A crack appearing in the rampart protecting Covid vaccine manufacturers? See below:
I argued one of the biggest and most important cases in my career yesterday afternoon.
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Regular readers know that, late last year, my firm filed a lawsuit against the 2005 PREP Act, which is the federal law that immunizes from legal liability vaccine manufacturers (along with doctors, hospitals, and a vast army of other miscreants), for injuries caused by “safe and effective” (but also defective) vaccines and other pandemic treatments. The short statute replaces injured Americans’ common-law legal claims with a black box process called the Countermeasures Injury Compensation Program (CICP) that, in archaic legal terms, is called “a bad joke.”
Our lawsuit seeks to declare the PREP Act unconstitutional under six main theories.
Here’s what a litigator’s life is like. I spent the last five days straight preparing to argue against the federal government’s mega-motion to dismiss our lawsuit. Apart from church on Sunday, I worked right through the weekend. Just one case chart —a list of precedential cases cited in the briefs— included ninety-two separate decisions, constituting thousands of pages of dense case law. I did my best to read and familiarize myself with all of them. I probably wrote and re-wrote two dozen versions of my argument.
I never used any of it. Yesterday afternoon, as the hearing started, the judge offered each side 15 minutes of argument. That’s a warm-up.
But that wasn’t the only surprise. After calling our case fascinating, he broke protocol, saying he wanted to hear from our side first (usually the ‘moving side’ goes first, and here, the DOJ had moved to dismiss our lawsuit). So instead of responding to the government’s arguments, I had to quickly invent a whole new affirmative case. He told me to proceed with my argument.
I was halfway through my first amazing, legally triumphant opening sentence when the judge interrupted. He said, “let me ask you a couple quick questions first.”
In the litigation business, that is what we call a “hot bench.” It is similar in concept to a hot mess, but mostly just for the lawyers.
What followed was a respectful and smart but machine-gun-style series of questions aimed at every difficult issue in the case. I thought I handled the questions well, but things were going downhill. Judge Young (a Reagan appointee) said, with all due respect, it seemed to him that our case was a string of very good arguments in search of a legal claim. He wondered whether we should have just sued Pfizer in state court and tested our theories there. (I disagreed, of course.)
Imagine a professor who starts the lesson by picking you out of the class and firing off questions, staccato-style, interrupting and shifting to the next question as soon as he gets the idea of where your answer is headed. “I understand your argument, counsel. What about this?”
While my cerebral cortext continued playing verbal tennis, some other remote, disengaged part of my brain was already beginning to organize an appeal. But then a miracle appeared out of thin air. The rhetorical assault ended, and the judge shifted his attention to the government’s lawyer. He gave the government the same treatment, respectful but demanding, and just as dismissive of any reasoning he disagreed with.
Then came the hand grenade.
“Of all the plaintiffs’ counts, I think their substantive due process argument could survive,” the judge told the DOJ lawyer, as though it was a stray random thought. It changed everything.
🪖 “Substantive due process” (SDP) is an amorphous, jello-like, hard-to-pin-down concept that some rights are so fundamental —like the right to raise your children, make personal medical decisions, or marry the person you choose— that the government can’t take them away, even if it follows all the right procedures, and even if those rights aren’t expressly addressed in the Constitution.
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SDP is not just about how the government acts, but what it tries to do. If the law crosses a certain line —by being deeply unfair or violating a fundamental liberty— the Constitution says that’s not allowed, no matter how neatly the government checked the boxes.
SDP claims are among the hardest to win. Courts give the government wide latitude to regulate, especially in areas like public health, safety, and morals. To succeed, a claimant must prove that the government’s action is not just mistaken or harsh, but so extreme and so unjustified that it “shocks the conscience” —a legal standard so high it takes special NASA telescopes to find it on dark nights.
Unless a law unconstitutionally targets a fundamental right —and courts stingily recognize very few of them— judges will almost always defer to the government’s reasoning, so long as it clings to even a scrap of rationality, and even if it’s flimsy or paternalistic. But when the court allows a fundamental right is implicated, the government finds itself on brittle ice.
Well-known SDP cases include Roe v. Wade, Lawrence v. Texas (a 2003 decision that struck down the Lone Star State’s anti-sodomy laws), and Obergefell v. Hodges, which legalized same-sex marriage.
🪖 Judge Young pointed out to the government that we’d cited a couple of cases where the Supreme Court had mused that there might be an outer limit to the same thing the government did in the PREP Act. These musings mostly came from the Swine Flu cases — where in the 1980’s the government had also immunized pharma for shots during an ‘emergency.’ Back then, the government didn’t extinguish claims against jabmakers, like the PREP Act does, but that was beside the point.
One older Supreme Court case, in a concurrence, remarked offhand that it remains unsettled law whether the government can abolish common-law lawsuits without providing a meaningful alternative. Judge Young told the government’s lawyer that offhand comment seems to be a narrow crack that our substantive due process might, if proven, shine through.
It hit the courtroom like a sledgehammer. But the judge wasn’t finished. “I’m not saying this is true,” he explained, “but the plaintiffs have alleged that the PREP Act’s replacement process, the CICP is, well, absurd.” I think he might have even laughed aloud when he said absurd. He could have left it there. But then, as though driven by personal curiosity, he asked a biting follow-up question: “does the government think the CICP process is sufficient?”
The DOJ lawyer did his best to change the subject, trying to re-route the question back to safer ground about standing, the government’s cherished abolisher of claims. But the point held.
🪖 Not even thirty minutes into the hearing, Judge Young started wrapping it up, saying, well, “I think I have a duty, if I believe a cause of action has merit, to try the case.” Noting that it would take “some time” to write up his decision, whatever it ultimately was, the judge turned back to me.
In the closest thing to a judicial thunderclap, black-robed lightning cast down from Mount Olympus, he asked, “Well, Mr. Childers, if that is my decision, when would you like to go to trial?”
What followed was a verbal track and field event between me and the Department of Justice to win (or squash) this unexpected momentum. Finally, the judge was persuaded that the parties. before we could start discovery and so on, needed some direction over what his final decision would be. Judge Young admitted that he hadn’t completely decided yet, and “sometimes a decision just won’t write.”
He then suggested he might enter a short order sooner, with a longer memorandum explaining his reasoning to follow. If so, he would also issue deadlines for us to start working on trial preparation.
To date, no PREP Act challenge has ever survived dismissal. If it holds, ours would be the first. It is not exaggerating much to call it a miracle.
Thanks to everyone for all the prayers and support. We continue to soldier on.
https://www.coffeeandcovid.com/p/blind-justice-wednesday-may-21-2025
