Judge William A. Crowfoot, Case Number: 23AHCV02118, Date: 2024-05-08 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV02118, Date: 2024-05-08 Tentative Ruling

On September 13, 2023, plaintiffs Raffi Pililian (“Raffi”), Laura Pililian (“Laura”), and Leia Pililian (“Leia”, collectively, with Raffi and Laura, “Plaintiffs”) filed this action against Garfield Beach CVS, L.L.C. (“Defendant”). The action arises from personal injuries sustained by Raffi in the presence of his wife, Laura, and his minor daughter, Leia, on September 15, 2021. Plaintiffs allege they were on Defendant’s premises when Raffi received a COVID-19 vaccine booster injection. (Compl., ¶ 19.) After the injection, Raffi was instructed to sit in a designated area for 10 to 15 minutes, which was designated for patrons receiving any type of injections, including COVID-19 vaccine booster shots, before leaving the premises. (Ibid.) Raffi became dizzy and attempted to stand but fainted within this area and fell face first onto the protruding arms of the merchandise stand, which was made of metal. Plaintiffs assert claims for negligence and premises liability based on the negligent placement of the chocolate merchandise stand next to the seats in the area. Laura and Leila assert a cause of action for negligent infliction of emotional distress (“NIED”) and allege that they suffered emotional distress; in addition, Laura suffered pregnancy complications due to stress caused by Raffi’s injuries. (Compl., ¶¶ 19-20.) Laura also asserts a claim for loss of consortium. (Comp. ¶¶ 42-44.)

On March 25, 2024, Defendant filed this demurrer to each cause of action within the Complaint. Plaintiffs filed their opposition brief on April 25, 2024. Defendant filed its reply brief on May 1, 2024.

Defendant requests the Court take judicial notice of the declaration of the United States Health and Human Services Secretary Alex Azar invoking the PREP Act for the COVID-19 pandemic (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 FR 15198-01) and subsequent amendments to the declaration. Defendant also requests judicial notice of an advisory opinion issued by the Office of the General Counsel on the application of the PREP Act. The request is GRANTED.

Plaintiffs request the Court take judicial notice of court records in this proceeding and those from the United States District Court Central District of California under case number 2:23-cv-09923-CBM-JC after Defendant removed this suit to federal court. The request is GRANTED.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

Defendant argues that the Complaint must be dismissed because the injuries arise from the administration of a COVID-19 vaccine, which is preempted by the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e (the “PREP Act”). Defendant argues that the PREP Act only allows Plaintiffs to litigate claims for willful misconduct in the United States District Court for the District of Columbia, therefore this action should be dismissed.

The PREP Act states, in relevant part: “[A] covered person shall be immune from suit and liability under Federal and State law with respect to 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 if a declaration under subsection (b) has been issued with respect to such countermeasure.” (42 U.S.C. § 247d-6d(a)(1).) “The immunity under paragraph (1) applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.” (42 U.S.C.A. §247d-6d(a)(2)(B).) In the March 10 Declaration, the Secretary of the Department of Health and Human Services defined “Administration of a Covered Countermeasure” as the “physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution, and dispensing of the countermeasures to recipients; management and operation of countermeasure programs; or management and operation of locations for purpose of distributing and dispensing countermeasures.” (Def.’s RJN, Ex. 1, section IX.) Thus, the “administration” of a countermeasure included vaccinations and to activities related to the management and operation of programs and locations for providing those vaccinations, such as “decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities.” (Ibid.) The Secretary clarified that the PREP Act “precludes a liability claim relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury or vehicle collision by a recipient receiving a countermeasure at a retail store or dispensing location that alleges, for example, lax security or chaotic crowd control. However, a liability claim alleging an injury occurring at the site that was not directly related to the countermeasure activities is not covered, such as a slip and fall with no direct connection to the countermeasure’s administration or use. In each case, whether immunity is applicable will depend on the particular facts and circumstances.” (Ibid.)

