FOIAengine Reveals Plaintiffs’ Lawyers, Anti-Vaxxers in the Hunt
When Pfizer and Moderna brought out their revolutionary mRNA vaccines to fight Covid-19 more than two years ago, they did so with strong legal protections guaranteed by the federal government. Their immunity from Covid vaccine injury lawsuits won’t last forever – it’s set to expire next year, on October 1, 2024.
Pfizer already is a sitting duck for all manner of other lawsuits, according to Docket Alarm analytics that show the company involved in an average of 88 new proceedings per day over the last three months. Notably, Pfizer and Moderna also are suing each other in Massachusetts state court over who has rights to the mRNA patents.
Who might be contemplating getting a jump on Covid litigation once the moratorium expires? This week, FOIAengine takes a look at some who are bombarding the Food and Drug Administration and other federal agencies with Freedom of Information Act document demands about Pfizer and Moderna. There are so many noteworthy FOIA demands that we’ll return to this again next week.
First, some history. Days after the onset of the pandemic in March 2020, the government invoked a 2005 law called the PREP Act – the acronym stands for Public Readiness and Emergency Preparedness – to prevent vaccine makers from being sued for making or distributing the coronavirus vaccines. The act provided a safe harbor from litigation to Pfizer and Moderna for their mRNA vaccines, as well as to Johnson & Johnson for its viral vector vaccine. The idea was to give the vaccine makers every incentive to move quickly to fight the deadly virus. And it worked. Vaccines came out in record time, hundreds of millions of Americans were protected, and the share prices of Pfizer and Moderna soared to all-time highs.
For Pfizer and Moderna, that success came with another kind of inoculation – from lawsuits. For at least the ensuing four years, Pfizer and Moderna couldn’t be sued over injuries related to the administration or use of their products to treat or protect against Covid. The only exception was willful misconduct. Shot recipients who had an adverse reaction couldn’t go to court, but instead were given the option of filing a claim with the federal Countermeasures Injury Compensation Program (CICP), the PREP Act’s litigation alternative for injuries experienced during public health emergencies.
But CICP claims almost never succeed. Once shunted into that program, a Covid claimant’s odds of victory are about 3 in 100; it’s the Bermuda Triangle of injury claims. The Health and Human Services office responsible for administering the program has 2,564 employees. As of March 1,2023, they’re reviewing 11,252 vaccine-reaction claims. So far, the office has processed 631 of those claims, denying all but 21. At least 10,600 Covid-vaccine claims are still pending.
The odds for Covid vaccine claimants might improve once the litigation moratorium ends. We dug into the FOIAengine database to see whether some of the 135 FOIA requests mentioning Pfizer or Moderna over the past 13 months were coming from law firms contemplating future improved Covid-vaccine odds in the courtroom. FOIA requests can be an important early warning of bad publicity or litigation to come. That is why PoliScio Analytics’ competitive-intelligence database FOIAengine tracks FOIA requests in as close to real-time as their availability allows. Of particular interest are requests that may significantly affect stocks and markets once the stories hit.
Among law firms making FOIA requests about Pfizer and Moderna, Siri & Glimstad has the lead. The firm, with offices in New York, Los Angeles, and seven other U.S. cities, specializes in vaccine litigation. It’s also a prolific FOIA requester, making hundreds of requests to the FDA and the National Institutes of Health since the pandemic began. One-tenth of all FOIA requests that specifically mentioned “Pfizer” or “Moderna” over the past 13 months came from Siri & Glimstad.
Right now, Siri & Glimstad says it isn’t taking CICP cases because of the low success rate. But the firm considers future Covid vaccine litigation to be “an unsettled issue.” Many of Siri & Glimstad’s FOIA requests to the FDA are sweeping in scope, consistent with a plaintiff’s law firm that’s vacuuming up documents in preparation for coming legal actions. For example, Siri & Glimstad asked the FDA for the lot numbers of every dose of Pfizer and Moderna Covid vaccine distributed in the U.S. or its territories, as well as copies of the Certificates of Analysis for each vaccine lot.
Aaron Siri, the law firm’s New York-based managing partner, said in response to questions that FOIA requests and litigation were “extremely useful” tools for his clients, which include the Informed Consent Action Network (ICAN) and Public Health and Medical Professionals for Transparency (PHMPT). Since the pandemic’s onset, ICAN has filed dozens of FOIA cases in various federal courts, and PHMPT has two FOIA cases against the FDA in federal court in Dallas. Both groups are seeking greater disclosure about what various agencies knew about Covid vaccine safety early on – “for purposes of transparency,” as Siri put it. He added that data already produced under FOIA showed “troubling numbers of people reporting that they had to seek medical care after their Covid-19 vaccine.”
Once the PREP safe harbor expires, Siri said, “it remains unclear how the government will handle what is likely an unprecedented amount of claims of vaccine injury in such a small time period. . . . There are very organized and cohesive groups of people who have been injured by these vaccines, and it appears that they will not stop until there is some form of adequate justice and compensation available to them.”
Meanwhile, news media requesters have also been very active. Almost one-fourth of all the FOIA requests mentioning Pfizer and Moderna came from the Epoch Times. The newspaper’s reporting has an anti-vaccine bias, and it has devoted considerable newsgathering resources to the supposed dangers of Covid vaccines – including the possibility that the virus originated in a Chinese lab.
That explains why the Epoch Times has dogged the FDA with requests about side effects of the Covid vaccine. A recent request, for example, sought “all emails, texts, and instant chat messages mentioning the following terms: . . . ischemic stroke, stroke, and Pfizer.”
Epoch Times is distributed in print weekdays in Washington and New York, and weekly elsewhere in the U.S. Its parent, Epoch Media, is affiliated with the Chinese spiritual movement Falun Gong and has an editorial policy that’s virulently anti-Chinese Communist Party. According to the New York Times, Epoch Media is also “a top purveyor of conspiracy theories and political misinformation.”
Epoch Media’s founder and CEO, John Tang, sends an email to new subscribers that begs to differ. He lays out the company’s slant and makes a different pitch: “[T]he more we are attacked for reporting truthfully, the stronger we become. The Epoch Times is a media on a journey to bring traditional journalism back to America, where it is sorely needed, and to a world that is desperate for truth.”
Coming next from FOIAengine: More questions about Pfizer and Moderna.
John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To review FOIA requests mentioned in this article, subscribe to FOIAengine.