IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHELLE ZIMMERMAN, No. 87629-5-I Appellant,
v. DIVISION ONE
KING COUNTY, WASHINGTON and DOW CONSTANTINE in his official UNPUBLISHED OPINION capacity as King County Executive, the CITY OF SEATTLE, a municipal corporation and BRUCE HARRELL in his official capacity as the Mayor of the City of Seattle, the department of PUBLIC HEALTH - SEATTLE & KING COUNTY and FAISAL KHAN in his official capacity as Director of Public Health - Seattle & King County, and DOES 1 through 100, inclusive,
Respondents.
CHUNG, J. — Michelle Zimmerman was injected with the Janssen –
Johnson & Johnson COVID-19 vaccine (“Janssen Vaccine” or “J&J Vaccine”) on
March 14, 2021, by the Department of Public Health – Seattle & King County
(DPH). 1 After receiving the vaccine, she experienced adverse reactions. She
then filed suit against King County, 2 the city of Seattle (City), and Mayor Bruce
Harrell, alleging a variety of claims, including that they were negligent, failed to
1 We refer to DPH and Faisal Khan in his official capacity as director of DPH collectively
as DPH. 2 We refer to King County, Washington, and Dow Constantine in his official capacity as
King County Executive collectively as King County. No. 87629-5-I/2
obtain her informed consent, made intentional and negligent misrepresentations
and omissions, and failed to follow the accepted standard of care. She sought
declaratory and injunctive relief as well as a writ of mandamus. King County
moved to dismiss under CR 12(b)(6), asserting immunity under the “Public
Readiness and Emergency Preparedness Act,” 42 U.S.C. § 247d, et seq. (PREP
Act). The City and Mayor Harrell also moved to dismiss under CR 12(b)(6),
asserting they were improper parties to the suit, as King County fully
administered DPH. The trial court granted both motions. We affirm the trial
court’s order granting King County’s motion to dismiss all claims for loss,
because the PREP Act provides immunity against such claims. We also conclude
that Zimmerman has not established the elements for a writ of mandamus and,
therefore, we affirm the dismissal of the petition for writ. Finally, we affirm the trial
court’s order to dismiss the City on all claims for the same reasons and,
separately, affirm the dismissal of Mayor Harrell as a party because he was sued
solely in his official capacity.
BACKGROUND 3
Since January 1981, the City and King County have “operate[d] . . . a
combined City and county health department . . . known as the [department of]
‘Public Health—Seattle & King County.’ ” Seattle Municipal Code (SMC)
§ 3.30.010. In March 2021, DPH owned and operated the Kent ShoWare Center
3 As this is an appeal of a motion to dismiss, the facts as alleged in Zimmerman’s
complaint are accepted as true. Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 717, 189 P.3d 168 (2008) (citing Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)) (at motion to dismiss stage, “[a]ll facts alleged in the plaintiff’s complaint are presumed true”).
2 No. 87629-5-I/3
vaccination clinic where Michelle Zimmerman received the Janssen Vaccine.
Zimmerman alleges that “[w]ithin minutes of being injected,” she experienced an
acute anaphylactic reaction to the vaccine that caused her throat and tongue to
swell and a shooting pain down her vaccinated left arm up through her neck to
her left ear. She claims her left wrist dropped to the point where she could not
move it. Zimmerman stayed at the clinic for observation and “was sent home
after an hour.”
After she returned home, the swelling took over three hours to subside.
Further, “she experienced a racing heart and rapid breathing and became
unresponsive,” and she had a fever of 104.8 degrees, which lasted for nine more
days. Her symptoms worsened, and by the end of April 2021, she had developed
left-sided weakness, speech problems, and vestibular problems; experienced
memory loss; lost consciousness; and lost her ability to walk or talk for periods of
time. Zimmerman alleges that “[s]he has been fully disabled ever since.”
On February 27, 2024, Zimmerman filed a “Complaint for Damages and
Petition for Writ of Mandate [sic] Upon Affidavit” against King County, the City,
and Mayor Harrell (collectively, “Defendants”). Her claims against all named
Defendants are predicated solely on actions of DPH. Zimmerman alleges that
DPH failed to comply with public health requirements when it allegedly failed to
keep records, provide her with essential disclosures and safety information, warn
her about possible dangers and side-effects, and report adverse events,
including failing to timely report adverse events to the “Vaccine Adverse Events
Reporting System” (VAERS), and by misrepresenting to her that it filed a VAERS
3 No. 87629-5-I/4
report regarding her adverse event. Zimmerman also alleges that DPH made four
other material misrepresentations by telling her the following:
(a) the [Janssen] Vaccine was approved (as opposed to authorized only for emergency use) by the FDA, (b) the [Janssen] Vaccine was safe and effective, (c) other vaccines were not accessible, and (d) she would not be allowed to continue teaching in person classes at Renton Prep unless she accepted the [Janssen] Vaccine by the end of March 2021.
