Vaccine envy spurs lawsuits across the country
3/22/21 Jenna Greene's Legal Action 21:53:57
Copyright (c) 2021 Thomson Reuters
Jenna Greene
Jenna Greene's Legal Action
March 22, 2021
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(Reuters) - My Facebook feed these days is full of vaccine selfies – friends in states including North Carolina, Texas, Maryland and Illinois smiling broadly after receiving a jab to prevent COVID-19. Even my husband on Friday was able to get his first dose of the Moderna vaccine.
But when I check my eligibility, I still get this message from the state of California: "It will be your turn soon, but you are not eligible for the COVID-19 vaccine at this time."
I'm not going to lie: I have vaccine envy.
It's not just me. More than half a dozen lawsuits challenging vaccine allocation plans have popped up across the country. Some have already been successful, including a case in Oregon on behalf of prison inmates. Another liability landmine may be on the horizon, McGuireWoods partner Davis Walsh warns – suits on behalf of people who did not meet the initial criteria to get a vaccine and then died of the coronavirus.
The Centers for Disease Control and Prevention put out recommendations for who should get vaccinated first, but state and local officials have established their own priorities.
On one hand, we need to let public health officials do their jobs without courts constantly second-guessing their decisions. But vaccine allocation isn't just about science. It's also about value judgments and politics.
Should the elderly come before those with high-risk health conditions? Do prisoners belong near the front of the line along with other long-term care residents? Where do essential workers fit in? What about racial inequities in vaccine distribution?
While the vaccine supply remains limited, these are zero-sum questions. If you give to one worthy group, you take from another.
Given the stakes, it's not surprising that individuals, advocacy groups and class action lawyers are turning to the courts for relief.
Consider a suit filed March 17 in New York state court in Albany by the Legal Aid Society on behalf of three prisoners in the custody of the New York State Department of Corrections and Community Supervision.
The plaintiffs are seeking a court order that would make all incarcerated adults in New York immediately eligible for vaccinations, noting that residents of other group living facilities such as homeless shelters can already get the jab under Phase 1b of the state's prioritization plan.
"The decision to exclude incarcerated people as a category for prioritization stands in stark contradiction to the state's professed commitment to both public health principles and equitable access to the vaccine," Veronica Vela, supervising attorney with the Prisoners' Rights Project at The Legal Aid Society, said in an email.
A spokesman for the Department of Corrections and Community Supervision declined comment on the litigation but noted that the state began vaccinating incarcerated individuals 65 years and older on Feb. 5 and is now also offering vaccines to 3,575 inmates with comorbidities.
In February, the Oregon Justice Resource Center prevailed in similar litigation when a federal judge ordered the state to offer COVID-19 vaccinations to all unvaccinated inmates – an estimated 10,400 people.
"Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody," wrote U.S. Magistrate Judge Stacie Beckerman.
Key for Beckerman was that Oregon leaders greenlighted the vaccine for correctional staff, but not prisoners.
"Simply put, Defendants are well aware of the risks of serious harm to both correctional staff and (adults in custody) and have chosen to protect only the staff. This inaction indicates deliberate indifference to a substantial risk of serious harm," she wrote.
Another lawsuit seeking inmate vaccinations or release was filed by the ACLU on March 11 and is pending in San Diego County Superior Court.
Advocates for other vulnerable groups have turned to the courts for relief as well.
The Arc Maryland, a disability rights advocacy group, on March 9 sued five counties in the state and the city of Baltimore in federal court, alleging that the jurisdictions were discriminating against people with intellectual and developmental disabilities by denying them immediate opportunities to access COVID-19 vaccinations.
Baltimore city and Garrett County promptly changed their policies and were dropped from the suit, which remains pending in U.S. District Court for the District of Maryland against the other defendants.
Likewise, Disability Rights Connecticut filed a complaint with the U.S. Office for Civil Rights alleging that the state's policy of allocating vaccines based on age discriminates against people with disabilities who have underlying medical conditions.
In Nevada, the state was hit with a class action in January objecting to a policy that prioritized groups including inmates over senior citizens.
Nevada officials "created an arbitrary and capricious Tier system that discriminates against a vulnerable and protected class of citizens and precludes their access to life saving vaccinations," wrote Las Vegas attorney Sigal Chattah.
Two days before the preliminary injunction hearing, Chattah told me, the state made Nevadans age 65 and older eligible for the vaccine and began expediting the rollout.
With the requested relief obtained, she said, the case was dismissed in February.
Indeed, if President Joe Biden is correct that all states will have enough vaccines to cover every adult by mid-May, all these suits will likely be moot.
But Walsh of McGuireWoods warns that new grounds for litigation could arise. He and partner Samuel Tarry point to a 2014 case in New York state court, where the widow of a man who died of swine flu in 2009 sued his health care providers for failing to administer the H1N1 vaccine, which at the time was in short supply.
The man's doctors determined he did not meet the criteria in place at the time to get the vaccine.
Under the Public Readiness and Emergency Preparedness Act, individuals and organizations working to provide "countermeasures" against the coronavirus have broad liability protections, Walsh said.
But he wonders if that protection would apply if a plaintiff did not receive a vaccine, since that's not exactly a "countermeasure."
"There's a real possibility of litigation arising under similar facts as the case with the swine flu," he said.
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