Exclusive: VACCINE INJURED? What to Do Next.
Overview of Current COVID-19 Vaccine Injury Case Law, Plus Resources for the Vaccine Injured. By Julie Piantedosi, JD, and Denise Wilson, RN, MSN.
INTRODUCTION
As of June 2024, over 270 million Americans have received at least one dose of the COVID-19 vaccine. (Our World in Data, 2024) Unfortunately, individuals who have experienced adverse effects from the vaccine or have loved ones who have suffered adverse effects have encountered enormous problems in seeking compensation for those injuries. This article examines the inadequacy of government-provided solutions for COVID-19 vaccine injuries, as well as addresses the difficulties faced by the vaccine-injured in obtaining legal remedies for medical costs, pain and suffering, and other adverse outcomes. The authors hope to guide those suffering negative physical outcomes from the COVID vaccines on possible ways to maximize their chances of receiving compensation and to explore strategies to accomplish this.
It is important to note that while the article presents case facts, it should not be construed as offering or providing legal advice.
Resources for individuals impacted by the vaccine are shared at the end of this article.
BACKGROUND
PUBLIC READINESS AND EMERGENCY PREPAREDNESS ACT
In 2003, an outbreak of SARS (severe acute respiratory syndrome) spread across the globe, infecting people in more than 20 countries. The disease was controlled within six months, but it provided world leaders with a glimpse of the potential impact of a global pandemic (https://archive.cdc.gov/www_cdc_gov/about/history/sars/timeline.htm) Then, in 2005, a deadly avian flu virus emerged throughout Asia and, although the virus spread through contact with infected animals rather than people, epidemiologists began to worry about what could happen if a virus mutated and became transmissible from person to person. Following these concerning outbreaks, the George W. Bush Administration became alarmed that a similar pandemic could occur in the United States. This concern was heightened due to a significant decline in the number of vaccine manufacturers in the country, as many had ceased operations due to fears of litigation and liability.
Consequently, the government incentivized companies to develop and produce medical treatments for a pandemic by offering protection from liability during emergencies. This led to the introduction of the Public Readiness and Emergency Preparedness Act (PREP Act) in 2005, which provided broad liability protection for individuals and entities involved in developing, distributing, and administering certain pandemic "covered countermeasures" (The White House, 2005). Covered countermeasures include interventions such as diagnostics, treatments, medicines, and vaccines. The PREP Act protections shield pharmaceutical companies and manufacturers and distributors from claims arising from the use of such countermeasures. The immunity provided by the PREP Act is sweeping, offering protection to covered persons for "all claims for loss caused by, arising out of, relating to, or resulting from the administration or the use of a covered countermeasure.” (42 U.S.C. 247d-6d(a)(1), 2022) Covered persons, as defined under the PREP Act, include manufacturers, distributors, states, localities, licensed healthcare professionals, and others who administer/use COVID-19 countermeasures. (42 U.S.C. § 247d-6d(i)(3), 2022)
While recognizing the need to provide liability protection as an incentive for pharmaceutical manufacturers to develop pandemic products, members of Congress failed to give any meaningful consideration to the need to provide adequate compensation to those whom the side effects of such products might injure.
The Health and Human Services’ (HHS) Secretary may make a declaration, through publication in the Federal Register, of a public health emergency which invokes the PREP Act's immunity. This works in in tandem with Section 564 of the Food, Drug, and Cosmetic Act, and allows the FDA to issue emergency-use authorizations, ensuring a coordinated regulatory framework. (FDA: Emergency Use Authorization of Medical Products and Related Authorities. 2017).
On January 31, 2020, the former HHS Secretary declared a public health emergency for the United States in response to the COVID-19 outbreak. (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 2020).
This declaration and eleven subsequent amendments protect manufacturers and distributors of COVID-19 vaccines, among other things. Although the national and public health emergency ended on May 11, 2023, the current HHS Secretary Xavier Becerra extended the PREP Act protections until December 31, 2024, through the 11th amendment to the PREP Act. (Eleventh Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 2023). This means all protections under the PREP Act will remain in place until the end of 2024, despite the absence of a public health emergency.
COUNTERMEASURES INJURY COMPENSATION PROGRAM
The Countermeasures Injury Compensation Program (CICP) was established under the PREP Act of 2005 to provide “timely, uniform, and adequate compensation to eligible individuals for injuries directly caused by the administration or use of a covered countermeasure.” (42 U.S.C. § 247d-6e(a)). It is the sole remedy for compensation under the PREP Act for those injured by the COVID-19 vaccine and is available for serious physical injuries or death (42 U.S.C.§ 247d–6e). U.S. Code defines serious physical injuries as those that are (A) life-threatening; (B) result in permanent impairment of a body function or permanent damage to a body structure; or (C) necessitate medical or surgical intervention to preclude permanent impairment of a body function or permanent damage to a body structure.” (42 U.S.C. § 247d-6d).
The CICP program has proven problematic for COVID-19 vaccine-injured individuals. One of the critical issues is the dual role of the Department of Health and Human Services (DHSS) as it functions as both the defendant and the adjudicator in the claims review process, leading to a conflict of interest (Junying et al., 2022). Additionally, the CICP was not prepared to handle a public health crisis on the scale and severity of COVID-19 and has proved ill-equipped to handle the tsunami of claims filed by injured persons. As of July 1, 2024, a staggering 13,309 COVID-19-related claims have been filed with the CICP, and, to date, only 13 have been compensated, equating to a mere 0.091% compensation rate. Further, the average compensation paid for a claim is $3,721. In addition, two thousand eight hundred and fifty-five claims have been denied for reasons such as incomplete medical records, failure to meet the standard of proof, covered injury not sustained, missed filing deadline, and products not being covered by the CICP. Out of the total 13,402 claims filed, 10,399 (77.6%) are pending review. (Health Resources and Service Administration, Countermeasures Injury Compensation Data, July 2024).