(Emphasis omitted.) Zimmerman asserts that she would have refused the
vaccine “[b]ut for the Health Care Providers’ material misrepresentations,
omissions, and failure to provide Ms. Zimmerman with the required information,”
and the vaccine “has caused a cascade of neurological reactions incapacitating
her and destroying her career and ability to conduct normal life functions.”
Based on those allegations, Zimmerman brought claims of negligence and
gross negligence; intentional and negligent misrepresentations and omissions
and concealment; failure to secure informed consent; and failure to comply with
the standard of care. Zimmerman requested declaratory and injunctive relief,
including a declaration that “Defendant’s practices have violated, and will
continue to violate, without limitation, substantive and procedural directives of the
applicable statutory law” as well as a permanent injunction enjoining Defendants
from further administering any COVID-19 vaccines . . . without acting in
compliance with . . . all public health guidelines.”
Zimmerman also sought orders that would require Defendants to provide
certain information and to disgorge Defendants’ “unjustly acquired revenue,” and
that would also impose a constructive trust upon Defendants. In addition,
Zimmerman requested restitution, special damages, pre- and post-judgment
4 No. 87629-5-I/5
interest “as allowable,” exemplary or punitive damages, attorneys’ fees, litigation
expenses, and other damages or “further relief” available under the law or “as
equity and justice may require.” Finally, Zimmerman petitioned for mandamus,
seeking to compel Defendants to “complete and submit a true and accurate
VAERS report with the [Department of Health and Human Services]” and
“provide Petitioner and other persons similarly situated with the information and
disclosures . . . mandated by the Secretary’s Declaration, the CDC, FDA, and
other mandatory public health guidelines.”
King County moved to dismiss, asserting immunity from liability under the
PREP Act. The City asserted that it and Mayor Harrell were improper parties to
the lawsuit, as DPH is administered wholly by King County and Zimmerman
alleged no personal actions by Mayor Harrell outside his official capacity. The
superior court agreed with both King County and the City and separately granted
both motions to dismiss. This appeal followed.
DISCUSSION
We review a trial court’s grant of a CR 12(b)(6) motion to dismiss de novo.
Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). Dismissal of a
complaint is justified only if the court, presuming all facts in the plaintiff’s
complaint are true, concludes that the plaintiff cannot prove “ ‘any set of facts
which would justify recovery.’ ” Id. (quoting Tenore v. AT & T Wireless Servs.,
136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). The defense of PREP Act
immunity also presents issues of statutory interpretation, which are “question[s]
of law reviewed de novo.” Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d
5 No. 87629-5-I/6
1003 (2014). See, e.g., Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d
898, 906-07, 479 P.3d 688 (2021) (plain language of RCW 4.24.510, anti-SLAPP
statute, unambiguously afforded immunity to organizations and individuals, so
trial court properly dismissed claims as a matter of law).
I. PREP Act Immunity
Zimmerman challenges the trial court’s conclusion that King County and
the City are immune from her claims under 42 U.S.C. § 247d-6d(a)(1) of the
PREP Act. We hold that King County and the City are immune from all of
Zimmerman’s claims that are “claims for loss” under the PREP Act, which
excludes her petition for a writ of mandamus.
Enacted in 2005, the PREP Act authorizes the secretary of the
Department of Health and Human Services (Secretary) to issue a declaration
when the Secretary makes a “determination that a disease or other health
condition or other threat to health constitutes a public health emergency.” 42
U.S.C. § 247d-6d(b)(1). In the declaration, the Secretary “may specify[ ] the
manufacture, testing, development, distribution, administration, or use” of
“covered countermeasures.” Id. A vaccine is a covered countermeasure. § 247d-
6d(i)(1)(C).
When the Secretary has issued such a declaration, the statute confers
immunity to “covered persons” 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 caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.
