KANSAS V. PFIZER
Pfizer has a slim chance of winning this Covid-19 vaccine case
Two states, Texas and Kansas, brought suits against Pfizer for violations of their states’ consumer protection statutes
Texas is appealing the 12/30/2024 dismissal which held:
“the Court finds that as a matter of law under the circumstances of this case, the Defendant is entitled to immunity under the Public Readiness and Emergency Act ("PREP Act).'
Texas’ brief is due April 16, 2025.
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Kansas has the stronger case. Here’s why:
Pfizer entered into three consent judgments with the State of Kansas to resolve consumer protection claims.
In 2008, Pfizer paid $60 million to resolve claims by a group of states, including Kansas, relating to Pfizer’s promotional and marketing practices regarding the prescription drugs Celebrex® and Bextra®.
In addition to the amount paid, the company agreed, “Pfizer shall not make any written or oral claim that is false, misleading or deceptive regarding any FDA-approved Pfizer Product.”
In 2012, Pfizer paid $42.9 million to resolve claims by a group of states, including Kansas, relating to Pfizer’s promotional and marketing practices regarding the prescription drugs Zyvox® and Lyrica®.
In addition to the amount paid, the company agreed, “Pfizer shall not make, or cause to be made, any written or oral claim that is false, misleading, or deceptive regarding any FDA-approved Pfizer Product, . . .”
In 2014, Pfizer paid $35 million to resolve claims by a group of states, including Kansas, relating to Wyeth Pharmaceuticals Inc.’s (“Wyeth”) promotional and marketing practices regarding the prescription drug Rapamune®. Pfizer acquired Wyeth five years before the Consent Judgment.
In addition to the amount paid, the company agreed, “Pfizer shall not make, or cause to be made, any written or oral claim that is false, misleading, or deceptive regarding any Pfizer Product.”
Pfizer claims these ‘assurances’ are protected by the PREP Act:
The claims raised in the Complaint fall within the PREP Act’s protections for the manufacturers of COVID-19 vaccines and other countermeasures, and OAG’s claims could only have been brought, if at all, pursuant to the “exclusive Federal cause of action” established in 42 U.S.C. § 247d-6d(d)(1) [willful misconduct]. Accordingly, Plaintiff’s claims are completely preempted and removable to federal court.
Kansas alleges Pfizer deceived the public in violation of the Consent Judgments.
In an open letter to the public, Pfizer Chairman and CEO Dr. Bourla dedicated his company to producing a safe vaccine: “The second requirement is to prove that the vaccine is safe. Our internal standards for vaccine safety and those required by regulators are set high. . . . Safety is, and will remain, our number one priority, and we will continue monitoring and reporting safety data for all trial participants for two years.”
After committing to Kansans that safety was Pfizer’s number one priority with its COVID-19 vaccine, Pfizer and its employees, directors, and agents repeatedly misrepresented to Kansans that Pfizer’s COVID-19 vaccine was safe.
On November 9, 2020, Pfizer Chairman and CEO Dr. Bourla said, “We feel very good about the safety” of Pfizer’s COVID-19 vaccine and that there were “no safety concerns” reported to Pfizer by a review committee.
On April 1, 2021, Pfizer issued a press release confirming “no serious safety concerns through up to six months following second dose”
On August 23, 2021, Pfizer Chairman and CEO Dr. Bourla said that the Pfizer vaccine “is effective and safe.”
On September 16, 2021, Pfizer Chairman and CEO Dr. Bourla said, “We have been very successful in developing an effective and safe vaccine.”
On September 20, 2021, Pfizer announced in a press release that “[i]n participants 5 to 11 years of age, the vaccine was safe, well tolerated and showed robust neutralizing antibody responses.”
On November 22, 2021, Pfizer announced that its COVID-19 vaccine “demonstrated 100% efficacy against COVID-19 in longer-term analysis, with no serious safety concerns identified” in children 12 through 15 years of age.
Pfizer removed the case from Thomas County District Court to U.S. District Court (to affirm PREP preclusion and then dismissal). Kansas is moving for remand back to state court.
Especially in light of the North Carolina decision that the PREP Act protects against torts and not state constitutional claims (yes, I let their attorneys know), I predict that the Kansas case will prevail.
Pfizer has a slim chance of prevailing. I suggest they settle.
Satan usually wins on this plane and he is a bloodthirsty master.