Mother appeals case of teen’s forced COVID shot to state Supreme Court

A Guilford County mother hopes the state Supreme Court will take the case of her teenage son’s forced COVID vaccine shot. The mother and son sued the Guilford County school board and the Old North State Medical Society over the 2021 incident.

A unanimous state Court of Appeals panel ruled in March against mother Emily Happel and son Tanner Smith. Appellate judges agreed that the federal Public Readiness and Emergency Preparedness Act of 2005 protected the school board and medical society against legal action.

Happel and Smith filed a petition Friday asking the state’s highest court to reverse that ruling.

“The pandemic that occurred from 2020-2022 caused a seismic shift in the social, medical, political, and legal landscape of not only the State of North Carolina, not only the United States, but the world as a whole,” wrote lawyer David “Steven” Walker. “How the government chose to deal with the pandemic, especially concerning the administration of vaccines that had been granted emergency use authorizations, was and is a hotly contested issue, one that is certainly of significant public interest.”

“This public interest is even more significant when the issue revolves around the vaccination of a minor and the allegation that neither the minor nor the minor’s parent consented to the administration of the vaccine,” Walker added.

The case deals with “the interplay between duty of the courts of North Carolina to remedy constitutional and other legal violations and a federal law that defendants purport forecloses that opportunity,” Walker wrote.

“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,” according to the petition. “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. It is now a law of aspiration, with no consequence for its blatant violation.”

The quoted state law — NCGS § 90-21.5(a1) — says, “Notwithstanding any other provision of law to the contrary, 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.”

The Appeals Court issued a unanimous March 5 decision against the mother and son despite labeling the forced vaccination “egregious.”

“Plaintiffs argue the trial court erred in determining that the PREP Act … is applicable to this case and provides immunity to both Defendants,” Judge April Wood wrote. “Due to the sweeping breadth of the federal liability immunity provision in the PREP Act, we are constrained to disagree.”

“Bound by the broad scope of immunity provided by the PREP Act, we are constrained to hold it shields Defendants, under the facts of this case, from Plaintiffs’ claims relating to the administration of the COVID-19 vaccine,” Wood added.

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. “The letter indicated ONS Medical Society would conduct the testing and ‘consent for testing is required,’” Wood wrote.

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 the clinic also provided COVID-19 vaccine shots.

 “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,” Wood wrote.

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 federal 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.

“[W]e hold ONS Medical Society is a covered person as a program planner that administered a vaccine clinic, and individually administered vaccines to individuals. … The declaration clearly provides that a program planner may be a private sector employer or community group when it carries out the ‘described activities’ including administration of a covered countermeasure,” Wood wrote.

The same law also applied to the Guilford school board. “We are convinced by the Secretary’s interpretation in the declaration that a covered person under the PREP Act includes a ‘state or local government . . . [that] provides a facility to administer or use a Covered Countermeasure.’ We hold this language includes the Board, which provided a facility — Northwest Guilford High School — for the administration of the COVID-19 vaccines,” Wood wrote.

“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 added.

The Appeals Court noted that North Carolina’s General Assembly amended state law in 2021 to require “parental consent before a vaccine granted emergency use authorization may be administered to a minor.”

“Its intent is to prevent the egregious conduct alleged in the case before us, and to safeguard the constitutional rights at issue — Emily’s parental right to the care and control of her child, and Tanner’s right to individual liberty,” Wood wrote. “Notwithstanding, the statute remains explicitly subject to ‘any other provision of law to the contrary’ under the broad provision preempting state law in the PREP Act.”

“The PREP Act provides only one exception for a ‘Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.’ Because Plaintiffs have not made any such allegations in their complaint, we are constrained to conclude the PREP Act preempts the protections provided” by state law, Wood wrote.

Judges Allegra Collins and Jeff Carpenter joined Wood’s decision.

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