On Failure to Warn, reasonable suspicion to investigate for the state-level crime of reckless endangerment, and exclusion of federal employees and officials from PREP Act immunity

On May 21, 2025, the U. S. Senate Permanent Subcommittee on Investigations Majority Staff Interim Report titled Failure to Warn: How Federal Health Agencies Downplayed the Risk of Myocarditis and Other Adverse Events Following COVID-19 Vaccination[1] (Failure to Warn) was released. So were 2,473 pages of supporting documents.[2] (Supporting Docs).

That newly available content makes the timing right for state attorneys general to consider investigating federal government employees or officials (GEOF) for committing state-level crimes during the COVID-19 response and after it. More so when combined with the content from two Freedom of Information Act (FOIA) document productions chronologized in FOIA’d CDC Emails Reveal Disturbing Myocarditis Timeline Warranting Investigation: Different Messaging Internally vs. Publicly About COVID-19 Vaccines and Myocarditis[3] (Disturbing Timeline) and discussed in On the Prospects for County- and State Level Investigation and Prosecution of CDC Personnel and Others for Wrongdoing in the COVID-19 Vaccination Era[4] (Prospects).

Seventeen state attorneys general have expressed their willingness to consider “state-level investigations or legal proceedings”[5] to “address violations of state law or breaches of public trust”[6] during the COVID-19 response.

The PREP Act, meaning the Public Readiness and Emergency Preparedness Act[7] (PREPA), has been thought a possible obstacle to any such eventual prosecution. PREPA is a federal law. “Under the [U. S. Constitution’s] Supremacy Clause, from which [the] pre-emption doctrine is derived, any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield." Gade v. Nat’l. Solid Wastes Mgmt. Ass’n. 505 U.S. 88, 108 (1992) (brackets in original omitted); see also, Zyla Sciences, L.L.C. v. Well Pharma of Houston, L.L.C., No. 23-20533 (5^th Cir. April 10, 2025) (“Under the Supremacy Clause, any state law that contradicts federal law is preempted.”).

As I understand it, the PREPA-as-possible-obstacle-to-state-level-criminal-prosecution thinking has gone something like this: if a COVID-19-era wrongdoer were prosecuted for committing a state-level crime, that prosecution—as a “suit” or “cause of action” if you will—would be precluded by PREPA’s immunity and preemption provisions.

Hopefully, On whether the PREP Act confers immunity on government officials and others from state-level criminal prosecution for COVID-19-era wrongdoing or preempts such prosecutions – Part One,[8] (PREPA Part One) which concluded PREPA doesn’t confer immunity on government officials and others from criminal prosecution, shifted some of that thinking.

PREPA Part One left open whether PREPA preempts such prosecutions, meaning whether PREPA preempts any criminal prosecution of anybody whatsoever, to which my research supports the answer is no, an assertion I’ll support in a later post.

Failure to Warn and Supporting Docs brought up a narrower question, given the GEOFs’ names and actions and omissions in those documents. That narrower question is whether GEOFs are included in PREPA’s definition of “covered person.”[9] For the reasons below, the answer is no, GEOFs are not “covered persons,” so PREPA doesn’t confer them immunity, because it doesn’t “cover” them, under its own definitions. It’s worth getting this definitional exclusion analysis posted, discussed, and criticized if warranted—may as dismantle PREPA’s supposed criminal immunity by its own definitions, before even getting to preemption of criminal prosecution.

Below, I discuss the state-level crime of reckless endangerment in light of Failure to Warn’s findings, including beginning a discussion on how those findings may bear on whether there is reasonable suspicion for state attorneys general or county attorneys to investigate GEOFs for the state-level crime of reckless endangerment, after which I show why GEOFs are not included in PREPA’s “covered person” definition.

Two asides.

First, separate from Supporting Docs’ newly available content, the manner of response to Sen. Johnson’s (R-WI) January 28, 2025, subpoena may assist any later investigators regarding state of mind of involved actors. For example, the possible use of an anomalous white redaction among dark redactions in the recipient line of the same email, see Supporting Docs, Part 03, p. 49 (cited that way because those pages aren’t stamped with the “PSICOVID” Bates-style stamp used elsewhere in Supporting Docs), considered in the context of both the content of that email and the content in the emails at pp. 45-48 that temporally follow it. White redactions are sometimes used to obscure that a redaction was made.

