Who is responsible for deaths caused by COVID-19 vaccines? According to an unusual judicial panel, it’s not the federal agency largely responsible for the logistics of Operation Warp Speed, which rushed to develop novel mRNA products before the 2020 presidential election.Designated by the U.S. Court of Appeals for the D.C. Circuit, a “three-judge District Court” rubber-stamped a 2024 ruling by U.S. District Judge Carl Nichols that dismissed a lawsuit against then-Secretary of Defense Lloyd Austin by the estate of a college student who died from heart inflammation induced by a pre-licensed vaccine.
The family of the late George Watts Jr. alleged the Pentagon conducted a “bait and switch” by falsely advertising Pfizer’s emergency use authorization (EUA) vaccine, which Watts took to comply with his college mandate, as its fully licensed Comirnaty vaccine, a “deliberate and calculated mass-deception campaign” that amounts to “human experimentation without consent.”
That “willful misconduct” by Austin, since replaced as defendant by War Secretary Pete Hegseth, preempts the Pentagon’s legal shield under the Public Readiness and Emergency Preparedness Act, the estate’s lawsuit argued.
Composed of D.C. Circuit Judge Michelle Childs and U.S. District Judge Jia Cobb, both nominated by President Biden, in addition to President Trump-nominated Nichols, the panel rejected estate lawyer Ray Flores’s argument that the panel itself was improperly formed and claimed the Pentagon’s sovereign immunity didn’t depend on the PREP Act.
General Counsel Kim Mack Rosenberg, of Children’s Health Defense, which is funding the suit, told CHD’s in-house publication it was “disappointing that the three-judge panel went no further in analyzing complex issues such as waiver of sovereign immunity, due process and willful misconduct” after Nichols botched the law by unilaterally dismissing the case.
Nichols reversed himself in a sharply worded opinion last summer that blamed Flores for waiting until he dismissed the case to argue “for the first time” that Nichols didn’t have jurisdiction to dismiss the suit under the PREP Act. The judge apparently didn’t closely read the law, which explicitly assigns willful-misconduct claims “initially” to a three-judge panel.
