Presiding Justice Karen Peters
St. Lawrence Public Health Dept. appealed from an order denying its motion to dismiss a complaint against it. In response to an outbreak of the H1N1 influenza virus, the Secretary of Health and Human Services concluded a public health emergency existed and issued declarations recommending administration of the Peramivir vaccination. Defendant held a vaccination clinic at Lisbon Central School and inoculated students, including plaintiff Parker’s kindergarten-aged daughter, without her consent. Parker sued arguing the inoculation constituted negligence and resulted in a battery. Defendant moved for dismissal arguing lack of subject matter jurisdiction based on federal preemption. The Supreme Court found the protections of the Public Readiness and Emergency Preparedness (PREP) Act did not extend to situations where a governmental entity administered a drug without consent, denying the motion. This court disagreed finding PREP preempted Parker’s state law claims for negligence and battery as the exclusive remedy was a claim in federal court. It noted the statute broadly defined loss and provided its immunity provision applied to “any claim” for loss absent death or serious physical injury proximately caused by willful misconduct, reversing the order.