6 No. 87629-5-I/7
§ 247d-6d(a)(1). This immunity “applies to any claim for loss that has a causal
relationship with the administration to or use by an individual of a covered
countermeasure, including a causal relationship with . . . dispensing, prescribing,
administration, licensing, or use of such countermeasure.” § 247d-6d(a)(2)(B).
The PREP Act defines “ ‘loss’ ” as “any type of loss, including—(i) death; (ii)
physical, mental, or emotional injury, illness, disability, or condition; (iii) fear of
physical, mental, or emotional injury, illness, disability, or condition, including any
need for medical monitoring; and (iv) loss of or damage to property, including
business interruption loss.” § 247d-6d(a)(2)(A).
“The Secretary ‘controls the scope of immunity through the declaration
and amendments, within the confines of the PREP Act.’ ” Saldana v. Glenhaven
Healthcare LLC, 27 F.4th 679, 687 (9th Cir. 2022) (quoting Maglioli v. All. HC
Holdings LLC, 16 F.4th 393, 401 (3d Cir. 2021)). The “sole exception” to the
PREP Act’s grant of immunity is a federal cause of action against a covered
person whose “willful misconduct” causes “death or serious physical injury.”
§ 247d-6d(d)(1). This exception does not apply to negligent or reckless conduct
resulting in loss. § 247d-6d(c)(1)(B).
Effective February 4, 2020, the Secretary declared the COVID-19
pandemic to be a public health emergency and set out covered countermeasures
under the PREP Act. See Declaration Under the Public Readiness and
Emergency Preparedness Act for Medical Countermeasures Against COVID-19
7 No. 87629-5-I/8
(“Declaration”), 85 Fed. Reg. 15198 (Mar. 17, 2020). 4 As relevant here, the
Secretary defined “Covered Countermeasures” as “any antiviral, any other drug,
any biologic, any diagnostic, any other device, or any vaccine used to treat,
diagnose, cure, prevent, or mitigate COVID-19.” Id. at 15202.
Here, the parties agree that DPH is a “covered person” and the Janssen
Vaccine is a “covered countermeasure” within the meaning of § 247d-6d(a)(1).
The parties’ dispute concerns two different aspects of § 247d-6d(a)(1). First,
Zimmerman asserts that DPH’s actions do not arise out of the administration of a
covered countermeasure because a countermeasure is covered only if it is
administered in accordance with the conditions set by the Secretary in its
Declaration. Second, Zimmerman asserts that her claims do not amount to
“claims for loss” under § 247d-6d(a)(1).
As to Zimmerman’s first contention, she argues that DPH lacks PREP Act
immunity for its interactions with her because in administering the Janssen Vaccine
to her, DPH failed to follow certain conditions specified by the Secretary regarding
the use of the vaccine as a covered countermeasure. Zimmerman focuses on the
4 The Declaration has been amended 12 times since it was first published on March 10,
2020, most recently in December 2024. See 12th Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 89 Fed. Reg. 99875 (Dec. 11, 2024). The relevant portions of the Declaration have not changed across the 12 amendments. At the time Zimmerman received the Janssen Vaccine, the seventh amended version of the Declaration was in effect. See Seventh Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 86 Fed. Reg. 14462, 14463 (Mar. 16, 2021) (“This amendment to the Declaration is effective as of March 11, 2021.”) The parties have not included all amended versions in the record on appeal, but both primarily cite to the initial 2020 Declaration in their briefing to this court. Zimmerman’s complaint cites to the initial 2020 Declaration. Because there is no substantive difference between the versions for the purposes of this analysis, and in light of how the parties have cited the Declaration, this opinion cites to the text of the initial 2020 Declaration. See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID–19, 85 Fed. Reg. 15198, 15202 (Mar. 17, 2020).
8 No. 87629-5-I/9
modifying clause in § 247d-6d(a)(1): “a covered person shall be immune [from
claims] . . . arising out of . . . administration . . . of a covered countermeasure . . .
if a declaration under subsection (b). . . has been issued with respect to such
countermeasure.” (Emphasis added). More specifically, the PREP Act describes
such a declaration as follows:
[I]f the Secretary makes a determination that a disease or other health condition or other threat to health constitutes a public health emergency . . . the Secretary may make a declaration . . . recommending, under conditions as the Secretary may specify . . . the use of one or more covered countermeasures, and stating that subsection (a) . . . is in effect with respect to the activities so recommended.
§ 247d-6d(b)(1) (emphasis added).
