The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
REBECCA COWEN, )
)
Plaintiff, )
)
v. ) Case No. 22-CV-157-TCK-JFJ
)
WALGREEN CO., an Illinois corporation, )
d/b/a WALGREENS DRUGSTORE NO. 15751, )
)
Defendant. )
OPINION and ORDER
Before the Court is the Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure
12(b)(6) by the defendant, Walgreen Co., an Illinois corporation, d/b/a Walgreens Drugstore No.
15751 (“Walgreens”) (Doc. 14). Plaintiff Rebecca Cowen (“Plaintiff”) filed a Response (Doc. 16),
and Walgreens filed a Reply. (Doc. 17).
I. MOTION TO DISMISS STANDARD
A Complaint must contain “a short and plain statement of the claim, showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A Complaint must contain enough “factual
matters, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citations omitted). The trial court must insist the plaintiff put
forward specific, non-conclusory factual allegations, to assist the court in determining whether the
complaint is plausible. Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). The mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court reason to believe [the] plaintiff has a
reasonable likelihood of mustering factual support for [the] claims.” Id. at 1247.
“The nature and specificity of the allegations required to state a plausible claim will vary
based on the context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.
2011). A plaintiff is not entitled to file a bare bones complaint and fill in the necessary facts after
discovery is complete. London v. Beaty, 612 Fed. Appx. 910, 916 (10th Cir. 2015). The trial court
must insist that the plaintiff put forward specific, non-conclusory factual allegations, to assist the
court in determining whether the complaint is plausible. Robbins, 519 F.3d at 1249.
In ruling on a motion to dismiss, the court must always accept the plaintiff’s well-pleaded
facts as true and construe them in the light most favorable to the plaintiff. Archuleta v. Wagner,
523 F.3d 1278, 1283 (10th Cir. 2008); Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014).
Under this standard, a complaint may not be dismissed on the grounds that the court thinks it
unlikely that the allegations can be proven. Twombly, 127 S.Ct. at 1974; Spradlin v. City of
Owasso, 2014 WL 1664974 *2 (N.D.Okla.) (holding that “a well-pleaded complaint may proceed
even if actual proof of those facts seems improbable, and that a recovery is very remote and
unlikely”). Indeed, “it is well established that a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of the claim which would entitle plaintiff to relief.” Issa v. Comp USA, 354 F.3d 1174, 1177-78
(10th Cir. 2003); citing Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
II. BACKGROUND
Plaintiff alleges that on September 20, 2021, she sought a flu vaccination from a Walgreens
store in Bartlesville, Oklahoma. However, instead of receiving a flu vaccination, a Walgreens
employee administered a Moderna COVID-19 vaccination to Plaintiff without her knowledge or
2
consent. Plaintiff’s Petition asserts state law claims for negligence and vicarious liability against
Walgreens. Plaintiff seeks actual damages exceeding $75,000, along with punitive damages.
Walgreens contends Plaintiff’s claims are barred as a matter of law by the immunity
provided under the Public Readiness and Emergency Preparedness Act (“PREP Act”). The PREP
Act immunizes entities providing countermeasures to the COVID-19 pandemic. The distribution
and administration of the Moderna COVID-19 vaccine is defined as a protected countermeasure.
The PREP Act preempts all state law causes of action against covered entities, with the sole
exception to immunity being a federal cause of action for death or serious physical injury
proximately caused by willful misconduct of the defendant. Plaintiff alleges neither death, serious
physical injury, nor willful misconduct by Walgreens. Therefore, Walgreens claims it is entitled
to dismissal of Plaintiff’s claims due to preemption.
III. ANALYSIS
The PREP Act provides liability protections for persons who administer pandemic
countermeasures. See 42 U.S.C. § 247 d-6d. The Act’s immunity provision states:
[A] covered person shall be immune from suit and liability
under Federal and State law with respect to all claims for loss
caused by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered
countermeasure if a declaration [of a public health
emergency] has been issued [by the Secretary] with respect
to such countermeasure.
§§ 247d-6d(a)(1), 247d-6d(b).