The CICP Filing Process:
The process for filing a CICP claim for an injured person is as follows:
Submit a Request for Benefits package within one year of receiving or using the countermeasure you believe caused the injury. This is a strict one-year statute of limitations triggered by the date of vaccination/countermeasure administration and unrelated to the manifestation of any symptoms. In contrast, the CICP has no statutory time limits to process a claim and only one statutory time limit to respond to a claim (if the CICP does not respond to a claim in 240 days, the claimant may sue for willful misconduct).
Documents required within the strict one-year time limit can be found by visiting the following website and are summarized below (https://www.hrsa.gov/cicp/filing-process):
Authorization for Release of Medical Information for each medical provider who treated the claimant.
Proof that a covered countermeasure was administered or used.
All medical records documenting medical visits, procedures, consultations, and test results that occurred on or after the date of administration or use of the covered countermeasure.
All hospital records, including the admission history and physical examination, the discharge summary, all physician subspecialty consultation reports, all physician and nursing progress notes, and all test results that occurred on or after the date of administration or use of the covered countermeasure.
All medical records for one year prior to administration or use of the covered countermeasure, to show any pre-existing medical history.
Evidence proving the death or serious injury was the direct result of the administration/use of a covered countermeasure. (Health Resources and Services Administration, 2024).
Your Request for Benefits forms are sent to the CICP via U.S. Postal Service mail or a private courier (e.g., FedEx or UPS). CICP does not accept Request for Benefits forms via fax or email.
The CICP Approval Process:
The CICP claims approval needs more transparency. Eligibility decisions for claims are made by unidentified reviewers based on undisclosed criteria, leaving claimants uninformed about the reasoning behind CICP decisions. Claimants are not allowed to present evidence or question the adjudicators. Additionally, claimants are denied access to the documents used by CICP to reach their decisions, and all CICP decisions are exempt from judicial review. (42 U.S.C. §247d-6d).
If the injured person disagrees with the CICP’s decision, he or she may, within 60 days, request a reconsideration. There are no reviews of reconsideration decisions. Alternatively, if the claimant does not accept the CICP’s offer on an approved claim, or if the CICP has not responded to a claim within the statutory 240 days, the injured party may sue for willful misconduct in the District Court for the District of Columbia. However, if the claimant decides to accept the compensation offered through CICP, his or her right to sue is extinguished.
General Concerns Regarding CICP:
The CICP appears to be grossly underfunded according to the Health Resources and Services Administration (HRSA) operating plan, as only $5 million and $7 million were budgeted for the administration of CICP in 2022 and 2023 despite hundreds of millions of COVID-19 vaccines being administered during this time. (https://www.hrsa.gov/about/budget)
Additionally, the HHS Secretary is authorized to create a COVID-19 injury table; to date, four years later, a table has yet to be created. All common vaccines used in the U.S. have injury tables. An injury table allows for the presumption of causation for an injured individual. If his or her injury is included on the table, it is a putative vaccine injury. All non-table injuries require evidence that the injury is the direct result of the vaccine. All COVID-19 vaccine injuries are currently non-table injuries. (Gentry, Renée J., and Richard Hughes. “The Case for Modernizing Vaccine Injury Compensation.” HealthAffairs.Org, 19 July 2023, www.healthaffairs.org/content/forefront/insult-injured-case-modernizing-vaccine-injury-compensation.)
WILLFUL MISCONDUCT
The only exception to the immunity provided under the Prep Act is “an exclusive federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.” (42 USC 247d-6d)
This exception is available for death or serious physical injury caused by willful misconduct, as defined in the PREP Act — an act or a failure to act that is undertaken: 1) intentionally to achieve a wrongful purpose; 2) knowingly without legal or factual justification; and 3) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit. (42 USC § 247d-6d(c)(1)(A)).
The PREP Act mandates that the willful misconduct requirement “be construed as establishing a standard for liability that is more stringent than a standard of negligence or any form or recklessness.” (42 U.S.C. § 247d-6d(c)(1)(B)) Claims for willful misconduct must be brought only in the United States District Court for the District of Columbia after all administrative remedies have been exhausted. (42 U.S.C. § 247d-6d), i.e., the injured persons must seek compensation through CICP before claiming willful misconduct. If the claimant accepts compensation through CICP, his or her right to sue is extinguished; but, if after filing a CICP claim, his or her claim is denied, or he or she declines the offer or there is no response from the CICP within 240 days, he or she may sue for willful misconduct.
There are two statutory defenses for covered persons in a willful misconduct claim:
A program planner or qualified person will not be found to have engaged in willful misconduct if they acted consistent with applicable directions, guidelines, or recommendations by the Secretary regarding the administration or use of a covered countermeasure, and
They have notified either the Secretary or the state or local health authority of the injury or death allegedly caused by the countermeasure within seven days. (42 U.S.C. § 247d-6d)
Defenses for manufacturers and distributors:
The act or omission by a manufacturer or distributor that is subject to regulation will not constitute willful misconduct if neither the Secretary of DHHS nor the Attorney General has initiated an enforcement action, or such an enforcement action has been initiated and the action has been terminated or finally resolved without a covered remedy. (42 U.S.C. § 247d-6d(c)(5)).
CASE LAW – VACCINE INJURIES
Following are some of the federal and state cases that have influenced or could influence COVID-19 vaccine injury litigation. They demonstrate various strategies used to achieve somewhat favorable results. The significance of the issues raised, the status of the adjudication, and any other pertinent matters will be noted.