Accordingly, Zimmerman argues that a covered countermeasure is
afforded immunity under the PREP Act only if (1) the covered person administers
the countermeasure in accordance with the conditions as the Secretary has
specified in its declaration and (2) the Secretary has stated immunity under
subsection (a) applies “to the activities so recommended.” The Declaration here
specifically afforded immunity to “[a]ctivities authorized in accordance with the
public health and medical response of the Authority Having Jurisdiction.” .” But,
Zimmerman alleges, DPH failed to follow the public health guidance issued by
“Authorities Having Jurisdiction,” including the “Emergency Use Authorization”
issued by the Center for Biologics Evaluation and Research and various U.S.
Food and Drug Administration (FDA) fact sheets. 5 Zimmerman claims that
5 Zimmerman frames her argument as a non-preempted parallel state claim for loss. After
oral argument, Zimmerman filed a statement of additional authorities noting the recent decision in Hencely v. Fluor Corp., 608 U.S. ---, 146 S. Ct. 1086 (April 22, 2026), asserting that it addresses issues of federal preemption of state law and immunity from liability for federal contractors. But a preemption analysis is unnecessary here, as the issue is not preemption, but whether the federal
9 No. 87629-5-I/10
because compliance with this public health guidance is a condition the Secretary
has specified in the Declaration, DPH is not immune under the PREP Act.
We disagree. Zimmerman’s argument requires that we interpret PREP Act
immunity to extend only to proper administration of a covered countermeasure.
But no such modifier appears before the word “administration” in the immunity
statute, and “[w]e cannot add words or clauses to an unambiguous statute when
the legislature has chosen not to include that language.” State v. Delgado, 148
Wn.2d 723, 727, 63 P.3d 792 (2003).
Further, the PREP Act affords immunity to covered parties for claims
“resulting from the administration to or the use by an individual of a covered
countermeasure.” 42 U.S.C. § 247d-6d(a)(1). Zimmerman’s claims here all
concern such administration. While their decisions are not controlling, other
courts have provided helpful guidance on what constitutes “administration” of a
covered countermeasure. For example, a Kansas court held that the PREP Act
confers immunity against negligence claims based, even in part, on alleged
failure to disclose “dangers associated with Covid vaccines,” reasoning that
“claims for withholding or misrepresenting information are properly characterized
as claims for the alleged improper administration of a covered countermeasure.
That is, they relate to how that covered countermeasure was administered and
are thus covered under the Act.” M.T. v. Walmart Stores, Inc., 63 Kan. App. 2d
statutory immunity applies to state law claims. See M.T. v. Walmart Stores, Inc., 63 Kan. App. 2d 401, 410, 417, 528 P.3d 1067 (2023), review denied (Aug. 25, 2023) (“Whether PREP Act immunity completely preempts state law negligence claims for the purposes of federal jurisdiction is different from [the] argument . . . that . . . state law negligence claims are exempt from the Act’s immunity provision.”) (emphasis in original).
10 No. 87629-5-I/11
401, 410, 417, 528 P.3d 1067 (2023), review denied (Aug. 25, 2023). Here, one
of Zimmerman’s claims is precisely the same as the claim in M.T.: that DPH
failed to properly disclose information that, if provided, would have caused her to
not get vaccinated.
PREP Act immunity allows for an “expansive causal relationship” between
an injury and the administration of a covered countermeasure. Maney v. Brown,
91 F.4th 1296, 1300-01 (9th Cir. 2024) (holding PREP Act immunity applied to
correctional facility’s assignment of priority vaccination tiers to inmates as part of
administering COVID-19 vaccinations). Injuries that are “inextricably intertwined
with the use of a covered countermeasure” are subject to PREP immunity. See
Solomon v. St. Joseph Hosp., No. 20-CV-3213, 2021 WL 10313712 at *3
(E.D.N.Y. Sept. 29, 2021), vacated and remanded on other grounds, 62 F.4th 54
(2d Cir. 2023). For example, a federal court in New Mexico held that PREP Act
immunity applied where a plaintiff received a COVID-19 vaccination and fell in
the parking lot on her way to sit in her car because there were “no chairs to sit on
for monitoring immediately following inoculation,” reasoning that the “chain of
events . . . cannot be divorced from the administration of a covered
countermeasure.” Storment v. Walgreen, Co., No. 1:21-CV-00898 MIS/CG, 2022
WL 2966607 at *3 (D.N.M. July 27, 2022). Similarly, a federal court in California
applied PREP Act immunity to a claim against Costco for “failing to have
adequate safeguards when administering the [COVID-19] vaccine” because the
injury was “causally connect[ed] . . . to the vaccine administration.” Tate v.