Second, my first review of Supporting Docs makes me wonder about the accuracy of at least some of the myocarditis information that was being presented in Centers for Disease Control and Prevention (CDC) COVID-19 Vaccine Safety Technical Work Group (VaST) meetings. I say that because at least some of that information appears inconsistent with the myocarditis safety signal identified by the scientists whose work product was relied upon in both Disturbing Timeline and Prospects.[10] For example, a slide for the May 17, 2021, VaST meeting indicates no safety signal for myocarditis, Supporting Docs, PSICOVID_00009340, a date after the scientists identified one. They both can’t be correct. Maybe it’s the other way around, though I doubt that.

Failure to Warn and the state-level crime of reckless endangerment

“An actor commits reckless endangerment if, under circumstances not amounting to a felony offense, the actor recklessly engages in conduct that creates a substantial risk of death or serious bodily injury to another individual.”[11]

“Conduct means an act or omission” to act.[12]

Those definitions from Utah’s criminal code are the same as or similar to their analogs in some other states.

The question is whether there is enough evidence in Supporting Docs—including as discussed in Failure to Warn, and in the FOIA documents chronologized in Disturbing Timeline, including as discussed in Prospects—that provides a state attorney general or county attorney with reasonable suspicion to investigate any GEOFs for the state-level crime of reckless endangerment.

That is:

Did the GEOFs’ conduct of omitting to warn for myocarditis create a substantial risk of death from myocarditis or serious bodily injury from myocarditis, or did one or more of their relied upon affirmative acts—as in recommending known unsafe COVID-19 vaccines—create a substantial risk of death from myocarditis or serious bodily injury from myocarditis? Is there reasonable suspicion to investigate for that? Reasonable suspicion is a low legal standard, discussed in Prospects. In a separate post, I’ll discuss for whom I think there’s reasonable suspicion to investigate, to dispel or confirm suspicion.

In Utah “serious bodily injury means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.”[13] I assert myocarditis, which impairs or can impair the function of the heart organ or creates a substantial risk of death (both really), meets the “serious bodily injury” definition.

And for those working on data about “protracted loss or impairment of the [reproductive] function of any bodily member or organ” following COVID-19 vaccination, what about omission to warn or the affirmative act of recommending an mRNA injection known to impair the reproductive function of any bodily member or organ? Those are valid questions for at least the 17 state attorneys general referred to above. (I realize myocarditis and loss or impairment of reproductive function aren’t the only subjects to look at in this context.)

Consider the crime of reckless endangerment in terms of Failure to Warn’s highlights:

1. U.S. health officials knew about the risks of myocarditis;

2. Those officials downplayed the health concern; and

3. U.S. health agencies delayed informing the public about the risk of the adverse event.

Failure to Warn, p. 3 (Those numbered highlights are the writer’s or writers’ work product. I don’t take credit for the way that was done. Same goes for the bullet points immediately below. I’m eschewing quotation marks because they would distract here. In the bullet points below, the citations in the original are omitted.)

Failure to Warn supports its highlights by discussing records showing, in part:

• The Israeli Ministry of Health notifying officials at the CDC in late February 2021 of “[a] large [number of] reports of myocarditis, particularly in young people, following the administration of the Pfizer vaccine.”

• “A Department of Defense (“DoD”), Defense Health Agency (“DHA”) consultant’s presentation and other discussions by CDC officials about the limitations of vaccine safety surveillance systems to detect reports of myocarditis and cardiac-related adverse events.

• CDC officials discussing safety signals for “myocarditis with mRNA vaccines” in mid[-]April 2021 based on DoD and Israeli data, but still not taking immediate steps to warn the public.

  • [I think there’s more, see Disturbing Timeline, showing what CDC internally discussed about myocarditis versus what it was willing to release to the public. April 28: “Notes from DoD discussion (not for public release, but for your awareness)” (emphasis added); May 21: “had a good call with Celine [Grounder] and updated [] her on what can be shared publicly” (emphasis added); May 23: “Will follow up but believe aim [for issuing HAN] was for early this week. Just targeting Emergency departments rather than broad advisory.” (emphasis added)]

• Discussions among CDC officials in May 2021 on whether to issue a HAN[[14]] on myocarditis, noting that health care professionals across the nation may not be aware of the risk because “providers aren’t reporting these cases to VAERS [Vaccine Adverse Event Reporting System].”

