The Tale of 2 State Supreme Courts

North Carolina and Vermont to hear battery of a child and coercion cases.

In early 2022, Dario and Shujen Politella filed a lawsuit against Windom Southeast Supervisory Union and the State of Vermont regarding the school administering a Covid-19 to their 6 year old boy by mistake and against the express wishes of the parents.

The incident occurred in November 2021 at a vaccination clinic held at the Academy School in Brattleboro.

The case brought forth by The Politella’s, is represented by attorney Ronald Ferrara. I spoke with Mr. Ferrara last year after initial case was dismissed by District Court Judge Michael Kainen.

Here is my article published in Jan 2023 after a phone interview with Mr. Ferrara discussing the case.

The complaint that was filed in May 2022 did not claim injury by vaccination. But rather, battery of a minor, negligence and fraud. After their case being dismissed, the Potlitella’s appealed to the Vermont State Supreme Court.

Last week, the High Court heard oral arguments. Click here to listen to the oral argument.

As in the original case and the appeal, the state represented by David McLean stated the lower court correctly interpreted a federal statute (The PREP Act) that was according to Mr. McLean, passed by Congress to protect people who are trying to save lives during a pandemic.

However, many federal and state judges have stated that the PREP Act does not provide immunity for failure to act by retirement homes or coercion or battery of a minor.

The judge in the lower court speaking why he dismissed the case, cited the PREP Act that provides immunity from liability to government officials administering countermeasures in response to a public health emergency. That maybe a viable statement if the countermeasure did injury an individual. But this is not the case in Politella.

I spoke briefly with Ronald Ferrara against last week to congratulate him for keeping this case in the proper jurisdiction, the State of Vermont. Mr. Ferrara believes that a decision will be handed down in late July or early August.

I will check back then.

Now, let’s venture south of Vermont, some 950 miles to North Carolina. About 14 hour drive or 2 hour flight.

In Raleigh, North Carolina, the home to the State Supreme Court, you will find the case of Tanner Smith a 14 year old football player who was coerced and without parental consent in August 2021, received a Covid-19 vaccine. His mother, Emily Happel filed a lawsuit in August 2022 against Guilford County Board of Education and Old North State Medical Society, alleging battery of a minor and violations of their constitutional rights.

In February 2023, a district court dismissed the case, citing the immunity provided by The PREP Act. The defendants argued that The PREP Act shielded them from liability for claims related related to a covered countermeasure.

Emily Happel appealed the decision to the North Carolina Court of Appeals and was upheld in their March 2024 decision. The Court of Appeals acknowledged the “egregious” nature of conduct alleged in the case but found itself “constrained” by the broad immunity provided by The PREP Act.

In a remarkable statement that is very problematic for citizens of North Carolina, the Court noted that The PREP Act preempted state laws, including North Carolina’s statute requiring parental consent for EUA vaccines to minors.

Following the Court of Appeals decisions, Emily Happel and her son Tanner Smith petitioned the High Court in North Carolina to hear their case.

On May 23, 2024 The High Court agreed to hear the case.

What is remarkable about the petition to The NC State Supreme Court is several members of the North Carolina House of Representatives filed an amicus brief in support of the plaintiffs, urging the Court to hear the case.

The High Court will focus on this North Carolina statue N.C. Gen. Stat. § 90-21.5(a1), specifically prohibits the conduct of the clinic workers in this case. It states:

“Notwithstanding any other provision of law to the contrary, a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization and is not yet fully approved by the United States Food and Drug Administration to an individual under 18 years of age.”

The plaintiff’s attorney, David Steven Walker stated the following:

The trial court and the Court of Appeals interpreted The PREP Act so broadly as to shield nearly every act, no matter how egregious, from any legal consequence.

Oral Argument date has not been set.

Needless to say, it will be an interesting summer to follow the case in Vermont and this case in North Carolina. This might dictate how other states and their legal systems maneuver with upcoming legal filings.

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

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Wayne Rohde, author of 2 books on the National Vaccine Injury Compensation Program.