FEDERAL CASES:
WATTS LAWSUIT
On September 17, 2021, 24-year-old George F. Watts, Jr., received his second dose of the COVID-19 vaccine. A little over a month later, on October 27, the 24-year-old New York resident passed away. George had been waiting until the vaccine received FDA approval, because he was eager to get vaccinated so he could return to campus for in-person classes. He could not return until he was vaccinated per school policy. According to the medical examiner assigned to George's case, the cause of his death was attributed to "COVID-19 vaccine-related myocarditis." (https://parentheartwatch.org/autopsy-confirms-ny-state-college-student-died-from-covid-19-vaccine-related-myocarditis/)
Myocarditis in adolescents has been diagnosed clinically following the administration of the second dose of an mRNA vaccine for coronavirus disease, (Heidecker, B., 2022) In a first-of-its-kind case, George's parents filed a lawsuit against Lloyd Austin, the U.S. Secretary of Defense, and the Department of Defense (DOD) alleging "willful misconduct," the sole exception to the immunity provision under the PREP Act. (Estate of George Watts, Jr. v Austin, 2023).
The family firmly believes that the COVID-19 vaccine caused George’s death and that the DOD waged a deliberate and calculated mass-deception campaign specifically designed to hide from the public information that the COVID vaccines being administered were not licensed nor “safe and effective,” but were experimental and, therefore, could not be pronounced as safe. The plaintiffs claim the government engaged in willful misconduct when they told the public that the vaccines were safe and effective.
The Watts family diligently complied with all requirements under the PREP Act and filed a Request for Benefits form as required. Despite this, the government failed to make a final determination within the statutory 240-day period. Consequently, the family filed a civil action as permitted by the PREP Act.
STATUS:
The DOD immediately filed a motion to dismiss the case, arguing sovereign immunity, a legal doctrine asserting the government cannot be sued without its consent. (U.S. Const. Art. Article III, Section 2, Clause 1). The plaintiffs responded by arguing that foreclosing all remedies violates the 5th Amendment of the Constitution and that the DOD engaged in ‘willful misconduct’ by convincing the decedent that the vaccine he received was Comirnaty (which was FDA-approved and therefore could be called ‘safe and effective’) - while instead administering to him the EUA vaccine that was only ‘authorized,’ and thus not legally allowed to be described as ‘safe and effective.’ The case is currently pending in the District of Columbia District Court. There has been no recent movement in the case. (Estate of George Watts, Jr. v. Austin, 2023).
SIGNIFICANCE:
This is a groundbreaking lawsuit as it appears no one has successfully brought a willful misconduct case under the PREP Act in its 19 years of existence. It is the only case in the U.S. that uses the ‘willful misconduct’ exception under the PREP Act to sue the government. It should be watched closely. Key questions are whether the plaintiffs can overcome the two statutory defenses to their claim and the lack of any enforcement action undertaken against the distributor by the Secretary of DHHS or the Attorney General.
COUNTERMEASURES INJURY COMPENSATION PROGRAM LAWSUITS
Attorneys for a group of plaintiffs in Louisiana filed a lawsuit against the Health Resources and Services Administration (HRSA), an agency of the Department of Health and Human Services (HHS), claiming that the government’s Countermeasures Injury Compensation Program (CICP) violates the Fifth and Seventh Amendments of the U.S. Constitution. Plaintiffs argue that provisions of the PREP Act, which created the CICP, must be struck down "to the extent it fails to provide basic due process protections, transparency, and judicial oversight" and that the CICP as it functions now is fundamentally inconsistent with Congress's intent. (Smith v. Health Resources and Services Administration, 2023)
STATUS:
The Defendant (HRSA) has filed a Motion to Dismiss the complaint for failure to state a claim and lack of jurisdiction. Plaintiffs have filed an opposition to the motion. (https://www.courtlistener.com/docket/67869537/smith-v-united-states-health-resources-and-services-administration/)
This is another important case for the vaccine injured. The plaintiffs in this case are suing for due process rights for all the vaccine injured and a fair chance for those harmed to receive some compensation and justice for the adverse outcomes they and their families have suffered. A decision on this case is expected soon.
SIGNIFICANCE:
The decision in Smith v. HRSA could have far-reaching implications for the vaccine injured. The plaintiffs in this case are suing for due process rights for all vaccine injured and a fair chance for those harmed to receive adequate compensation for the adverse outcomes they and their families have suffered.
2. There is a second case filed against the CICP in Texas challenging its constitutionality.
N.B.: This case has same name as the first CICP case, but the plaintiffs are different ‘Smiths.’ The plaintiffs demand in this case, among other things, the right to due process protections such as the right to see any evidence used against them, the ability to present expert witnesses, and the right to appeal an adverse decision. (https://dockets.justia.com/docket/texas/txndce/4:2024cv00334/388817)
STATUS:
The Texas case has been stayed per Court Order pending resolution of the Louisiana case and a decision on that case is expected soon. (Smith v. United States of America, 2024).
SIGNIFICANCE:
As with the first CICP case above, if this suit is successful, it has broad implications for all COVID-19 vaccine injured individuals in the U.S.
STATE CASES:
Several hundred cases have already been filed against healthcare providers apropos COVID-19, most involving owners and operators of nursing homes and other long-term care facilities. These cases mainly focus on allegations of "failure to act," i.e., negligence in failing to protect patients from the COVID-19 illness. The PREP Act’s liability protections may apply to certain cases of non-use, failure to use, and even refusal to administer a covered countermeasures to a particular individual; however, many state courts have thus far reached the opposite conclusion, finding that the non-use of a covered countermeasure does not necessarily trigger the PREP Act.
