NEWFANE — A judge dealt some blows to a lawsuit seeking damages related to the vaccination of a 6-year-old for COVID-19 against his parents’ wishes at a West Brattleboro elementary school.
Last week, Judge Michael Kainen granted the state of Vermont’s motion to dismiss the suit and the Windham Southeast School District’s motion for judgment on the pleadings. The lawsuit was filed in Windham Superior Court, Civil Division by Tony and Shujen Politella of Brattleboro, the parents of the Academy School student, who are being represented by attorney Ron Ferrara of Fitts, Olson, Giddings & Ferrara in Brattleboro.
“The court found that federal law granted the district immunity based on the administration of the vaccine,” Pietro Lynn, attorney for the school district, said in an email response to the Reformer. “It is possible that other claims could be raised that fall outside the immunity grant, but those have not yet been raised.”
In a statement to the Reformer, the Vermont Attorney General’s Office said, “Under federal law, claims can only be brought based on the administration of a pandemic countermeasure if willful misconduct caused a death or serious physical injury, which did not happen here. The Court agreed with the State’s analysis of federal law and appropriately dismissed the case.”
Attorneys for both parties submitted filings based on their view of the federal Public Readiness and Emergency Preparedness (PREP) Act. In the pleadings, the state pointed to immunity provided through the law to encourage rapid and effective responses to public health emergencies by limiting the legal liability of those actors working to expeditiously respond to such crises.”
“Upon review of a number of state and federal court decisions which have examined the preemptive effect of the PREP Act upon state law claims such as the Plaintiffs’, this Court finds that the Plaintiffs’ Complaint must be dismissed for failure to state a viable claim for relief,” Kainen wrote. “The PREP Act provides one exception to immunity — when serious injury or death occurs through willful misconduct.”
Kainen called the plaintiffs’ allegations “salient and well pleaded” but noted their complaint contains no alleged willful misconduct by any of the defendants. The parties have 30 days to file amended motions.
The Reformer reached out to Ferrara on Wednesday. In an interview in September, he told the Reformer the child was not happy about the vaccination.
“He knew it wasn’t supposed to happen,” he said.
Ferrara described how the parents were not “anti-vaxxers” but the clinic was occurring during the first week shots were available for the child’s age group and they wanted to wait before deciding whether to inoculate him. They received apologies but no information on why the vaccination occurred, he said.
“My clients want an explanation,” Ferrara said, seeing it as a way to ensure a similar incident does not happen again.
Ferrara said the plaintiffs are now sending their children to private school because staff at Academy School “apparently did not know who their kid is.” A name tag had been mixed up, causing the mistake at the clinic, according to the complaint.
An effort to settle the case out of court fell apart, Ferrara said.
“I looked at the law,” he said of the PREP Act. “It’s a fairly robust federal statute but none of the claims we raised fall within the scope.”
Lynn previously told the Reformer that the school district “takes student safety very seriously.”
“It coordinated vaccinations with the state and is proud to have made the opportunity to mitigate the risk of infection available to students,” he said. “We are disappointed that the family involved here chose to file a lawsuit. The district never wants to be in litigation with families. However, we expect to prevail in the court action.”
According to the complaint, the incident occurred when Academy School hosted a vaccination clinic in partnership with the state in November 2021. School officials, the documents state, “received training from Vermont Department of Health, particularly with respect to ensuring and documenting that only children having valid ... parental consent and who were registered online were positively identified to be vaccinated at the school-based clinic.”
“The state had an obligation to WSESD, its employees, parents and students to direct its clinic’s activities, so as to avoid violating professional duties regarding medical care,” the complaint states.
The parents did not access the state’s web portal to register their child in the clinic nor provide consent to participate, according to the complaint. The father made a point of letting a school official know that he would not be signing his child up, because he had concerns and the child verbally protested before getting vaccinated, the complaint states.
“The Politellas live with fear regarding unknown long-term adverse health effects that [their child] — having been subjected to risks associated with an investigatory vaccine of unknown safety profile, not fully understood and yet unapproved for children — could suffer,” the complaint states. “The Politellas have been traumatized, suffering mental anguish and additional educational expense, with the potential for future medical expenses. Their basic liberty interest as family was vitiated by defendants’ breach of duty, which violated rights guaranteed by the Vermont Constitution, codified by statute, and long-recognized by the Vermont Supreme Court.”
The couple is suing for gross negligence, negligent undertaking, premises liability, battery of minor, consumer fraud, common law fraud, negligent infliction of emotional distress, and private right of action, which allows for the refusal of treatment. They are seeking damages and reimbursement for all costs related to the lawsuit.
Academy School Principal Kelly Dias told the Reformer in November, “Unfortunately, a mistake was made.” Increased screening measures will be in place at future clinics, Superintendent Mark Speno wrote in a letter to families at the time.
“We are deeply sorry that this mistake happened, and have worked internally to improve our screening procedures,” Speno wrote. “The Health Department has worked to evaluate its procedures to ensure that this does not happen again. Thankfully, we are not aware of any harm to the student because of this mistake. We take our responsibilities to students and families very seriously, and we respect parents’ rights to make health care decisions for their children.”
