The Vermont Supreme Court recently affirmed a lower court decision that the state and the Windham Southeast Supervisory Union were immune from legal challenges brought by the parents of a student who received a COVID-19 vaccine against their wishes.

The litigation, brought against the state and the school district two years ago by Dario and Shujen Politella, claimed the defendants were not immune from legal challenges. Workers at a vaccination clinic held at the Academy School in Brattleboro, Vt., in November 2021, the Politellas’ suit argued, were negligent when they mixed up name tags and mistakenly administered a COVID-19 shot to their child, who was 6 years old at the time.

Mark Speno, the Windham Southeast superintendent, later wrote to the parents that school officials were “deeply sorry that this mistake happened, and have worked internally to improve our screening procedures.”

The Politellas sued in Windham Superior Court, but Judge Michael Kainen dismissed the case in January 2023. They then appealed to the Supreme Court, where a hearing was held on May 28 of this year.

The litigation centers around the federal PREP Act, a 2005 law that provides immunity from liability to government officials administering “countermeasures” in response to a public health emergency — in this case, a vaccine against the COVID-19 virus that had caused a global pandemic starting in early 2020.

The Politellas and their attorney, Ronald Ferrara, argued that the PREP Act did not provide blanket immunity in this case, and said that the alleged negligence of the school district and the state’s clinic workers was subject to damages.

The lawsuit did not challenge the administration of the vaccine itself, but instead challenged the defendants’ failing to adhere to the parent’s wishes. The conduct of staff prior to the administration of the vaccine, Ferrara said during the May Supreme Court hearing, was “really the cause of harm in this case.”

“It shouldn’t disallow it just because the PREP Act seems to be such a sweeping immunity statute,” he said at the time. “If you do that you create some bad public policy because this kind of mistake can be repeated without ever having any judicial review. You can have this kind of stuff going on all over the place.”

But the Supreme Court disagreed with that argument, affirming the lower court case’s ruling.

Justice Karen Carroll wrote in the decision that the federal PREP Act bars all claims based on state law against defendants and that the plaintiffs had failed to state a claim upon which relief could be granted.