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Wyoming Supreme Court Grants Immunity to DOC in Prison COVID-19 Vaccine Mix-Up

by David M. Reutter

On October 26, 2023, the Supreme Court of Wyoming held that the federal Public Readiness and Emergency Preparedness (PREP) Act shielded the state from liability in a lawsuit alleging a nurse negligently injected three prisoners with a COVID-19 vaccine other than the one listed on the consent form they signed.

Wyoming Medium Correctional prisoners Chester L. Bird, Ryan A. Brown, and Richard B. Dague on March 20, 2021, signed a form entitled ‘COVID-19 Vaccine 2020–2021 Patient Consent or Declination.’ Their signatures on the forms were witnessed. The form specified the prisoners were “being offered the COVID-19 Vaccine that has been granted Emergency Use Authorization by the Food and Drug Administration, which may prevent Coronavirus Disease 2019 (COVID-19).” Though the form did not specify which vaccine was being offered, it referenced vaccines manufactured by Pfizer and Moderna “in a statement located in the middle of the form,” the Court recalled.

The day before the prisoners received the vaccination, prison staff published a notice on the prisoner television channel specifying that another COVID-19 vaccine manufactured by Janssen would be administered. But the prisoners alleged they did not see the notice. On March 19, 2021, a contracted healthcare provider injected the prisoners with the Janssen vaccine.

Once they found out, the prisoners filed a complaint in U.S. District Court for the District of Wyoming. But that court found they did not plausibly establish the warden committed a deliberate, intentional act violating their rights, so the warden was therefore entitled to qualified immunity (QI). The U.S. Court of Appeals for the Tenth Circuit upheld the dismissal on December 28, 2022. See: Bird v. Martinez-Ellis, 2022 U.S. App. LEXIS 35749 (10th Cir.)

Simultaneous with that complaint, the prisoners filed another in state District Court for the Eighth Judicial Circuit. Their negligence action sought damages for bodily injury and emotional distress. After thrice allowing amendment of the complaint, that court granted Defendants’ motion to dismiss. The prisoners appealed.

The Wyoming Supreme Court found the state was immune from suit under the PREP Act. That law protects a covered defendant “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,” as codified at 42 U.S.C. § 247d-6d(a)(1)d. As the Court explained, “[t]he PREP Act is an immunity scheme fully preempting any state law which differs or conflicts with its provisions on the administration or use of a covered countermeasure.”

For immunity to be extended to administration of a particular vaccine, two things are required. First, the Secretary of the federal Department of Health and Human Services must declare a Public Health Emergency and then the vaccine must also be recommended as a countermeasure. COVID-19 was declared such an emergency on January 31, 2020, and the vaccines manufactured by Pfizer, Moderna and Janssen subsequently received recommendations as countermeasures.

Therefore, the Court found the state was immune from suit and liability. It therefore affirmed dismissal of the suit, finding the district court did not err when it declined to allow limited discovery before rendering its decision. See: Bird v. State, 2023 WY 102.  

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Related legal case

Bird v. State