NORTH CAROLINA SUPREME COURT ACCEPTS FORCED VACCINE APPEAL
The Court of Appeals determined that the PREP Act, provides immunity for state actors for violating the North Carolina constitutional rights of citizens.
In the latest twist on the ongoing battle over individual medical choices, the Supreme Court of North Carolina has agreed to take up an appeal from the appellate court’s unfavorable ruling. This case has been appealed to the North Carolina Supreme Court after the lower state Court of Appeals panel ruled unanimously in March against mother Emily Happel and son Tanner Smith.
BACKGROUND OF CASE
Plaintiff Tanner Smith was 14 years of age and was a football player at Western Guilford High School, a public school that is within the Guilford County Schools school district. On August 14, 2021, Tanner was informed by letter on Guilford County Schools letterhead that there was a cluster of COVID-19 cases among the football team, and because of this cluster he would need to report for a COVID-19 test to continue participating as a player on the Western Guilford High School football team. The letter informed Tanner that he would be tested on August 20, 2021, that the testing would take place at Northwest Guilford High, and that Old North State Medical Society “will be conducting testing, consent for testing is required.”
On August 20, 2021, Tanner was driven by his stepfather, Brett Happel, to the testing facility. When they arrived, Tanner went into the testing site to be tested, and Mr. Happel remained in his vehicle. Upon Tanner’s entrance to the facility, workers at the testing site gave Tanner a form to fill out. Tanner believed the form to be related to the required COVID-19 test.
Tanner was shown to a seat, and the workers at the clinic attempted to contact Tanner’s mother, Emily Happel, without success. They were attempting to contact her to gain consent to administer a COVID-19 vaccination to Tanner. At no point did the clinic workers attempt to contact Mr. Happel, who was waiting in the vehicle outside the testing clinic.
After the workers failed to contact Mrs. Happel, one of the workers instructed the other worker to “give it to him anyway.” Tanner then indicated to the workers that he did not want to receive the vaccine, and that he was just expecting to be tested for COVID-19. Despite failing to get parental consent or the consent of Tanner himself, the workers administered a COVID-19 dose to Tanner.
The Court of Appeals decision was based solely on the PREP Act and its interpretation. The trial court and the Court of Appeals interpreted the PREP Act so broadly as to shield nearly every act, no matter how egregious. 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. See Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845, 853 (6th Cir. 2023) (discussing decisions of other courts dealing with preemption of state-law claims). Further, the Court of Appeals and the trial court’s decision rendered totally useless N.C. Gen. Stat. § 90-21.5(a1) which prohibited the very acts committed by defendants.
The trial court also erred in finding that plaintiff Smith’s battery claim was an adequate state remedy for the violation of plaintiff Happel’s right to raise one’s child and to have control over his care and custody in accordance with her conscience. (R. 52-53). These claims are not similar, other than they arise from the same set of facts. Because of this error, the trial court determined that no constitutional claim was viable.
“Tanner Smith and his mother, Emily Happel (collectively), appeal the trial court’s dismissal of their claims against the Guilford County Board of Education and Old North State Medical Society, Inc. (“ONS Medical Society”) based on, among other things, statutory immunity under the federal Public Readiness and Emergency. Preparedness Act (“PREP Act”). After careful review of the relevant statutes and case law, the Court of Appeal “affirm the trial court’s order.””
North Carolina state law requires that “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.” N.C. Gen. Stat. § 90-21.5(a1).
The plaintiffs highlight a prior influenza case similar to their claim in “Parker v. St. Lawrence Cnty. Pub. Health Dep’t, a pre-COVID-19 case, the defendant health department held a vaccination clinic due to the outbreak of the H1N1 influenza virus, and a nurse employed by the health department administered a vaccination to a child without obtaining an executed parental consent form from the plaintiff parent.”
The parent alleged both negligence and battery. The court in Parker held, “considering . . . the sweeping language of the statute's immunity provision, . . . Congress intended to preempt all state law tort claims arising from the administration of covered countermeasures . . . including one based upon a defendant's failure to obtain consent.”
The lower Court referenced “Cowen v. Walgreen Co., the plaintiff alleged that she visited a Walgreens store for a flu vaccination but that a Walgreens employee administered a COVID-19 vaccination to the plaintiff without her knowledge.” The court in Cowen held, “While it is true that other vaccinations or procedures might have also been administered, this does not change the fact that Plaintiff's injuries actually resulted from administration of the COVID-19 vaccine. The PREP Act therefore applies.”