Defendant relies on Storment v. Walgreen, Co. (D.N.M., July 27, 2022, No. 1:21-CV-00898 MIS/CG) 2022 WL 2966607, in which the plaintiff suffered similar injuries after she fell in a parking lot after receiving the COVID-19 vaccine. The store did not have any chairs so the plaintiff was advised to walk around the store or go sit in her car for 15 minutes to make sure she felt all right after the shot. (2022 WL 2966607 at *1.) The plaintiff felt a little dizzy and decided to look around the store for somewhere to sit. (Ibid.) She could not find a place and went to her car. (Ibid.) However, when she arrived at her car, she became so dizzy that she fell before she could get seated. (Ibid.) She fell on her elbow, which was fractured in multiple locations, and required surgery. (Ibid.) The district court dismissed the suit and rejected the plaintiff’s argument that the PREP Act should not apply because her injury could have happened regardless of whether she received a COVID-19 vaccine. The court stated that the chain of events leading to the plaintiff’s elbow fracture was “unfortunate and certainly deserving of a remedy, but it cannot be divorced from the administration of a covered countermeasure – the COVID-19 vaccine she received.” (Id. at * 3.) Even if any other vaccination or medical procedure might leave customers dizzy, the district court emphasized that in this case, the plaintiff’s injuries “actually resulted from administration of the COVID-19 vaccine.”

Plaintiffs argue that the PREP Act does not apply because their claims are based on a theory of premises liability and arise from a dangerous condition on Defendant’s premises, not the administration of the COVID-19 vaccine. It is true that Plaintiffs allege, in part, that Raffi fainted in a waiting area and was injured by a dangerous condition. (Compl., ¶ 21.) Plaintiffs also claim that Raffi fainted due to vasovagal syncope caused by the stress of the “needle injection.” However, the “needle injection” Raffi received was the COVID-19 vaccine booster and Plaintiffs allege that this injection was the precipitating event to Raffi’s vasovagal syncope. Therefore, a causal relationship exists between the provision of the countermeasure and the alleged injuries and, like in Storment, Plaintiffs’ injuries cannot be “divorced” from the administration of the COVID-19 booster shot. Accordingly, the PREP Act applies and Defendant is immune from liability in state court.

Plaintiffs also argue that Defendant is barred from arguing that the PREP Act applies because the issue was already ruled on by the district court when it issued its order remanding the case to state court. But as stated in the order attached as Exhibit 6 to Plaintiffs’ Request for Judicial Notice, the district court did not rule on the applicability of the PREP Act, but rather whether it was a complete preemption statute and thus provided a basis for federal subject matter jurisdiction over Plaintiffs’ state law claims. (Ex. 6, p. 3.) The federal district court held that Defendant’s potential immunity defense under the PREP Act “is not a substantial federal issue necessarily raised by Plaintiffs’ state law claimed” and that removal to federal court was improper. (Ibid.)

Plaintiffs additionally argue that even if the PREP Act were applicable, the Department of Health and Human Services has published opinions that vasovagal syncope is not a symptom “associated with” vaccines. (Opp., p. 8.) Plaintiffs cite to the Department’s declaration which discussed changes to the Vaccine Injury Compensation Program (“VICP”) and concluded that vasovagal claims are not associated with vaccines or their components. The citation to a different statutory scheme is not persuasive because vasovagal syncope is explicitly included as a “covered injury” for the “Countermeasures Injury Compensation Program” (“CICP”) which is set up as part of the PREP Act. The CICP includes a table which lists and explains injuries that are presumed to be caused by a covered countermeasure, and the time periods in which the onset of these injuries must occur after administration or use of the covered countermeasure. If an injury occurred within the listed time periods, and the level of severity required, there is a rebuttable presumption that the covered countermeasure was the cause of the injury.

Because Plaintiffs’ claims all arise from Raffi’s injuries which were caused by the COVID-19 vaccine shot, they are all barred by the PREP Act.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.