For example, negligence or wrongful death claims do not necessarily fall under the exclusive willful misconduct cause of action outlined in the PREP Act. Also, courts have ruled that the PREP Act is an immunity statute, not a replacement for state tort law, and does not grant exclusive jurisdiction to federal courts over state-law claims.
State causes of action currently being argued in senior care, such as the cases below, are now reaching beyond the long-term care sector. Currently, most nursing home claims are not vaccine injury cases, but newer cases are starting to use state tort claims creatively for vaccine injuries. This is encouraging for the vaccine-injured, because filing and litigating in state courts does not necessarily trigger immune protection under the PREP Act. We wish to emphasize the significance and usefulness of state tort claims, which can be used if federal claims (i.e., ‘willful misconduct’) are not raised. State claims are beginning to play a more significant role in the broader context of COVID-19 vaccine litigation.
State Cases: Failure to Act
(Saldana v. Glenhaven Healthcare L.L.C., 2022) The Ninth Circuit held that the PREP Act was not intended to preempt all state law claims.
(Maglioli v. All. H.C. Holdings L.L.C., 2021) The Third Circuit held that the PREP Act did not preempt negligence claims.
(Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center, 2023) The Second Circuit holds that the PREP Act preempts only willful misconduct claims and, therefore, does not support federal removal jurisdiction.
(Bolton v. Gallatin Center for Rehabilitation & Healing, 2021). The United States District Court Middle District of Tennessee Nashville Division ruled that the PREP Act does not completely preempt state law claims against nursing homes for negligence in responding to the COVID-19 pandemic.
(Zane Cagle v. NHC Healthcare, 2023): The Eighth Circuit holds that the PREP Act does not entirely preempt negligence actions or otherwise create federal jurisdiction, and the requirements for federal removal were not satisfied.
(Hudak v. Elmcroft of Sagamore Hills, 2023): The Sixth Circuit held that claims against an assisted care facility must be tried in state, not federal, Court. The Court reasoned that the plaintiff's claims did not fall within the scope of the federal cause of action under the PREP Act because willful misconduct was not alleged in administering a covered COVID-19 countermeasure.
(Solomon v. St. Joseph Hosp., 2023) The Second Circuit again held that the PREP Act completely preempts only willful misconduct claims and provides broader immunity defenses for other state-law claims arising out of the administration of covered countermeasures.
State Cases: Vaccine Injury
ROEDER V. POLOVICH et al.
The United States District Court of Pennsylvania ruled that the PREP Act allowed a state-law negligence claim arising from the administration of a COVID-19 vaccine. The court noted that the plaintiff had not mentioned the PREP Act in her complaint, and that the Act would only become relevant as it provides a preemption defense for the defendant. The court pointed out that the Third Circuit has already made clear the PREP Act’s preemption defense is not raised by a state law claim of negligence. (Roeder v. Polovich et al., 2022)
STATUS:
The case is currently in state court, in the Common Pleas Court in Philadelphia.
SIGNIFICANCE:
The U.S. District Court of Pennsylvania found that the state-law negligence claim fell “outside the scope” of the exclusive federal remedy and remanded the case back to state court.
Alfredo Barrera WALGREENS
Alfredo Barrera, went to a Walgreens pharmacy for his first Pfizer COVID-19 vaccine on July 27, 2021; and, after receiving the vaccine, he suffered a cardiac arrest. His estate filed a claim against Walgreens claiming the pharmacist who administered the vaccine ignored Walgreens’ protocol in reviewing his medical form and that the question Mr. Barrera answered as “unknown” regarding health conditions should have been investigated. Plaintiff alleges had Walgreens followed proper protocol before giving the vaccine and warned Mr. Barrera, who was found to be hypertensive and who had atherosclerotic cardiovascular disease or advised him to seek medical clearance after answering “unknown,” he would not have taken the vaccine. (Estate of Alfredo Barrera v. Walgreens Co., 2023)
STATUS:
The plaintiff filed suit in state court, but defendants removed the case to federal court and then immediately filed a motion to dismiss claiming PREP Act immunity. Plaintiff then filed a motion to remand, and the judge agreed with the plaintiff. Despite Walgreens’ objections, the Judge remanded the case back to the state court, and the case is currently ongoing.
SIGNIFICANCE:
This is another case that demonstrates vaccine injury claims can be successfully pursued in state courts. We wish to re-emphasize the importance of state law claims, which can be employed in vaccine injury cases if federal claims (i.e., willful misconduct) are not raised. It is also significant in that a federal judge asserts that the case belongs in state court and the PREP Act does not apply.
Health and Hospital of Marion County et al. v. Talevski
A dispute that started in 2016 at a nursing home in Indiana ended up at the United States Supreme Court. This lawsuit has nothing to do with COVID. So why are we writing about it? We are telling you about this because we wish to be thorough; and, if you or your loved one resides in a government-owned nursing home, it gives you another cause of action.
Obamacare, or the Affordable Care Act (A.C.A.), created a patient’s bill of rights for nursing home residents. A lawsuit filed under the A.C.A. alleged civil rights abuses that were committed against the plaintiff at an Indiana nursing home.
The case eventually ended up in the Supreme Court, which decided that, if the patient resides in a public nursing home, he or she has the right to sue the Government for civil rights violations. The Supreme Court ruled that certain rights contained in the Federal Nursing Home Reform Act (FNHRA) can be enforced through a private right of action under 42 U.S.C. § 1983. Currently, most nursing home lawsuits are filed under state tort law theories, such as negligence, wrongful death, medical malpractice, etc. However, in this case, a plaintiff claims that the negligent care provided in the nursing home violated his civil rights. (Health and Hospital Corporation of Marion County et al. v. Talevski, 2022)
STATUS:
The Supreme Court decided for the plaintiff, and the case will move forward. As of July 2024, the parties are currently engaged in the discovery stage.
