Bird v. State

• Docket Number: S-23-0011
• Decision Date: 26 October 2023
• Citation: 2023 WY 102
• Parties: CHESTER L. BIRD; RYAN A. BROWN and RICHARD B. DAGUE, Appellants (Plaintiffs), v. THE STATE OF WYOMING, Appellee (Defendant).
• Court: Wyoming Supreme Court

1

2023 WY 102

CHESTER L. BIRD; RYAN A. BROWN and RICHARD B. DAGUE, Appellants (Plaintiffs),
v.
THE STATE OF WYOMING, Appellee (Defendant).

No. S-23-0011

Supreme Court of Wyoming

October 26, 2023

Appeal from the District Court of Goshen County The Honorable Edward A. Buchanan, Judge

Representing Appellants: Chester L. Bird, Ryan A. Brown, Richard B. Dague, pro se.

Representing Appellee: Scott E. Ortiz and Erica R. Day of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.

2

FENN, Justice.

[¶1] Appellants Chester L. Bird, Ryan A. Brown, and Richard B. Dague filed suit against the State of Wyoming claiming a contract health care provider for the State of Wyoming at the Wyoming Medium Correctional Institution acted negligently when she injected Appellants with the Janssen COVID-19 vaccine because the consent forms Appellants signed only mentioned the Moderna and Pfizer COVID-19 vaccines. Despite Appellants' pending request to pursue limited discovery, the district court granted summary judgment in favor of the State finding the State had immunity. We find the federal Public Readiness and Emergency Preparedness Act shields the State from suit and liability and affirm the district court's decision.

ISSUE

[¶2] The dispositive issue is:^[1]

I. Did the district court err when it declined to allow Appellants additional time for limited discovery and entered summary judgment finding the State was immune from suit

FACTS

[¶3] Chester L. Bird, Ryan A. Brown, and Richard B. Dague (Appellants) were inmates at the Wyoming Medium Correctional Institution (prison) in Goshen County, Wyoming, in 2021. While Appellants were housed at the prison, the United States of America and the State of Wyoming declared a public health emergency over a novel coronavirus known as a severe acute respiratory syndrome coronavirus 2 (COVID-19) that was spreading globally. Following the declaration of the public health emergency, the Wyoming Department of Corrections "began taking action to protect the prisoners, including [Appellants], and staff at the [prison] from the COVID-19 virus." Those actions included vaccinating staff and prisoners with authorized COVID-19 vaccines.

[¶4] On January 13, 2021, Appellant Bird submitted a health service request asking for information about COVID-19 vaccines. The contract health care providers at the prison responded:

We are currently working with [c]ounty health departments to receive vaccines. These are being released as they work down

3

the priority lists. Once vaccines have been received and we know which one will be available we will provide the information sheets.

Following this response, information sheets for the Pfizer/BioNTech two-dose mRNA vaccine (Pfizer) and for the Moderna two-dose mRNA vaccine (Moderna) were posted in the prisoner housing units at the prison. The United States Food and Drug Administration (FDA) granted emergency use for the Pfizer and Moderna COVID-19 vaccinations in December 2020. Legaretta v. Macias, 603 F.Supp.3d 1050, 1055 (D.N.M. 2022) (citing FDA news release). Two months later, in February of 2021, the FDA issued an emergency use authorization for a third COVID-19 vaccine, the Janssen COVID-19 vaccine (Janssen). Id.

[¶5] Prison staff generated and posted written memorandums and other printed documents in the prisoner housing units regarding the COVID-19 virus and the available vaccines. Additionally, prison staff published critical information about the COVID-19 virus and available vaccines on the prisoner computer network and facility inmate television channel. The prison began vaccinating its staff and "high-risk" prisoners with the Moderna vaccine in early February 2021. Sometime in early March 2021, the warden became aware the prison was going to be provided with a shipment containing a COVID-19 vaccine for staff and the general inmate population. The warden did not know which vaccine was going to be provided.

[¶6] On March 10, 2021, before the prison received the vaccine, Appellants signed a form entitled "COVID-19 Vaccine 2020-2021 Patient Consent or Declination." Appellants' signatures on these consent forms were witnessed. The consent form specified Appellants were "being offered the COVID-19 Vaccine that has been granted Emergency Use Authorization by the Food and Drug Administration, which may prevent Coronavirus Disease 2019 (COVID-19)." The consent form did not specify which vaccine was being offered. It did, however, reference the Pfizer and Moderna vaccines in a statement located in the middle of the form. The statement related to the Pfizer and Moderna vaccines appeared with two other statements:

• The above history is true and complete to the best of my knowledge.

• I have received the COVID-19 Vaccine Patient Information Fact Sheet and have been given the opportunity to ask questions.

• I understand that this vaccine is given [in] 2 doses, 21 days apart for Pfizer or 28 days apart for Moderna.

4

Appellants initialed all three statements.

[¶7] The day before Appellants received their COVID-19 vaccination, prison staff published a notice on the inmate television channel specifying which COVID-19 vaccine was being offered to the inmate population. Appellants did not see the notice. Appellants stated they "do not pay any attention to the facility television channel because it is routinely off the air, the material is outdated, and/or the material is illegible due to poor formatting or other issues."

[¶8] On March 19, 2021, a contract health care provider injected Appellants with the Janssen vaccine. Appellants presumed they were injected with "either the Pfizer or Moderna vaccine" "[b]ecause they were the only two COVID-19 vaccines specifically identified on the [p]atient [c]onsent [f]orm" they signed, and because they had not been otherwise advised. Appellants did not realize they received the Janssen vaccine until three days after the vaccine was given. Appellants contend they never consented in writing, or otherwise, to being injected with the Janssen vaccine. Appellants allege the prison directly violated prison policy because Appellants were "[n]ever informed of the purpose, methods, procedures, benefits, and risks associated with the Janssen [v]accine, or [of] the material facts about the nature, consequences, and risks of being vaccinated with the Janssen [v]accine[,] the alternatives to it[,] and the prognosis if the vaccination was not undertaken" prior to being injected with the Janssen vaccine.

[¶9] Appellants filed a complaint in the United States District Court for the District of Wyoming (U.S. District Court) against the contract health services administrator for the Wyoming Department of Corrections and the prison warden. Appellants' claims stemmed from being injected with the Janssen vaccine without their...