• A CDC official providing up-to-date information on the status of the HAN to Pfizer Inc. (“Pfizer”) and Moderna, Inc. (“Moderna”) representatives, indicating CDC’s preference to keep the vaccine companies more informed about vaccine adverse events, rather than the American people.

• Draft meeting notes from late May 2021 exchanged between U.S. public health officials which included the question: “Is VAERS signaling for myopericarditis now?”; and the answer: “For the age groups 16-17 years and 18-24 years, yes.”

• Then-Acting FDA Commissioner Janet Woodcock emailing then-CDC Director Rochelle Walensky in late May 2021 noting that the “FDA does not concur with the issuance of the myocarditis HAN as written[.]”

• CDC officials editing the drafts of the HAN and, subsequently, a less formal website statement discussing the need to “walk back” a sentence advising doctors to “consider restricting patients with myocarditis from rigorous activity like competitive sports for at least 3 months until cleared by a healthcare professional.” This critical piece of information, which was still included, in part, in a May 26, 2021 draft of the HAN, was ultimately omitted from the May 28, 2021 “clinical considerations” posted on CDC’s website.

• The [] White House distributing talking points to top U.S. health officials, including then-National Institute of Allergy and Infectious Diseases (“NIAID”) Director Anthony Fauci, downplaying the risk of myocarditis.

Failure to Warn, pp. 3-5.

As stated with support in Disturbing Timeline, Americans were lining up to get vaccinated at a rate of over 1.1 million per day, every day, from late February through late May 2021, exposing themselves to a myocarditis risk they might not have taken, had they been warned. Also, CDC recommendations for COVID-19 vaccines have been unrelenting, even after May 2021.

It’s my legal opinion that neither death nor serious bodily injury need to occur to meet reckless endangerment. Instead, all that is necessary is that the defendant’s act or omission created a substantial risk thereof. Even if I’m wrong about that, victims wouldn’t be hard to find through entities like React19[15] and others.

Prospects discussed three things that might come to mind at this point:

First, how an offense committed outside one’s home state that has an effect inside one’s home state can give one’s home state jurisdiction to prosecute. For example, if an omission or act—as in an omission or failure to warn, or an affirmative recommendation for a known unsafe COVID-19 vaccine—happened in, say, Atlanta, Georgia, where CDC is headquartered, and that omission or act had an effect on a person in one’s home state.

Second, “small potatoes” concerns, given reckless endangerment in Utah is a class A misdemeanor, an offense lower than a felony. Relatedly, before Failure to Warn was released, Florida-based attorney Mimi Miller prepared a 50-state Summary of State Criminal Laws for COVID Crime Responsibility & Accountability Projects Re: Hospital Homicides.[16]

Third, statute of limitations.

I don’t re-discuss those things here.

Some perspective

As I said in Prospects, I’m not rushing to judgment, maybe every GEOF whose name appears in Failure to Warn, Supporting Docs, Disturbing Timeline, and Prospects whose conduct raises questions has a valid explanation. Not every GEOF whose name appears in those documents engaged in questionable conduct. One CDC employee seems to have been wondering what was going on inside CDC about how the myocarditis issue was being handled. See Supporting Docs, PSICOVID_00004769 (“The whole thing has been a bit odd[.]”). Well before charges were filed, an investigation would need to happen first, including giving any investigated GEOF a Mirandized opportunity to provide an explanation for the omission or act for which they were being investigated. And I’d advocate defending their constitutional rights against the slightest hint of unfairness in any forthcoming criminal proceedings. Ms. Miller agrees with the due process/fairness sentiments in this paragraph.

And I reiterate my thoughts expressed in Prospects about the relevance of South Africa’s Truth and Reconciliation Commission as we consider how to go forward.

GEOFs are not “covered persons” under PREPA

PREPA only provides “immun[ity] from suit and liability”[17] to a “covered person[,]”[18] as follows: “Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss[.][19] If a GEOF is not a “covered person” PREPA does not confer them immunity. (Prospects addressed putative sovereign immunity protection.)

Here’s how PREPA defines “covered person”—

(2) Covered person

The term “covered person” when used with respect to the administration or use of a covered countermeasure, means—

(A) the United States; or

(B) a person or entity that is—

(i) a manufacturer of such countermeasure;

(ii) a distributor of such countermeasure;

(iii) a program planner of such countermeasure;

(iv) a qualified person who prescribed, administered, or dispensed such countermeasure;

(v) an official, agent, or employee of a person described in clause (i), (ii), (iii), or (iv).[20]

I’ll leave out for a moment whether GEOFs meet the definition of “program planner of such countermeasure” under subsection (iii) above.