SIGNIFICANCE:
Government-owned nursing homes in the United States and the public hospitals that own them could face new financial exposure from federal lawsuits. Moreover, the patient settlements for civil rights violations may be far more lucrative than state tort claims. Further, public or government-owned nursing homes are even more profitable than private ones because they accept federal funds. Take note, Indiana residents! Although this ruling applies to all U.S. states and residents, in Indiana more than half of the nursing homes are government-owned and operated. However, it is essential to understand that only government-run facilities can face this litigation.
TEXAS CASE
In November 2023, Texas Attorney General, Ken Paxton, filed a lawsuit against Pfizer alleging violation of the Deceptive Trade Practices Act (DTPA) claiming Pfizer unlawfully misrepresented the effectiveness of the COVID-19 vaccine. The lawsuit against the company aims to bar Pfizer from making any more of what Paxton says are false claims and demands the company pay civil penalties of up to $10 million for every violation of the DTPA. (State of Texas v. Pfizer, 2023)
STATUS:
The case was moved into federal court on Pfizer’s motion. Pfizer has since filed a motion to dismiss for failure to state a claim and a motion for a protective order for any documents that may be released during discovery. Texas filed a responsive motion, and the judge has not yet ruled on this motion.
SIGNIFICANCE:
States are taking legal action to hold pharmaceutical manufacturers accountable for the harm caused by their practices regarding COVID-19 vaccines. Texas initiated legal proceedings against Pfizer, and Kansas has also filed suit, with more states expected to take similar action.
KANSAS CASE
On June 17, 2024, Kansas filed a consumer protection lawsuit against Pfizer, accusing the company of intentionally misleading the public about the safety and efficacy of the COVID-19 vaccine. The lawsuit, filed on June 17, 2024, in the District Court of Thomas County, accuses Pfizer of concealing risks associated with its vaccine and making false claims about its effectiveness. Further, Kansas alleges that Pfizer claimed its COVID shot was ‘safe and effective’ knowing that its COVID-19 vaccine was connected to serious adverse events, including myocarditis and pericarditis, failed pregnancies, and deaths. (State of Kansas v. Pfizer, 2024)
STATUS:
The Kansas Attorney General is seeking damages and a declaration that Pfizer violated agreements with the state. Pfizer denies the allegations and asserts the case has no merit.
SIGNIFICANCE:
This lawsuit, along with the Texas case, raises concerns about transparency in our federal organizations and health care system. It also demonstrates the public’s waning trust in government agencies and vaccine manufacturers.
WORKERS’ COMPENSATION
FEDERAL EMPLOYEES' COMPENSATION ACT
We will not spend much time on the Federal Employees Compensation Act (FECA), as the federal vaccine mandate was in place nationwide for only four months. On September 9, 2021, President Biden issued an Executive Order (EO) which required all federal employees in the Executive Branch to become vaccinated against COVID-19 by November 22, 2021. (Executive Order 14043, 2021). Enforcement of the mandate was suspended in January 2022 due to legal challenges.
On April 10, 2023, President Biden signed a bill ending the federal COVID-19 emergency. (Shen, W., 2022)
STATE WORKERS’ COMPENSATION
Each state has different laws, procedures, statutes of limitations, and regulations regarding workers' compensation. Remember that workers' compensation claims are not lawsuits; they are claims for benefits and are part of a 'no-fault' system. This means there is no need to prove negligence or fault. Instead, a worker needs to prove he or she was injured, the injury was work-related, and the cause of the injury, in the context of this article, was the vaccine. (Halibi, S., 2022) Employees can also make claims for psychological and emotional distress. Also, filing a workers' compensation claim does not prevent an employee from filing claims through other legal channels for compensation. However, because workers' compensation is not a lawsuit, it does not provide payment for pain and suffering, and there are no punitive damages. Instead, it offers compensation for medical costs and lost time from work, including reimbursement for expenses related to medical treatment. There are also benefits for death claims and survivors' benefits. Workers' compensation can provide prompt financial relief, needed medical treatment, and long-term support.
If you are dealing with a vaccine-related injury, finding a lawyer in your state who is an expert in workers' compensation and is willing to take on a vaccine-injury case is important. Additionally, having a doctor who is willing to confirm that the injury is due to the vaccine (causality) is essential. In some states, doctors and lawyers may be reluctant to handle vaccine-injury cases.
It has been challenging to find workers' compensation cases for vaccine injuries because each state has its own database, and some states do not make their claims data or injury statistics available. Many people have not been aware or encouraged to file workers' compensation claims for vaccine injuries, which adds to the difficulty of finding these cases.
One important factor in vaccine injury in state workers' compensation cases is whether the employer required the vaccine or if it was the employee's choice. If the employer mandated the vaccine and an injury occurred as a result, it would be considered work-related and compensable through workers' compensation. However, if the vaccine was not mandated but just strongly encouraged, many claims are denied because the injury is not considered work-related.
STATE WORKER COMPENSATION CLAIMS:
A firefighter incurred serious side effects due to Moderna COVID-19 vaccination. Although the vaccine was not mandated, the employer strongly encouraged it. The claim was considered to fall under the "dual purpose" rule, meaning it was mutually beneficial to both employer and employee. The employer encouraged vaccination, as it potentially prevented infecting others as well as limited overtime costs due to employee illness. Therefore, it benefited the employer and was not purely a personal decision by the employee. The court ruled that the injury was covered.
