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Megyn Kelly on Monday hosted a discussion with legal experts about two pending lawsuits aimed at holding COVID-19 vaccine manufacturers and the federal government accountable for deaths related to the vaccines.
The lawsuits, filed against COVID-19 vaccine manufacturer Pfizer and the U.S. Department of Defense (DOD), are bringing attention to injuries and deaths allegedly caused by the vaccines.
Plaintiffs in the two lawsuits aim to hold these entities accountable by proving that their constitutional rights were violated and those who pushed the vaccines misrepresented the risks.
However, health freedom rights attorney and Children’s Health Defense (CHD) senior outside counsel Ray Flores told The Defender these lawsuits face significant challenges due to liability protections under the Public Readiness and Emergency Preparedness (PREP) Act.
The first lawsuit Kelly discussed was brought by Dan Hartman of Ontario, Canada, who is suing Pfizer for $35.6 million for the wrongful death of his 17-year-old son Sean on Sept. 27, 2021. Sean was found deceased in his bedroom by his mother 33 days after receiving the first dose of the COVID-19 vaccine.
Kelly said the lawsuit alleges willful misconduct because “Pfizer owed a duty of care to Hartman, to accurately inform him of all the risks associated with this vaccine, and that … they provided an incorrect characterization of the efficacy data [and] discontinued results of adverse events on vaccinated people in the study [by vaccinating the placebo arm],” among other claims.
In the second lawsuit, supported by CHD, the family of George Watts, Jr. from Lockwood, New York is suing the DOD for willful misconduct in the death of their son in October 2021, a month after he took the second dose of the Pfizer vaccine.
Watts was 24 when he died from complications of vaccine-induced myocarditis. Flores represents the family in the Watts case.
Kelly said the lawsuit accuses the DOD of committing willful misconduct by “deceiving millions of Americans into taking the COVID vaccines, which they [plaintiffs] say were unsafe.”
Flores is opposing the motion, by contending that foreclosing all remedies violates the Fifth Amendment of the U.S. Constitution.
COVID vaccines ‘violated our civil rights’
Defense attorney Jonna Spilbor told Kelly the COVID-19 vaccines were “forced” through mandates, restrictions and scare tactics.
“You couldn’t go to a restaurant in New York City without showing your vaccine card for a time. Like you couldn’t do anything without showing your vaccine card. That’s force,” Spilbor said.
Attorney Arthur Aidala, host of the “Arthur Aidala Power Hour” radio show, pushed back on the claim that people were forced in these cases. He said Watts, for example, wanted to attend school in person and so chose to be vaccinated, but he had the option to refuse the vaccine and attend school online.
“Nobody was forced to get the shot,” Aidala said. “There were some circumstances like in the city, you’re going to lose your job. But these particular cases — to go play hockey or [go to school in person] — they were not forced.”
Spilbor responded, “Well, I think we probably will redefine ‘force’ then, because otherwise if we had listened to the government and didn’t want to get vaccinated, then you were going to be shut in your house.”
Spilbor referred to the “massive scare campaign” that told people, “You’re going to die, … you were going to kill other people if you didn’t get the vaccine.”
Kelly agreed with Spilbor, saying, “People were fired from the military, they were fired from teaching jobs, they were fired from hospital jobs, they couldn’t play sports, they couldn’t go to school if they refused to get the vaccine.”
Aidala argued that overturning immunity would set a bad precedent as it could discourage manufacturers from helping in future emergencies.
Kelly pushed back, saying the liability does not cover drug companies for “willful misconduct” if they intentionally misled the public about vaccine risks and hid adverse events during trials.
“You can’t immunize Pfizer or Moderna for willful malfeasance behind the scenes for knowingly endangering people,” she said.
Spilbor argued plaintiffs can prove “willful misconduct” by showing civil rights violations and intentional misleading on vaccine risks. “That’s a home run right there,” he said. “And I think that’s going to be very provable.”
“So these cases are saying, ‘Look, it was reckless. It violated our civil rights because we have a right to life, liberty and happiness’ — and well, if you’re dead, your civil rights have been violated — ‘And you did so recklessly for whatever your agenda was to roll out these vaccines without the proper protocol.’ …
“I know it sounds like it’s going to be a long shot, but it is a good avenue to get around the government’s claims of immunity. And it just might work. And if it does work, it could be big. It’ll be a large class action. That’s my prediction.”
Proving willful misconduct challenging under PREP Act
The PREP Act, enacted in 2005, provides broad immunity to “covered persons” and entities against legal claims over losses related to the administration or use of medical countermeasures during a public health emergency.
The only exception is for claims of “willful misconduct.” But those claims must meet strict requirements that no plaintiffs have ever even attempted to prove, Flores told The Defender.