It’s easy to exclude GEOFs from the other five definitions of “covered person” above, because there’s no evidence supporting they are a COVID-19 vaccine manufacturer;[21] COVID-19 vaccine distributor;[22] qualified person who engaged in prescribing, administering, or dispensing COVID-19 vaccines;[23] or an official, agent, or employee of a person described in clause (i), (ii), or (iv).[24] Nor are they the United States, as in when it or its agencies or departments gets sued.

That leaves “program planner of such countermeasure”[25] under subsection (iii) above, as the only conceivable definition under which a GEOF’s lawyer could try claiming PREPA confers immunity on their client.

Here’s how PREPA defines “program planner,” in bullet point form first:

• a State or local government, including an Indian tribe, a person employed by the State or local government, or other person

• who supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product [a COVID-19 vaccine is included in this definition[[26]]

• including a person who has established requirements

• provided policy guidance, or

• supplied technical or scientific advice or assistance or

• provides a facility to administer or use a covered countermeasure in accordance with a declaration under subsection (b).[[27]]

And here’s how that appears in the statute:

(6) Program planner

The term “program planner” means a State or local government, including an Indian tribe, a person employed by the State or local government, or other person who supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product, including a person who has established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provides a facility to administer or use a covered countermeasure in accordance with a declaration under subsection (b).[[28]]

Hereafter, to avoid reader distraction, I use brackets and citations less for previously cited terms.

GEOFs are excluded from PREPA’s “program planner” definition

First, GEOFs—as federal employees or officials—are excluded from the “program planner” definition by negative implication, which instructs that the expression of one thing implies the exclusion of others. If Congress had intended to include the federal government or person employed by the federal government—employed at CDC or elsewhere—in the definition of “program planner,” Congress would have said so, something like this: “The term “program planner” means a Federal, State or local government, including an Indian tribe, a person employed by the Federal, State or local government, or other person,” but Congress didn’t. One can determine a statute’s intent by what’s included in it, and by what’s not included in it. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 57 (2012) (“[T]he limitations of a text—what a text chooses not to do—are as much a part of its “purpose” as its affirmative dispositions.”) (emphasis and quotation marks in original); cf., State ex rel. D.A.C., 933 P.2d 993, 1001 (Utah Ct. App. 1997) (“[U]nder basic rules of statutory construction, express exceptions exclude all other exceptions.").

Also, if “other person” was interpreted to mean a person employed by the federal government, the phrase “employed by the State or local government” in “person employed by the State or local government” would be surplusage. Courts “presume the [l]egislature[s] do[] not insert surplusage into [their] enactments[,]” and “will not construe a statute in a way that renders parts [of statutes] to be duplicative and surplusage.” Nielson v. AT&T Corp., 597 N.W.2d 434, 439 (S.D. 1999) (citations omitted).

Before discussing whether a GEOF somehow otherwise fits the definition of “other person,” I’ll situate where I am in this part of my analysis:

For a GEOF to have immunity under PREPA, they’d need to be a “covered person.” To be “covered person,” they’d need to be a “program planner.” To be a “program planner,” they’d need to be an “other person” as that term is used in PREPA’s definition of “program planner.” (The reason a GEOF would need to be an “other person” is because a GEOF is not “a person employed by the State or local government.”)

Nielson and Scalia & Garner instruct that GEOFs do not meet the definition of “other person.” In Nielson, after “a controlled gallop[ing]” “horse tripped because it stepped into a cable trench dug by AT&T[,]” the horse “somersaulted landing on” its rider, after which she soon died. Nielson, id. at 436-37. When her parents sued, AT&T claimed liability immunity, arguing the company met the definition of “or any other person” in this immunity clause:

“No equine activity sponsor, equine professional, doctor of veterinary medicine, or any other person, is liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.”

Id. at 438.

Employing “the canon of statutory construction known as ejusdem generis[,]” id. at 439, meaning “where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated[,] id., the Supreme Court of South Dakota held “AT&T [was] not entitled to immunity as “any other person[,]”” id. at 440, reasoning:

“Applying the principle of ejusdem generis, “any other person” is limited to other people involved in equine activities and does not extend blanket immunity. If the legislature intended to provide immunity to all people, it would not have specifically list[ed] those entitled to immunity. We presume the [l]egislature does not insert surplusage into its enactments. Also, this court will not construe a statute in a way that renders parts to be duplicative and surplusage.”