State of New York Workers' Compensation Board
The following two successful New York workers' compensation cases are not cited in this paper, because initial decisions from Administrative Law Judges in New York are not published. If there is an appeal, the decision from the Board Panel does get published. However, the first case we will discuss was not appealed, so there is no public record. The second case will be appealed, and the Board will issue a ruling; but this will probably not occur for a year. So, currently, there is no public record of the second case either.
We have knowledge of these two cases from the attorney who represented the claimants and wishes to remain anonymous. The attorney has given us permission to use the following redacted information for educational purposes only.
First Case: The hearing was held in 2023. The claimant had a work-related adverse reaction to the COVID-19 booster. There was prima facie medical evidence for post-vaccine myositis with mild scapular dyskinesia. The decision: medical treatment and care as necessary. The plaintiff was then able to amend the case to include consequential depression without the need for further litigation as the independent medical examiner agreed it was related to the original injury. So, the claimant received coverage for both physical and emotional injury.
Second Case: The second case occurred in 2024 and involved a claimant who was coerced and incentivized to take the COVID vaccine but was not mandated to do so. The judge agreed with the plaintiff’s position that the claimant was acting within the course and scope of employment when he got the vaccine even though his employer did not mandate it. The claimant received a written decision within a few days; but, until the decision is appealed, and the Board issues a ruling, nothing will be published online. So, as of now, there is no public record of this case.
Idaho Workers’ Compensation Claims:
Although copies of claims in Idaho are not publicly available, a summary of COVID-19 vaccine injury claims as of October 31, 2021, is available. Idaho's workers' compensation had already received 53 COVID-19 vaccine-related claims as of that date. Eleven of the 53 claims were denied. Out of 53 claims, 42 (79%) were approved. Although we do not have more recent data, this statistic bodes well for workers' compensation claims for COVID vaccine-injuries in Idaho.
In April 2021, the city of Cedar Rapids, Iowa, began hosting vaccine clinics and sending out emails and newsletters encouraging, but not requiring, city employees to get vaccinated. Larry Driscoll, a Cedar Rapids city employee, decided to get vaccinated, which he says was partly due to the City's repeated promotion. He got the COVID-19 vaccine and immediately suffered adverse reactions. He filed a workers' compensation claim arguing that his injuries stemmed from his work for the city.
STATUS: On January 5, 2024, the Iowa Workers' Compensation Commissioner reviewed the matter and ruled that, while the City had encouraged workers to get vaccinated, it did not require workers to do so. They found that claimant’s injuries did not arise out of or occur in the course of employment. The worker's compensation claim was then denied. The Plaintiff is now appealing that decision in Polk Country District Court, where he is seeking judicial review.
SIGNIFICANCE:
The case is significant as to whether vaccination was mandatory or merely encouraged by the employer, which is a central theme in workers' compensation cases at the state level. As we have seen in the earlier cases discussed in this section, several claims have found that, even though the vaccine was not mandated, there was a benefit to the employer for having their employees get the COVID vaccine and have approved the claim. However, that may not be the situation for this claimant. We are unable to find a more current update for this case.
Plaintiff was a highly regarded and longtime employee of Lockheed Martin in California. In 2021, she suffered severe adverse reactions to the second dose of the Pfizer COVID-19 vaccine, resulting in debilitating chronic medical issues which caused her to be unable to perform the material functions of her job. She submitted a claim for long-term disability benefits, which was denied after eight months.
The defendant's insurance company obfuscated the plaintiff's attempts to secure benefits by not responding, delaying responses, and making the plaintiff jump through various administrative hoops. The plaintiff eventually was able to appeal the denial and submitted additional supporting documentation. The plaintiff has filed a complaint with the court requesting payment of disability benefits, a judicial declaration that she is entitled to future disability benefits, attorney fees, and payment of pre-judgment and post-judgment interest as allowed under Employee Retirement Income Security Act of 1974 (ERISA).
The case is currently scheduled for a settlement conference to be held prior to November 2024.
HOPE
The authors wish to end this paper on a high note. In this last section, we will discuss approaches and strategies being pursued by various entities and individuals that offer hope for the fairness long overdue for the COVID-19 vaccine injured.
LEGISLATION:
On March 5, 2024, Representative Chip Roy (R-TX) introduced the 'Let Injured Americans Be Legally Empowered' (LIABLE) Act, a bill that would empower Americans to hold COVID-19 vaccine manufacturers liable for any losses their vaccines caused. The legislation would strip the liability protections COVID-19 vaccine manufacturers now enjoy. This would enable Americans injured by the shots to directly sue the vaccine companies. It would retroactively remove protections from the Public Readiness and Emergency Preparedness Act (PREP Act) for COVID-19 vaccine manufacturers. The bill states, "No federal law ... may make the manufacturer of a COVID-19 vaccine immune from suit or liability, or limit the liability of such a manufacturer, with respect to claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a COVID–19 vaccine." The legislation has been referred to the House Committee on the Judiciary. (GovTrack.us. (2024). H.R. 7551 — 118th Congress: Let Injured Americans Be Legally Empowered Act. Retrieved (LIABLE Act, 2024).)
Jury Awards $687,000 to BlueCross BlueShield Scientist Fired for Refusing COVID-19 Vaccine
This is a great outcome! On June 6, 2024, a federal jury awarded $687,000 to a research scientist who was fired from BlueCross BlueShield of Tennessee for refusing to comply with the company’s COVID-19 vaccine mandate. The lawsuit claimed that BlueCross BlueShield violated Title VII of the Civil Rights Act of 1964 by firing the employee for religious reasons, as the act prohibits discrimination based on religion in employment. A Tennessee jury awarded the former employee of BlueCross BlueShield over $680,000 in back pay and compensatory damages, and $500,000 in punitive damages. (Benton v. BlueCross BlueShield of Tennessee, 2024)
SIGNIFICANCE:
The times, they are a changing.