11 No. 87629-5-I/12
Costco Wholesale Corp., No. 23-CV-01399-RFL, 2024 WL 4489443 at *2 (N.D.
Cal. Oct. 2, 2024).
On the other hand, PREP Act immunity is not boundless and does not
cover injuries that are only tenuously related to administration of a covered
countermeasure. For example, a federal court in New York held there was no
PREP Act immunity for a doctor where the plaintiff “developed severe pressure
sores from remaining stationary for an extended period” while on a ventilator to
treat COVID-19, reasoning, “While [the plaintiff] was indisputably being treated
for COVID-19 with a [covered countermeasure] during the period that he
acquired a pressure injury, the claims he has brought are not so inextricably
intertwined with the use of a covered countermeasure so as to invoke PREP Act
preemption at this stage.” Solomon, 2021 WL 10313712 at *3. Similarly, another
federal court did not extend PREP Act immunity to a nursing home’s alleged
failure to manage COVID-19 risks by, for example, failing to establish an infection
prevention plan or provide its staff with personal protective equipment, because
the claim did not arise out of use of covered countermeasures. See Testa v.
Broomall Operating Co., L.P., 622 F. Supp. 3d 4 (E.D. Pa. 2022); see also Est. of
Peterson v. Koelsch Senior Cmtys., LLC, No. CV 22-11-BLG-SPW, 2023 WL
2300650 (D. Mont. Mar. 1, 2023) (no PREP Act immunity for senior care facility
where claims arose out of “failure to provide adequate care generally, not specific
to COVID-19,” even though alleged breaches occurred during COVID-19
outbreak, because the claims did not “implicate a covered countermeasure.”). In
12 No. 87629-5-I/13
contrast, here, Zimmerman herself states her claims stem directly from the
administration of the Janssen Vaccine, a covered countermeasure.
To read the statute as Zimmerman suggests would also diminish the
PREP Act’s intentionally “sweeping” and “broad” conferred immunity. See
Saunders v. Big Blue Healthcare, Inc., 522 F. Supp. 3d 946, 955-56 (D. Kan.
2021). Indeed, the PREP Act contemplates exactly the types of harm from
vaccine administration experienced by Zimmerman, and, accordingly,
established the “Covered Countermeasure Process Fund” specifically to afford
“adequate compensation to eligible individuals for covered injuries directly
caused by the administration or use of a covered countermeasure.” 42 U.S.C.
§ 247d-6e(a). If Zimmerman’s reading of the PREP Act is correct—that there is
no immunity for covered persons who fail to perfectly administer a covered
countermeasure—then the Covered Countermeasure Process Fund would be
rendered largely superfluous. We reject Zimmerman’s reading of the PREP Act
and hold that PREP Act immunity applies to all of her “claims for loss.”
II. “Claims for Loss”
Immunity under § 247d-6d(a)(1) covers “claims for loss.” The PREP Act
defines “loss” as any type of loss, including—
(i) death; (ii) physical, mental, or emotional injury, illness, disability, or condition; (iii) fear of physical, mental, or emotional injury, illness, disability, or condition, including any need for medical monitoring; and (iv) loss of or damage to property, including business interruption loss.
13 No. 87629-5-I/14
42 U.S.C. § 247d-6d(a)(2). King County6 argues that it is immune because
Zimmerman’s claims are all within the plain language definition of “claims for
loss” under the PREP Act. Zimmerman counters that in addition to her claims for
damages, she sought injunctive relief through her mandamus petition, and such
relief is not a “claim for loss.” She further argues that her claims involve
“individual liberty rights” and the “right to bodily integrity” under the 5th and 14th
Amendments.