Id. at 440 (cleaned up).

For reference below, Scalia & Garner describe the ejusdem generis canon this way: “Where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.” Scalia & Garner, 199.

Applying Nielson’s reasoning here, in the context of this hypothetical criminal case, “other person” in PREPA’s “program planner” definition is most reasonably read to mean a person who was involved in activities that “supervised or administered a program” (oversaw a program or helped carry out a program) where COVID-19 vaccines were “administrat[ed] [injected], dispens[ed], distribut[ed], provi[ded], or used” and did so in the same or similar way to how “a person employed by the State or local government” did that, specifically regarding point of delivery of COVID-19 vaccine programs, that is, where “administration” of them happened, “dispensing” of them happened, “distribution” of them happened, “provision” of them happened, or “use” of them happened, which puts those “other persons” in the “same general kind or class [or category] [as the State local government employees] specifically mentioned.” Scalia & Garner, id.

Parsing PREPA’s section defining “program planner” supports this conclusion:

“The term “program planner” means…a person employed by the State government…who supervised or administered a program[.]”

“The term “program planner” means…a person employed by…local government…who supervised or administered a program[.]”

“The term “program planner” means a[n]…other person who supervised or administered a program[.]”

Reiteratively, in the context of this hypothetical criminal case, all three persons—person employed by the State government, person employed by a local government, and other person—are in the “same general kind or class [or category] [as the State and local government employees] specifically mentioned[,]” Scalia & Garner, id., and that category is: persons who supervised or administered a program for point of delivery of COVID-19 vaccines.

Right or wrong, it’s that category of persons PREPA defines as “program planners” who are thus “covered persons” who are thus protected by PREPA’s immunity provisions. To read “other person” to apply to a federal CDC employee or official or other GEOF whose role was so far removed and distinct from on the ground point of delivery of COVID-19 vaccine activities, or to apply to every GEOF identified in Failure to Warn, Supporting Docs, Disturbing Timeline, and Prospects, would be a reading so strained as to render the statute’s language meaningless.

Also, Nielson added:

“Construing the Equine Activities Act as a whole, it is clear that the legislature intended to encourage equine activities by providing to those involved immunity from liability for injuries arising out of the unavoidable risks of equine activities. That purpose is not advanced by allowing AT&T to take refuge under the statutes when they are not involved in equine activities.”

Id. at 439-40 (citations omitted, emphasis added, internal quotation marks omitted).

Similarly here, right or wrong, PREPA’s “program planner” definitions, in the context of this hypothetical criminal case, do show PREPA’s “evident purpose is to embolden caregivers [who are on the ground at point of delivery of services], permitting them to administer certain encouraged forms of care (listed COVID “countermeasures”) with the assurance that they will not face liability for having done so.” Estate of Maglioli v. Andover Subacute Rehabilitation Center, 478 F.Supp.3d. 518, 529 (2020) (parentheses and content therein in original). “That purpose is not advanced by allowing” GEOFs “to take refuge under [PREPA] when they are not [and were not] involved in” supervising or administering point of delivery of COVID-19 vaccine programs. Nielson, id.

And not just assurance for caregivers, but also “persons who supervised or administered programs” where caregivers carried out countermeasures, as well as those who “established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provide[d] a facility to administer or use [] covered countermeasure[s].”

Second, regarding “established requirements” in PREPA’s “program planner” definition, “the Supreme Court of the United States has recognized[] the federal legislature resorts to the term “requirement” to describe “a rule of law that must be obeyed,”” Happel v. Guilford Cnty. Bd. of Educ., No. 86PA24 (N.C. March 25, 2005) (Riggs, J., dissenting), citing Bates v. Dow Argosciences LLC, 544 U.S. 431, 445 (2005). GEOFs in Failure to Warn, Supporting Docs, Disturbing Timeline, and Prospects are not members of the federal legislature who vote to establish laws.

Third, I have not seen evidence GEOFs “provided policy guidance, or supplied technical or scientific advice or assistance” to point of delivery of COVID-19-vaccine programs or “provide[d] [] facilit[ies] to administer or use [] covered countermeasure[s.]”

