Fifth Circuit might inject new life into Texas’ Covid-19 vaccine lawsuit

Texas Attorney General Ken Paxton is asking the Fifth Circuit to revive his Deceptive Trade Practices Act lawsuit accusing Pfizer of misleading the public about Covid-19 vaccine efficacy and suppressing critics, after a district judge dismissed it citing Pfizer's federal immunity. Multiple appellate judges signaled Tuesday the real problem may be that the case was improperly moved to federal court in the first place, which would mean the dismissing judge never had jurisdiction and the suit should return to state court.

Pfizer removed the case under federal officer removal, arguing its government vaccine contract ties its public statements to that federal work, leaning on a recent Supreme Court ruling involving Chevron. Texas countered that its suit seeks civil penalties, not compensation for loss, and therefore falls outside the federal PREP Act's immunity shield for Covid countermeasure makers.

Pfizer's attorney argued Texas's claims target statements tied directly to the FDA authorization needed to fulfill its federal contract, while Texas argued it's really about consumers denied accurate information for a health risk cost-benefit decision. The panel included judges appointed by Reagan, Bush, and Trump.

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