 jab instead of a flu vaccinate. The court found the sole remedy for the plaintiff is to file a claim in the CounterMeasures Injury Compensation Program (CICP). The Oklahoma Federal Court also did not allow plaintiff to file an amended complaint. The Court’s rationale was that the plaintiff did not offer caselaw to support her claim of “it could have been a different vaccine argument”, the Court dismissed the complaint.

Watch your kids and be vigilant with school activities.

Keep learning, keep challenging yourself and always, always question authority.