The Public Readiness and Emergency Preparedness (PREP) Act authorizes the Secretary of Health and Human Services to issue declarations that confer broad immunity from tort liability on “covered persons” for claims of loss arising from the design, development, manufacture, distribution, administration, or use of designated medical countermeasures against infectious disease threats.
The protection provided by the PREP Act is deliberately broad to enable and encourage rapid response during public health emergencies. This sounds good in theory if the nation is up against an extremely virulent pathogen that poses a grave risk to the entire population.
However, in practice against SARS-CoV-2, the liability protection enabled massive fraud and abuse. The primary trouble with the PREP Act is that it does not require the Secretary of Health and Human services to provide an objective factual basis for declaring and maintaining a public health emergency. This defect was especially evident during the Monkeypox scare, when the entire “emergency” was a mere media assertion reminiscent of the 2010 Simpsons episode House Cat Flu.
The sole statutory exception to PREP Act immunity is willful misconduct that proximately causes death or serious physical injury.
Willful misconduct is narrowly defined: an act or omission taken intentionally to achieve a wrongful purpose, knowingly without legal or factual justification, and in disregard of a known or obvious risk so great that the harm is highly likely to outweigh any benefit.
Plaintiffs must prove all three elements by clear and convincing evidence, first exhaust the Countermeasures Injury Compensation Program, and litigate only in a three-judge panel of the U.S. District Court for the District of Columbia.
Fauci and Walensky’s attorneys will probably argue that they did not—in the spring of 2021—know that the risk of miscarriage outweighed the theoretical benefit of protecting the pregnant mother from COVID-19 illness.
In August 2021, Walensky publicly acknowledged that the COVID-19 vaccine does NOT prevent infection and transmission, which meant that any possible protection the vaccine conferred to pregnant mothers was entirely theoretical.
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