Health Law Daily Wrap Up, COVID-19—Cal. App.: No amendment for dismissed taxpayer lawsuit claiming COVID-19 mRNA vaccines ‘are not vaccines’, (May 20, 2024)

By Robert Margolis, J.D.

Taxpayer claimed vaccines are unlawfully “misbranded” and public officials using public funds to distribute them were wasting public funds.

A California Court of Appeals has affirmed a trial court’s denial of taxpayer James G. Barrett’s request for leave to file an amended complaint, finding both that he forfeited any arguments for leave to replead, and that even if not forfeited, his proposed amended complaint did not state viable claims against the State of California and several public officials based on allegations that the Pfizer and Moderna COVID-19 mRNA vaccines are “not vaccines” and their promotion and use in the state was a waste of public funds (Barrett v. State of California, et al., No. D081639 (Cal. App. May 16, 2024)).

Vaccines. In response to the outbreak of the COVID-19 pandemic, the U.S. Department of Health and Human Services declared circumstances to exist to justify authorization of emergency use of drugs and biologics, and later the Food and Drug Administration issued two emergency use authorizations for the Pfizer and Moderna COVID-19 mRNA vaccines. The authorizations for the vaccines included criteria and conditions for their manufacture, distribution, packaging, and labeling, which included identifying mRNA as an ingredient. The federal government purchased and distributed the vaccines, and also provided funding to state and local jurisdictions to support broad-based distribution and equitable access.

Meanwhile, in March 2020, California Governor Gavin Newsom declared a state of emergency. California later responded to the public health crisis by aggressively promoting and facilitating vaccination.

Taxpayer suit. Barrett, a California taxpayer, sued the State and several public officials, alleging (1) that the Pfizer and Moderna vaccines “are not vaccines”; (2) are “misbranded because their packaging and labeling includes the word “vaccine” and omit that they are “product[s] derived from mRNA technology” in violation of California’s Sherman Food, Drug, and Cosmetic Law (“Sherman Law”); and (3) the use of public funds to promote or distribute the vaccines constituted a government waste or failure to perform mandatory duties. He asserted two causes of action: (1) a taxpayer claim for waste of public funds used to promote and disseminate the vaccine; and (2) a writ of mandate against Governor Newsom and two state public health officials, who Barrett claims failed “to declare that no C[OVID]-19 emergency currently exists” in California, and did not rescind the Emergency Declaration. Barrett sought mandamus and injunctive relief against the continued use of public funds on the vaccination programs, that the Sherman law be enforced to correct the alleged misbranding, and that the Governor’s Emergency Declaration be rescinded. He also sought a declaration from the court that the mRNA vaccines are not vaccines under California law, are misbranded, their possession, sale, use, and transportation in California are unlawful, and that “Alex Jones was right” that the vaccines are not vaccines.

A trial court granted demurrers against the claims without leave to amend. Barrett had filed a proposed second amended complaint with his opposition to the demurrers, but the court denied his request for leave to amend. Barrett appealed.

Forfeit. On appeal, Barrett did not challenge the substantive trial court rulings sustaining the demurrers to his claims, and the appellate court deemed any such challenges forfeited. Barrett limited his challenge on appeal to the trial court’s order denying him leave to file a proposed second amended complaint, but the appellate court deemed that challenge forfeited as well. With the burden of showing how he can amend his complaint to change the legal effect of his pleading, Barrett failed to present any argument that his proposed amended complaint would correct the legal defects that led to the demurrers.

Barrett’s brief merely cited several paragraphs from the proposed amended pleading, with allegations such as: mRNA is a component of the vaccines; neither the labels or outer packaging of the vaccines state that mRNA is an ingredient; the vaccines contain no “biological material,” no “viral material,” no “toxins,” and no “antigens”; the packaging and labeling prominently display the word “vaccine”; prior to the pandemic, mRNA technology had never been used to inoculate humans or animals; and, therefore, the Pfizer and Moderna vaccines “are not vaccines.” Barrett did not explain how these allegations changed the legal effect of his pleading, so the appellate court held he forfeited his appellate challenge.

No abuse of discretion. Even if there was no forfeiture, the appellate court held that the trial court did not abuse its discretion in denying leave to amend, because the proposed second amended complaint states no viable claims. Under California Code Civ. Proc. § 526(a), a taxpayer may sue to enjoin “illegal, injurious, or wasteful” government action. Where the challenged conduct is legal, however, no claim will lie. The trial court granted the demurrer as to this claim because Barrett alleged no facts that the expenditure of public funds in connection with the vaccines was totally unnecessary, useless, provided no public benefit, or was illegal. In particular, he failed to identify any provision of the Sherman law that required disclosure of the technology by which the vaccines were derived. Moreover, the trial court found that Barrett’s claim stated merely a disagreement with how the state government chose to address a public health problem, and the court would not intervene in what was primarily a political dispute. The proposed amended complaint did not cure these failings, the appellate court held, but rather reinforced that the lawsuit was merely a disagreement as to public policy.

Similarly, the claim for writ of mandate failed because such a writ is unavailable to compel a state agency or officer to exercise discretion, but generally applies only to mere ministerial duties. The proposed second amended complaint did not cure this defect either, the appellate court held.

The case is No. D081639.

Judge: Do, T.

Attorneys: James G. Barrett, pro per. Darin L. Wessel, Office of the Attorney General, for State of California, Gavin Newsom, California Health and Human Services Agency, Mark Ghaly and California Department of Public Health.

Companies: State of California; California Health and Human Services Agency; California Department of Public Health

Cases: CaseDecisions Covid19 DrugBiologicNews GCNNews GeneralNews CaliforniaNews