By JOHN LEAKE
The Public Readiness and Emergency Preparedness Act (PREP Act) was enacted on December 30, 2005, as Public Law 109-148, Division C, Section 2. The Act authorizes the Secretary of Health and Human Services (the Secretary) to issue a Declaration to provide liability immunity to certain individuals and entities (Covered Persons) against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures (Covered Countermeasures), except for claims involving “willful misconduct” as defined in the PREP Act.
In addition to the COVID-19 PREP Act declaration that is currently in effect, nine other disease categories and even certain nerve agents and insecticides are the subject of current PREP Act declarations.
This means that if you are a Covered Person engaged in the business of countermeasures, you are protected from legal liability if your product or service injures someone. Additionally, because a PREP Act declaration is made in response to a public health emergency, a Covered Person is, by the same circumstances and logic, also in a position to receive massive government funding from other federal agencies such as the NIH, BARDA, and DARPA.
In other words, any Public Health Emergency is, as a result of this legislative framework, certain to be a liability-free bonanza for anyone engaged in the business of medical countermeasures.
To anyone who has ever been in the business of making and selling ordinary products that bear product liability, it is apparent that an extraordinary privilege has been conferred on people in the countermeasures business. As a good ole boy I knew in the Texas real estate industry would say, “The countermeasure bidness been DAMN good to those guys.”
The trouble with this arrangement is that it generates a massive perverse incentive to declare a public health emergency even when there is none, as we saw last summer with the PREP Act declaration for Monkeypox. Still worse is the terrible temptation to CREATE a public health emergency.
A comical depiction of product liability was in the 1979 film, The Jerk, about a moron named Navin Johnson who invents an eyeglasses frame enhancement called the Opti-Grab. Soon after becoming filthy rich from his invention, he is ruined because the Opti-Grab makes its users cross eyed.
CLICK on the image below to see the scene in which film director Carl Reiner leads an irate group of citizens in a class-action lawsuit against Navin.
In their poor and hasty conception, the COVID-19 mRNA vaccines will ultimately go down in history as the “Opti-Grab” of immunological products. To be sure, the damages they inflict are infinitely worse, and the creators of these so-called “countermeasures” bear no liability.