No other attorney has properly brought a willful misconduct case under the PREP Act in its 18 years of existence, Flores said.
“The PREP Act is intentionally very complicated,” Flores said. “Willful misconduct is not recklessness or negligence” as most people — including Kelly and her guests — are framing it. “It is a term that is not to be used in the vernacular.”
Flores argued willful misconduct has three specific legal elements that must be proven with clear and convincing evidence: 1) It was an intentional act to achieve a wrongful purpose that was 2) knowingly performed with no justification in law or fact and 3) showed a disregard of a known or obvious risk that harm would outweigh the benefit.
The Watts case specifically aims to prove willful misconduct by framing the COVID-19 vaccines as an intentional act of prohibited human experimentation, Flores said.
“In other words, when they wrongfully promoted the experimental vaccines as ‘safe and effective,’ they did that in order to achieve the wrongful purpose of turning America into one giant human trial,” he said.
“And they knew from Doe v. Rumsfeld that they had no right to turn people into human guinea pigs again. And that’s in the case law,” he said.
In 2003, Doe v. Rumsfeld established that the military must seek informed consent before administering the anthrax vaccine to service members.
Flores said that for him, the PREP Act is an excellent springboard to discuss “Nuremberg and human guinea pigs within plausible legal context.”
Spate of lawsuits ‘nibbling away’ at PREP Act
Flores pointed to a number of lawsuits that “are nibbling away at the edges” of the PREP Act’s liability shield, attempting to hold vaccine manufacturers and the government accountable.
“Civil fraud seems to be working” for lawyers in some of these cases, Flores said, “when they plead that the administrator, the doctor or whoever, did not inform them [plaintiffs] of the other remedies, and only gave them the medical countermeasures.”
A lawsuit filed Oct. 10 by attorney Aaron Siri and the Informed Consent Action Network challenges the PREP Act and the Countermeasures Injury Compensation Program (CICP) for violating the “constitutional rights of those injured or killed by a COVID-19 vaccine.”
The complaint describes the CICP as “a wholly insufficient, unjust, underfunded, and consequently unconstitutional compensation scheme.”
Nowacki v. Gilead is now on interlocutory appeal after a Michigan state court judge determined that Gilead may be liable because of defects in the manufacturing of remdesivir, a charge not covered by the PREP Act. According to the judge in the case:
“And when the product has some contaminant in it, it is not meeting the requirements to avail itself of the PREP Act. It is no longer a covered countermeasure. It is an attempt at a covered countermeasure, but it is contaminated.”
That case is being heard under state law in Michigan, rather than in federal court, where the PREP Act would take precedence.
While asserting these lawsuits do not necessarily qualify as challenges to the PREP Act on its own terms, Flores said they are nonetheless “changing public perceptions” and are “putting us light years ahead of where we were even one month ago.”
The lawsuits “demonstrate groundswell of the frustration that follows the realization that the public has been had,” he added.
“The PREP Act must be abolished. The serious side effects, the deaths, the reports of contamination of these dangerous experimental biologics, the stinginess, and the foreclosure of all normal legal remedies demand that Congress revisit based on its unconstitutionality.”
People ‘tricked into believing the pandemic emergency is over’
Flores pointed out that, although now fully approved for those ages 12 and up, the COVID-19 vaccines are still being handled the same as they were under Emergency Use Authorization.
He showed as proof the new COVID-19 vaccine information sheet published by the Centers for Disease Control and Prevention that indicates injury compensation can only come through the PREP Act’s CICP.
“The PREP Act adds insult to injury since the CICP has compensated only 6 of over 1.5 million adverse events reported to VAERS,” Flores said.
“People have been tricked into believing the ‘pandemic emergency’ is over. It is not.” Flores said, adding that most people mistakenly believed that remedy for injuries from the current crop of COVID-19 vaccines would come under the less stringent National Vaccine Injury Compensation Program, which has paid out nearly $5 billion for injuries since 1988. More importantly, that program allows for attorney fees, whereas CICP doesn’t.
Flores said in April, “It doesn’t matter if a biologic is approved or simply EUA only. It is still covered by PREP, and COVID-19 countermeasure protections are definitely not going away next month.”
The secretary of the U.S. Department of Health and Human Services announced on April 14 that PREP Act coverage will extend to December 2024 for the administration of COVID-19 and seasonal influenza vaccines.
“Even more frightening is that something akin to OWS [Operation Warp Speed, formerly run by the DOD] is now going in-house in the White House,” Flores said, referring to the Office of Pandemic Preparedness and Response Policy, headed by retired Major General Paul Fredrichs.
Flores will be giving lectures on the PREP Act during the CHD’s 2nd Annual Conference in Savannah, Georgia, this weekend.