Conclusion

For the reasons above, GEOFs in Failure to Warn, Supporting Docs, Disturbing Timeline, and Prospects are not “program planners.” Nor are they manufacturers or distributors of COVID-19 vaccines, or qualified persons who prescribed, administered, or dispensed COVID-19 vaccines. Nor are they officials, agents, or employees of any of those. Nor are they the United States, as in when it or its agencies or departments gets sued. Thus, GEOFs don’t fall within PREPA’s definition of “covered person.” Therefore, GEOFs cannot successfully claim immunity from state-level criminal prosecution under PREPA.

Even if GEOFs somehow were construed to be “covered persons,” they still would not have immunity from state-level criminal prosecution, because PREPA does not confer criminal immunity, as opposed to its broad civil immunity reach, as PREPA Part One argued. Nor do I think PREPA preempts such prosecutions, but I haven’t posted about that yet.

A final note. This foregoing goes toward accountability and principles, not personalities, parties, or tribes. If current GEOFs are engaging in actions or omissions providing reasonable suspicion to investigate for reckless endangerment or any other state-level crime, the foregoing applies to them too.

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[1] Senate PSI Majority Staff Interim Report - May 21, 2025 - (FINAL VERSION).pdf - Google Drive

[2] Accessible at the bottom left of this webpage: PSI Chairman Johnson Releases Report; Will Hold Hearing on Federal Health Agenci...

[3] FOIA'd CDC Emails Reveal Disturbing Myocarditis Timeline Warranting Investigation: Different Messaging Internally Vs. Publicly About COVID-19 Vaccines and Myocarditis. - DailyClout

[4] Accessible here: On the Prospects for County- and State-Level Investigation and Prosecution of CDC Personnel and Others for Wrongdoing in the COVID-19 Vaccination Era - DailyClout.

And here: https://open.substack.com/pub/edberkovich/p/on-the-prospects-for-county-and-state-576?r=cld73&utm_campaign=post&utm_medium=web

[5] state AG's letter-to-congress-covid-19-response-feb-5-2025 (2).pdf - Google Drive

[6] Id.

[7] 42 U.S.C. § 247d-6d.

[8] https://edberkovich.substack.com/p/on-whether-the-prep-act-confers-immunity?r=cld73.

[9] 42 U.S.C. § 247d-6d(i)(2).

[10] Jablonowski KD, Hooker B, Delayed Vigilance: A Comment on Myocarditis in Association with the COVID-19 Injections. International Journal of Vaccine Theory, Practice, and Research, 2(2), 651.1–651.4, View of Delayed Vigilance (Delayed Vigilance) and Jablonowski KD, Hooker B, et al., Lock the Doors: The Myocarditis Disaster and a call for the broad examination of the CDC and FDA | Medical Research Archives.

[11] Utah Code Section 76-5-112.

And for the “recklessly” state of mind, see Utah Code § 76-2-103(3):

“A person engages in conduct” “[r]ecklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Id.

[12] Utah Code Section 76-1-101.5.

[13] Id.

[14] Health Alert Network (HAN) | HAN | CDC

[15] Home - React19

[16] https://drive.google.com/file/d/1qCzhe_7uj8zRRBfUW7t7NlvDU4QS41RO/view?usp=sharing

[17] 42 U.S.C. § 247d-6d.

[18] 42 U.S.C. § 247d-6d(i)(2).

[19] 42 U.S.C. § 247d-6d.

[20] 42 U.S.C. § 247d-6d(i)(2).

[21] 42 U.S.C. § 247d-6d(i)(4).

[22] 42 U.S.C. § 247d-6d(i)(3).

[23] 42 U.S.C. § 247d-6d(i)(8). The amendment to PREPA’s “covered person” definition to include “[a]ny Federal government employee, contractor, or volunteer who prescribes, administers, delivers or dispenses a Covered Countermeasure[,]” Sixth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, Fed. Reg. Vol. 86, No. 29 (Feb. 16, 2021), 2021-03106.pdf, to the “qualified person” definition doesn’t change my thinking, for reasons probably apparent: GEOFs in the writings discussed aren’t a person “who prescribes, administers, delivers or dispenses a Covered Countermeasure[.]” The reason for that amendment was to “expand the pool of available COVID-19 vaccinators[,]” id., which GEOFs are not.

[24] 42 U.S.C. § 247d-6d(i)(5).

[25] 42 U.S.C. § 247d-6d(i)(6).

[26] 42 U.S.C. § 247d-6d(i)(7).

[27] 42 U.S.C. § 247d-6d(i)(6).

[28] Id.