MIAMI (Legal Newsline) - A lawsuit blaming Walgreens for the death of a man following his COVID vaccination could be on the move.
On May 31, Miami federal magistrate judge Lauren Louis recommended the case brought by the Estate of Alfredo Barrera be sent back to state court. She says the federal law known as the PREP Act does not apply to the suit.
The PREP Act lets the secretary of Health & Human Services to declare a disease presents a public health emergency and provides protections from liability. At issue in the Barrera case is whether the injury arose from the "administration" of a countermeasure.
Walgreens argued the complaint invoked the PREP Act by alleging willful misconduct, an exception to immunity.
"However, Defendants' argument ignores that Plaintiff's complaint alleges the elements of negligence, which is plainly unavailable under the PREP Act," Louis wrote.
Barrera, according to the plaintiff's complaint, went to a Walgreens pharmacy in Florida City for his first Pfizer COVID-19 vaccine on July 27, 2021, and after administration, suffered cardiac arrest.
The plaintiff claims that Melinda Davis, the pharmacist who administered the vaccine, ignored protocol in reviewing Barrera's VAR Form and the question he answered "unknown" regarding health conditions such as heart disease.
The plaintiff alleges that if Davis had followed proper protocol before giving the vaccine to Barrera, she would have ensured that the vaccine was appropriate.
The plaintiff also alleges the defendants failed to warn Barrera, who was found to be hypertensive and had atherosclerotic cardiovascular disease, or advise him to seek medical clearance after answering "unknown."
"The Court is not convinced that the PREP Act can be summoned with the words 'willful misconduct,' especially in light of the heightened pleading standard that the PREP Act imposes," Louis wrote.
Ronald Strauss of Miami and Alba Varela of AV Professional Association in Coral Gables represent the plaintiff.