This is an encouraging verdict for those who refused the COVID-19 vaccine and not only lost their jobs but suffered the derision and vilification of being labeled an anti-vaxxer and ‘grandma-killer.’ It indicates a significant shift in attitudes and who is perceived as the antagonists. Not only did the employee win her suit, but the jury awarded punitive damages of $500,000 in a separate verdict.
Moms for America
Moms for America is an Ohio-based nationwide non-profit network organization of over half a million moms. Nine women joined a Moms for America lawsuit in the Middle District of Florida in Tampa, against the U.S. Department of Health and Human Services, the Secretary of the Health and Human Services, the United States of America, and the President of the United States of America, Joe Biden. The lawsuit claims they were harmed by the COVID-19 vaccinations and that the PREP Act is unconstitutional, as well as that the compensatory program established by the PREP Act (CICP) violates fundamental rights. They argue the PREP Act immunizes the defendants from a staggering panoply of fundamental and historically enshrined common law causes of action like negligence, medical malpractice, gross negligence, products liability, wrongful death, and even intentional torts like assault and battery under a completely subjective risk/benefit analysis and that the Act sets an unreasonably short one-year statute of limitations for those who may be injured. (Moms for America v. U.S. Health and Human Services, 2024).
IVERMECTIN:
A wrongful death lawsuit was filed against a hospital that refused to treat COVID-19 illness with ivermectin.
Scott Mantel, whose wife died from complications related to COVID-19, filed a lawsuit against the hospital that treated her. He contends that the hospital refused to administer ivermectin and that the refusal contributed to her death.
Ms. Bucko went into the hospital in February 2021 with a diagnosis of severe COVID-19 illness. Her illness did not respond to the hospital's standard treatment protocols, and her condition steadily worsened. After nearly a month in the hospital, his wife was placed on a ventilator. Unwilling to watch his wife die, Mr. Mantel researched possible alternative treatments, reading about patients with severe COVID-19 who were treated successfully with ivermectin. The treating infectious disease doctor agreed that ivermectin might help, and he ordered an initial five-day order for ivermectin. Senior hospital administrators immediately blocked the ivermectin order. Mr. Mantel then went to court and obtained an emergency order requiring the hospital to administer the ivermectin to his wife. When Ms. Bucko started being treated with ivermectin, her respiratory and cardiovascular functions significantly improved.
Mr. Mantel discussed additional ivermectin treatment with the infectious disease doctor, who agreed that Ms. Bucko had improved on ivermectin. He wrote an order, this time for 35 days and with an increased dosage. Once again, the hospital blocked his order. So, Mr. Mantel returned to court and obtained a second emergency order, requiring the hospital to administer the ivermectin to Ms. Bucko. Once the ivermectin was resumed, Ms. Bucko's condition started showing improvement; but, instead of treating Ms. Bucko for the full 35 days as prescribed, the order was changed to stop the ivermectin after only five days. When Mr. Mantel questioned what was happening, Ms. Bucko's infectious disease doctor told him he was not allowed to write any more ivermectin orders. Mr. Mantel was preparing to return to court for a third time when his wife died. The lawsuit seeks compensation for himself and his two children and punitive damages against the hospital. The claim is that the hospital’s withholding of ivermectin after it was prescribed constituted a breach of standard medical care. (Mantel v. South Nassau Communities Hospital, 2024)
STATUS:
The defendants claim that they were protected under the PREP Act. The defendants have appealed the decision to the Appellate Division of the Supreme Court of the State of New York and have filed motions to dismiss. We await a decision on the defendants’ appeal.
SIGNIFICANCE:
A great victory for the use of ivermectin if the decision holds.
CONCLUSION
The authors hope that this article has given you some encouragement, as well as several avenues and resources to pursue. While many of the efforts discussed in this paper have not yet succeeded or are in limbo, we are just now beginning to see a crack in their armor. If even one of these landmark strategies can overcome the significant obstacles stacked against it, the floodgates will open, foster additional opportunities for restitution, and pave the way for justice.
The silver lining is that the public, journalists, lawyers, scientific experts, and even politicians are increasingly aware of the grave miscarriage of justice perpetrated on the American people by our government and our public health agencies in collusion with the pharmaceutical industry. With this growing awareness, more brave citizens and organizations have stepped up to the challenge.
LEGAL
Vaccine Injury Lawyers - https://ecf.cofc.uscourts.gov/cgi-bin/CFC_VaccineAttorneys.pl
This list represents attorneys who have expressed a willingness to accept vaccine injury cases and is offered as a convenient reference to pro se petitioners and potential petitioners in the program. Pro se petitioners and potential petitioners are not required, but are encouraged, to retain an attorney; and, if they choose to do so, they are not limited to the attorneys on this list. Attorneys on this list include those who have an active bar status in the United States Court of Federal Claims and who have had an active case before the court within the past three years.
Truth for Health Foundation - https://www.truthforhealth.org/about-us-truth-for-health-foundation/
Its mission is to advocate and provide legal defense of basic human and civil rights related to preservation of life, the right to bodily integrity, health and quality of life, medical freedom, and securing the autonomy of the doctor-patient relationship and the ability to engage in unconstrained professional medical decision-making tailored to the needs of the individual person.