The scope of this immunity “applies to any claim for loss that has a causal relationship
with the administration to or use by an individual of a covered countermeasure, including a causal
3
relationship with the ... distribution, ... dispensing, ... administration, ... or use of such
countermeasure.” § 247d-6d(a)(2)(B) (emphasis added).1
Defendant argues that it is immune from suit under the PREP Act because Plaintiff’s claims
relate directly to Defendant’s use and administration of a covered countermeasure—the COVID-
19 vaccine Plaintiff received. Plaintiff contends, however, that her claims should be construed
more broadly because her injury could have happened whether she received a COVID-19 vaccine
or any other vaccine. After reviewing the relevant law, the Court is compelled to agree with
Defendant. As explained in the statute and below, Plaintiff’s remedy for her alleged injuries
following her COVID-19 vaccination is through the Countermeasures Injury Compensation
Program (“CICP”).2
A court analyzing the meaning of a statute or regulation should first look at its “plain and
unambiguous meaning,” and if the language is clear, the analysis ends. Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997). “The plainness or ambiguity of statutory language is determined by
1 The PREP Act provides an exception to immunity for “willful misconduct.” See §§ 247-d-
6d(d0(1); 247d-6d(c)(1)(A). Here, Plaintiff has not pleaded facts to support allegations of willful
misconduct; thus, the exception has no relevance to the Court’s analysis. See § 247d-6d(c)(1).
Moreover, if she had pleaded willful misconduct, such a claim must be brought in the U.S. District
Court for the District of Columbia, and exhaustion under the procedures applicable to the Covered
Countermeasure Process Fund is a prerequisite. See §§ 247d-6d(e )(1), 247-6e(d)(1).
2 The PREP Act also created a “Covered Countermeasure Process Fund,” “for purposes of
providing timely, uniform, and adequate compensation to eligible individuals for covered injuries
directly caused by the administration or use of a covered countermeasure pursuant to such
declaration.” § 247d-6e(a). The Health Resources and Services Administration (“HRSA”)
administers the program. See Countermeasures Injury Compensation Program (CICP) (Nov.
2020), https://www.hrsa.gov/cicp. There is no judicial review of the agency’s actions; the process
is purely administrative. § 247d-6e(b)(5)(C).
4
reference to the language itself, the specific context in which that language is used, and the broader
context of the statute as a whole.” Id. at 341.
In the PREP Act, Congress plainly provided immunity under both federal and state law
with respect “to all claims for loss caused by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered countermeasure if the HHS Secretary
issues a declaration.” See 42 U.S.C. § 247d-6d(a)(1). In March 2020, the Secretary issued a
declaration regarding the COVID-19 pandemic under the PREP Act. See, Declaration Under the
Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against
COVID-19, 85 Fed. Reg. 15198-01 (March 10, 2020) (‘the Declaration”).3 Further, COVID-
19 vaccinations are covered countermeasures.
Plaintiff’s Complaint alleges that she went to Walgreens for a flu vaccination, and instead
received a COVID-19 vaccination. This chain of events cannot be separated from the
administration of a covered countermeasure—the COVID-19 vaccine she received. Plaintiff
argues that because her injuries could have resulted from any vaccination or other medical
procedure at Walgreens, the Court should find the PREP Act not applicable. While it is true that
3 The Declaration itself explains:
[T]he Act precludes a liability claim relating to the management and operation of a countermeasure
distribution program or site, such as a slip-and-fall injury or vehicle collision by a recipient
receiving a countermeasure at a retail store serving as an administration or dispensing location that
alleges, for example, lax security or chaotic crowd control. However, a liability claim alleging an
injury occurring at the site that was not directly related to the countermeasure activities is not
covered, such as a slip and fall with no direct connection to the countermeasure’s administration
or use. In each case, whether immunity is applicable will depend on the particular facts and
circumstances.
5
other vaccinations or procedures might have also been administered, this does not change the fact
that Plaintiffs injuries actually resulted from administration of the COVID-19 vaccine. The PREP
Act therefore applies. See § 247d-6d(a)(1) (“[A] covered person shall be immune from suit and
liability under Federal and State law with respect to all claims for loss caused by, arising out of,
relating to, or resulting from the administration to or the use by an individual of a covered
countermeasure.”) (emphasis added). Plaintiff provided no caselaw to support the it-could-have-
been-a-different-vaccine argument, or to show that the PREP Act did not apply in a factually
similar case. In its own research, the Court found none. Because Plaintiffs claims flow directly
from the administration of a qualified countermeasure, there is no plausible way that amendment
would alter the outcome.
Accordingly, Defendant’s Motion to Dismiss (Doc. 14) is granted.
IT ISSO ORDERED this 13th day of December, 2022.
— >
TERENCE C, KERN
United States District Judge