Finally, in the M.T. v. Walmart Stores, Inc., the plaintiff mother sued defendant Walmart after one of its pharmacists administered a COVID-19 vaccine to her minor child without her consent. The court in M.T. noted that the scope of immunity under the PREP Act “is broad and applies to ‘any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.”’
PLAINTIFFS’ MOTION TO APPEAL NORTH CAROLINA SUPREME COURT
Plaintiffs Emily and Tanner Smith state the judgment directly involves a substantial question arising under the Constitution of the State of North Carolina art. I, §§ 1, 13, and 19. that the judgment of the Court of Appeals determined that the PREP Act, codified in federal 42 U.S.C. § 247d-6d doesn’t provide immunity for state actors and violates the North Carolina constitutional rights of its citizens.
The question before the Supreme Court of North Carolina is to determine as follows;
Whether the trial court and the Court of Appeals erred when they determined that the PREP Act provided immunity to the defendants for constitutional violations and pre-empted all state law claims.
Whether the trial court erred in dismissing, and the Court of Appeals erred in not reversing the dismissal of, plaintiffs’ complaint alleging state constitutional claims on the basis of the availability of an adequate state law remedy.
Whether the trial court erred in dismissing, and the Court of Appeals erred in not reversing the dismissal of, plaintiffs’ complaint by determining that the complaint failed to adequately plead vicarious liability against the defendants on plaintiffs’ battery claim.
Whether the trial court erred determining, and the Court of Appeals erred in not reversing, that the Guilford County Board of Education was immune from liability under the third-party use of school facilities statute N.C. Gen. Stat. § 115C-524.
Whether the trial court erred in determining, and the Court of Appeals erred in not reversing, that the constitutional claims against Old North State Medical Society, Inc. must be dismissed because that defendant was not acting under color of state law or was a state actor.
Because the Court of Appeals decision was based solely on the PREP Act, the Court of Appeals did not consider the other issues raised on appeal. The trial court also erred in finding that plaintiff Smith’s battery claim was an adequate state remedy for the violation of plaintiff Happel’s right to raise one’s child and to have control over his care and custody in accordance with her conscience. (R. 52-53).
Similarly, the trial court erred in determining that there were insufficient pleadings to allege that the vaccine clinic workers were acting within the scope of their employment by administering a vaccine.
The trial court also erred when it determined that N.C. Gen. Stat. 115C- 524(c) provided immunity to the defendant Board of Education because defendant ONSMS was using the facility for reasons “other than school purposes.”
Finally, the trial court erred when it determined that ONSMS was not a state actor or acting under color of state law, and could not be liable for constitutional violations. The trial court made this determination despite the alleged facts in the complaint and the advertisement clearly showing that defendants were engaged in a partnership. See Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192 (1988); Dennis v. Sparks, 449 U.S. 24 (1980).
https://www.ncappellatecourts.org/show-file.php?document_id=348469
Essentially the plaintiffs are arguing the state constitution and subsequent state regulations supersede the federal Prep Act in seeking remedy. The Tenth Amendment which stipulates “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Supreme Court of North Carolina must determine whether the Prep Act under 42 U.S.C. § 247d-6d(b) and subsection (a) apply in regarding “to the activities so recommended.” Subsection (a), in turn, provides liability immunity.”
The Prep Act states “Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.”
U.S.C. § 247d-6d(a)(1)
As for the scope of liability immunity, the PREP Act defines loss in the following manner:
For purposes of this section, the term “loss” means any type of loss, including—
(i) death;
(ii) physical, mental, or emotional injury, illness, disability, or condition;
(iii) fear of physical, mental, or emotional injury, illness, disability, or condition, including any need for medical monitoring; and
(iv) loss of or damage to property, including business interruption loss.
After the petition was filed, eight state Republican lawmakers signed their names to a friend-of-the-court brief asking the supreme court to take up the case, the Journal reported.
The law firm of Stephen G. Rawson, Amiel Rossabi attorney of law, and Gavin Reardon attorney of law present this motion in front of the North Carolina Supreme Court for consideration on its merits.
Supreme Court of North Carolina Takes Plaintiffs Appeal
The petition for discretionary review as to additional issues filed by plaintiffs on 5 April 2024 is allowed as to the first issue only.
By order of the Court in Conference, this the 21st day of May 2024.
Please share and subscribe to my newsletter. My interests are defending our Constitution and preserving our freedoms under our constitutional republic.
.
Reading the amici curiae brief really gives me hope for the restoration of freedom. God's will be done.
The lower court seems to have made several errors, as if it didn't give US citizens enough thought.
It goes unsaid that the stepfather should have known he needed to be there for any jab or test - but I will say it to encourage parents - they cannot be too careful these days!