Kheler v. Hood, 2012 WL 1945952 (E.D. Mo. May 30, 2012)

Plaintiff’s attorney filed medical malpractice action against physician and clinic in state court.  The plaintiff’s injury occurred after the physician administered H1N1 flu vaccine—he had suffered a severe neurological reaction to seasonal flu vaccine shortly before the defendant recommended the H1N1 vaccination, and suffered a worse reaction to the second vaccine.  The defendants filed a third-party claim seeking indemnification from the vaccine manufacturer.  The vaccine manufacturer removed the case to federal court pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute, and sought dismissal based on the immunity granted vaccine manufacturers by the Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d.  The original defendants filed a piggyback motion to dismiss in the federal court, also on the basis of PREP Act immunity.  Michael Gross was engaged to seek remand of the plaintiff’s original action.  After briefing, the District Court dismissed the defendants’ third-party claim against the vaccine manufacturer and remanded the case to state court.  The original defendants subsequently sought dismissal of the plaintiff’s claims in the state trial court.  The basis of that motion again was PREP Act immunity.  When that motion was denied the defendants sought a writ of prohibition from the Missouri Court of Appeals, State ex rel. Hood v. Prebil, No. ED 99461 (Mo. Ct. App. Jan. 24, 2013)  (unreported), and from the Missouri Supreme Court, State ex rel. Hood v. Prebil, No. SC 93169 (Mo. Mar. 19, 2013) (unreported).   Each of the appellate courts denied the defendants’ writ application.  Michael Gross did all briefing in the state trial and appellate courts.

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