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Kroger claims immunity in COVID-19 vaccine suit

PARKERSBURG — The Kroger company asked a federal judge to dismiss a lawsuit filed by parents who say their teenage child received an undiluted COVID-19 vaccine dose at a Parkersburg store, saying federal and state laws make it immune from liability.

Court documents also revealed the plaintiffs sought a $150,000 settlement before filing the suit.

Attorneys for the grocery chain filed a motion Aug. 11 in U.S. District Court for the Southern District of West Virginia to dismiss the case. They cite the federal Public Readiness and Emergency Preparation Act, which “provides broad immunity for manufacturers, distributors and health care providers in lawsuits involving pandemic countermeasures after a declaration of a public health emergency.”

The suit was filed June 24 in Wood County Circuit Court, but Kroger attorneys had it moved to federal court, in part because the company is based in Ohio while the plaintiffs are West Virginia residents.

According to the complaint, the child of John and Maria Louden of Davisville received the second dose of the Pfizer COVID vaccine in June 2021. Later that day, Maria Louden was contacted by a pharmacist who said the student-employee who administered the vaccine had done so without diluting it. The result was a dosage more than five times the recommended amount, the complaint says.

Over the next two days, the teen suffered from high fever, severe nausea, headaches, body aches and dizziness, the complaint says, and has continued to experience fatigue, frequent headaches and difficulty focusing on tasks.

A memorandum of law in support of the motion to dismiss, filed by Huntington attorneys Alexis B. Mattingly and Brittany Given Simmons, says the 2005 P.R.E.P. Act renders entities such as retail pharmacies “immune from suit and liability under federal and state law with respect to all 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.”

It also cites West Virginia’s COVID-19 Jobs Protection Act, which was enacted on March 29, 2021, and prohibits lawsuits against “any person, business, entity, health care facility or provider, first responder or volunteer for loss, damage, physical injury or death arising from COVID-19, COVID-19 health care or impacted health care.”

In addition, the memo claims the plaintiffs did not provide proper notice under the state’s Medical Professional Liability Act.

Brian Headley, an attorney representing the Loudens, declined to comment on the filing Monday, but said a response would be filed soon in court.

Documents submitted to the court include correspondence discussing a potential settlement of the dispute before the suit was filed. In one letter, Headley notes a doctor recommended continuing to monitor the teen’s condition and estimates the cost for such monitoring would approach $50,000, at $700 a year for 70 years. After receiving a denial of liability letter from company representatives, the plaintiff’s attorney requested a settlement of $89,000 to avoid further litigation.

Evan Bevins can be reached at ebevins@newsandsentinel.com.

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