Top NC court skeptical that federal law blocks teen’s forced COVID vaccination suit

Chief Justice Paul Newby asks a question during oral arguments at the North Carolina Supreme Court. (Image from the Supreme Court of North Carolina YouTube channel)

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  • North Carolina Supreme Court justices expressed skepticism that a federal law blocks a lawsuit from a 14-year-old and his mother over a forced COVID-19 vaccination.
  • Tanner Smith and Emily Happel sued the Guilford County school board and the Old North State Medical Society over the vaccination, which took place in 2021.
  • Lower courts have ruled that the federal Public Readiness and Emergency Preparedness Act offered legal immunity to the school board and medical society.

North Carolina Supreme Court justices expressed skepticism Wednesday that a federal law blocks a 14-year-old boy and his mother from pursuing a lawsuit based on the teen’s forced vaccination against COVID-19.

Tanner Smith and his mother, Emily Happel, sued the Guilford County school board and the Old North State Medical Society over the vaccination, which took place at a Guilford high school in 2021.

A medical society clinic worker administered the vaccine despite Smith’s objection and without his mother’s consent. One worker said, “Give it to him anyway,” after Smith objected to the vaccine shot.

Lower courts have ruled against Smith and Happel. They have determined that the federal Public Readiness and Emergency Preparedness Act offered the school system and the medical society immunity against lawsuits. A unanimous state Appeals Court panel ruled against the teen and his mother despite labeling the forced vaccination “egregious.”

“Congress didn’t want to throw informed consent out the window,” argued lawyer Steven Walker on Wednesday while representing Smith and Happel.

Steven Walker at the North Carolina Supreme Court
Lawyer Steven Walker argues at the North Carolina Supreme Court. (Image from the Supreme Court of North Carolina YouTube channel)

“We’re trying to stop lawsuits against drug manufacturers and against covered people who are trying to help in a situation, who are trying to help in an emergency, not when they do something like this, which is to give medical treatment without any kind of consent,” Walker said. “To say that Congress was authorizing unconsented-to treatment at the whim of a healthcare worker on an underaged patient without parental consent? That makes no sense.”

State legislators passed a law in 2021 banning the conduct addressed in the lawsuit, Walker said. “The General Assembly has said this is a no-no.”

“The fundamental right of a parent to the care and control of the upbringing of her child and Tanner’s rights to individual liberty are older than the PREP Act,” he said. “In fact, they’re older than and Constitution of North Carolina, and they’re older than the Constitution of the United States. They are fundamental rights.”

The PREP Act was designed to help protect all people participating in response to a national health emergency, argued lawyer Steve Rawson for the Guilford school board and Old North State Medical Society.

Steve Rawson at the North Carolina Supreme Court
Lawyer Steve Rawson argues at the North Carolina Supreme Court. (Image from the Supreme Court of North Carolina YouTube channel)

“The point of the PREP Act is to give our medical personnel, our manufacturing personnel, our distribution personnel the confidence to do their work quickly but effectively as they can, recognizing that if there are missteps, if there are errors in judgment that are … directly related to the purpose of the PREP Act, that they and their employers and the institutions that are all joining in this chain to address this national emergency are not going to break down under the threat of liability,” Rawson said.

Supreme Courts in Wyoming, Nevada, and Vermont have joined the Kansas Court of Appeals and federal courts in Oklahoma and Kentucky in ruling against plaintiffs in similar cases, Rawson said.

Chief Justice Paul Newby spelled out potential consequences of ruling in favor of the school board and medical society.

“If we rule wrongly, don’t we open up the possibility that someone — for reasons of their own — under these circumstances could go around and involuntarily provide this vaccine randomly to whomever they chose and there would be no consequences?” Newby asked.

Newby interjected when Rawson suggested the case involved no coercion.

“How can you say there’s no coercion when the child was 14 and the medical providers did this?” the chief justice asked.

Justice Trey Allen focused on the types of claims Congress listed as covered by the PREP Act. “None of the examples that are given are anything like what’s at issue here,” he said.

Justices Trey Allen, Tamara Barringer, and Anita Earls of the North Carolina Supreme Court
Justice Trey Allen asks a question during oral arguments at the North Carolina Supreme Court. (Image from the Supreme Court of North Carolina YouTube channel)

“Shouldn’t we want to interpret this statute in a way that doesn’t potentially bring it into conflict with fundamental constitutional rights?” he asked Rawson.

Like the chief justice, Allen pointed to negative consequences of ruling in favor of the school board and medical society.

“Aren’t you in effect then saying, well, Congress intended to allow organizations like the society to go out and administer the vaccine without any consent whatsoever and face no civil liability?” Allen asked Rawson.

Justice Phil Berger Jr. focused on the potential conflict between the PREP Act and state law requiring consent for the administration of an emergency vaccine.

“Would you agree that your interpretation of the PREP Act places local entities — local governmental units — under some pressure to violate state … consent law here?” he asked Rawson.

In August 2021, Smith was a 14-year-old Western Guilford High School football player. His family learned in a letter from the Guilford schools that Smith might have been affected by a COVID-19 “cluster” involving the team. He would not be allowed to return to practice until getting a COVID test. Free testing would be provided at Northwest Guilford High School.

Smith’s stepfather drove him to the testing site and waited outside the building. The teenager was asked to fill out a form while a clinic worker tried unsuccessfully to contact his mother. Smith and his family didn’t know that COVID-19 vaccine shots were available at the same location.

 “After failing to make contact with Tanner’s mother, one of the workers instructed the other worker to ‘give it to him anyway.’ Tanner 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,” Appeals Court Judge April Wood wrote in that court’s decision.

Happel and Smith filed suit in August 2022. A trial judge dismissed the case in March 2023.    

Appellate judges ruled that both the school board and medical society were covered by the PREP Act. A declaration from the secretary of the US Department of Health and Human Services in March 2020 offered protection related to the COVID-19 vaccine.

“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,” Wood wrote.

There is no deadline for the state Supreme Court to issue its decision in Happel v. Guilford County Board of Education.

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