Health Freedom Counsel - https://freedomcounsel.org/about/
Freedom Counsel works with hundreds of attorneys, medical professionals, scientists, and citizens who initially joined forces to fight mandates, shutdowns, medical interference, deadly hospital protocols, dangerous “vaccines,” data manipulation, and other attacks on personal rights and liberties.
Law Offices of Siri & Glimstad - https://www.sirillp.com/vaccine-injury-attorneys/
This law office may be able to help take legal action if you, your child, or loved one has been injured by a vaccine. Free case evaluation.
Aaron Siri (https://www.sirillp.com/aaron-siri/) is the managing partner of Siri & Glimstad. He has a wide range of experience in complex civil matters. Free case evaluation.
COVID Legal USA - https://covidlegalusa.com
A group of paralegals, researchers, legal writers and data engineers who have created a high-tech database and intuitive algorithms that act together as a robot-advisor and document preparation tool. Could assist you if you are not sure where to turn or what information is available.
Liberty Counsel - https://lc.org
A law firm advancing religious freedom, the sanctity of human life, and the family through strategic litigation.
Patrick Hollingsworth - https://2hlaw.com/practice-areas/covid-vaccine-injury/
A workers’ compensation attorney in California who may be able to assist in getting compensation. Free case evaluation.
Ben Carlisle - https://www.bencarlislelaw.com
An attorney in New York specializing in workers’ compensation, representing both employees and employers. He started his own firm so that he can concentrate attention on workers who have been injured by employer-mandated vaccines. Free case evaluation.
We the Patriots USA - https://wethepatriotsusa.org/about/
We The Patriots USA is committed to providing pro bono legal representation to everyday, freedom-loving Patriots, as shown through lawsuits filed and victories claimed for health freedom, religious freedom, Second Amendment rights, free speech, and much more.
SUPPORT GROUPS
We Can Talk About It – Campaign for people suffering from COVID-19 vaccine injuries and support for those who have injuries.
https://www.canwetalkaboutit.org
COVID-19 support groups for those struggling with injuries. This uncensored support group is for those who are vaccine injured by the COVID-19 vaccine or those that have those they know injured. Open discussion, support, resources and information.
https://www.trialsitenews.com/groups/4/covid-vaccine-injury-support-group
COVID-19 Vaccine Injury Facebook private support group https://www.facebook.com/groups/786466028732617/discussion/preview
Vaccine Safety Research Fund – Community where people can connect, gather, speak freely, network, share research and resources, and stay up to date on current events.
Private support group for those who are vaccine injured.
https://www.facebook.com/groups/786466028732617/
Patient Safety Learning Hub
Over 30 support groups for the covid-19 vaccine injured.
https://www.pslhub.org/forums/forum/260-coronavirus-covid-19/
Health Freedom Defense
Educating Americans on informed consent, advocating for human rights and bodily autonomy for all people, and legally challenging unethical mandates, and laws.
https://healthfreedomdefense.org/about/
React 19
Providing support for people with COVID-19 vaccine injuries through the CARES fund, which provides financial assistance to those injured by COVID vaccine.
Realnotrare
Website with collection of stories (97 pages!) of those who have been vaccine injured by the COVID-19. There are hundreds if not thousands of stories on this site. Also have groups on X’s Spaces.
FLCCC
Forums and community support for those who are covid vaccine injured.
https://covid19criticalcare.com/protocol/i-prevent-vaccine-injury/
Team Humanity
A newsletter providing community support in the purple intersection of the red and blue politics for the vaccine injured.
REPORTING A COVID-19 VACCINE INJURY
Report your COVID-19 vaccine injury: https://icandecide.org/report-a-vaccine-injury/
Government website for reporting adverse event or reaction to vaccine:
Vaccine Injury Tracker:
MEDICAL
React 19’s database of providers treating those with COVID-19 injuries.
https://react19.org/patients/find-a-provider
Pharmacies that will fill prescriptions for ivermectin, hydroxychloroquine, and other medications used in treating COVID-19 injuries.
https://covid19criticalcare.com/pharmacies/
Sickandabandoned.com’s resources for COVID-19 injured.
https://sickandabandoned.com/vaccine-injury-resources/
Dr. Pierre Kory offers specialized evaluation and treatment plans for COVID-19, Long COVID, and vaccine injury syndromes.
FLCCC
Founded by a group of leading critical care specialists in March 2020, the Front Line COVID-19 Critical Care Alliance (FLCCC) is dedicated to helping prevent and treat COVID, and to helping patients take charge of other areas of their health. It offers a database of providers who will take your injury seriously.
https://covid19criticalcare.com/providers/
React 19 Vax Recovery Group digs deep into the science behind what is going on behind COVID vaccine adverse events and possible mechanisms of action. Read the latest publications and discuss solutions that could possibly help patients.
https://www.trialsitenews.com/groups/25/react19-vax-recovery-project-science-and-solutions
Government Benefits site you may be eligible for if vaccine injured.
https://www.usa.gov/benefits , Financial Assistance
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thanks for sharing!
Deep and wide, an old hymn from my youth but everytime I consider what is still to come from the vaccines. Remember that the government vaccinated children, all ready aware of the dangers of the vaccine. When these children are seniors what ailments will they have that will be caused by the vaccine? I hope I’m wrong but I feel that the genocide is just waiting. Look at the drop in birth rates, unusual deaths from around the world except for countries that didn’t vaccinate. With the rise of government health care they will decide what the appropriate care will be. Are you past your prime and not a benefit for society? Why spend money to save unproductive lives, all the horror stories told in the day are coming true. The more government controls the worse things will become. I’m old enough I hope I don’t have to see it but we’re close as government control is here.