Zimmerman’s complaint did not assert constitutional violations. Instead, it
included claims for negligence, gross negligence, failure to obtain informed
consent, intentional and negligent misrepresentation and omission, and failure to
follow the accepted standard of care. Zimmerman nevertheless contends that
she may raise these constitutional violations for the first time on appeal under
RAP 2.5, which states that “a party may raise the following claimed errors for the
first time in the appellate court: . . . (3) manifest error affecting a constitutional
right.” But Zimmerman’s claim on appeal is that the trial court erred in dismissing
her claims under CR 12(b)(6). In reviewing a CR 12(b)(6) dismissal, we review
only the contents of the complaint as pleaded. See Deegan v. Windermere Real
Est./Ctr.-Isle, Inc., 197 Wn. App. 875, 391 P.3d 582 (2017) (de novo review of
12(b)(6) motion is based “on the complaint and hypothetical facts,” not
hypothetical claims). Moreover, Zimmerman does not provide legal authority or
engage with the applicable legal test to demonstrate why constitutional error is
manifest. Accordingly, we do not consider Zimmerman’s purported constitutional
6 Pursuant to RAP 10.1(g), the City joined King County’s argument with respect to PREP
Act immunity, to the extent it shared responsibility for DPH administration, which it disputed.
14 No. 87629-5-I/15
claims that she raises for the first time on appeal. 7 See State v. Elliott, 114 Wn.2d
6, 15, 785 P.2d 440 (1990) (“This court will not consider claims insufficiently
argued by the parties.”).
As for her other claims, Zimmerman’s complaint asserts the injuries of
permanent disability and career interruption. We agree with King County that
claims related to these injuries constitute “claims for loss” under the plain
statutory definition of “loss” as “any type of loss,” including “disability” and
“business interruption.” 42 U.S.C. § 247d-6d(a)(2). See State v. Gray, 174 Wn.2d
920, 927, 280 P.3d 1110 (2012) (“If the statute is unambiguous after a review of
the plain meaning, the court's inquiry is at an end.”) Accordingly, the trial court
correctly dismissed most of Zimmerman’s claims based on PREP Act immunity,
including her first through fourth claims for relief—specifically, negligence and
gross negligence, intentional and negligent misrepresentations and omissions
and concealment, failure to secure informed consent, and failure to comply with
the standard of care.
However, to the extent Zimmerman’s fifth claim for relief seeks relief in the
form of an injunction or writ of mandamus on a basis different from a claim for
loss, it is not a “claim for loss” and, therefore, is not precluded by PREP Act
immunity. Zimmerman’s petition asks the court to require DPH8 to “submit a true
and accurate VAERS report with [the Department of Health and Human
7 Likewise, Zimmerman’s contention that the dismissal impedes her right to access the
courts also fails. The dismissal did not preclude Zimmerman from asserting her constitutional rights in court, as she had not asserted any constitutional claims in her complaint. See Sys. Amusement, Inc. v. State, 7 Wn. App. 516, 518, 500 P.2d 1253 (1972) (due process clause does not guarantee a cause of action, but is instead “a protection against arbitrary action by the state”). 8 In her petition, Zimmerman argues that DPH includes King County, the City, and DPH
and Director Khan.
15 No. 87629-5-I/16
Services]” regarding her adverse reaction to the Janssen Vaccine and “provide
Petitioner and other persons similarly situated with the information and
disclosures . . . mandated by the Secretary’s Declaration, the [Centers for
Disease Control and Prevention], FDA, and other mandatory public health
guidelines.” Zimmerman asserts that DPH had a duty to file a VAERS report, that
it has continued to misrepresent to her that it filed a VAERS report, and that not
having an official VAERS report filed by DPH has caused her disability benefits to
be withheld. Zimmerman also asserts that not being provided the appropriate
disclosures “continues to cause her harm by withholding from her and her health
care team authentic updated information . . . about the known risks and side
effects of the [Janssen] Vaccine which is needed . . . for the diagnosis and
treatment of her condition.”
King County argues that Zimmerman’s requests for injunctive relief and
mandamus are “claims for loss” because the remedies she seeks are rooted in
her disability claims, as she seeks the VAERS report to receive disability benefits
and she seeks updated disclosures to assist in her disability treatment. We
disagree. Losses are tangible harms for which compensation can be measured
and are awarded to make the plaintiff whole. See Spokane Truck & Dray Co. v.
Hoefer, 2 Wash. 45, 53, 25 P. 1072 (1891) (“[E]very actual loss, and some of
which frequently border on the imaginary, are paid for under the rule of
compensatory damages. The plaintiff is made entirely whole.”) Injunctive relief is
a form of equitable relief that seeks to compel action when there is no other
adequate remedy at law, such as monetary damages for loss. See Kucera v.
16 No. 87629-5-I/17
Dep’t of Transp., 140 Wn.2d 200, 210, 995 P.2d 63 (2000). The goal of injunctive
relief is to “restrain present or threatened future wrongful acts” and prevent harm.
Lewis Pac. Dairymen's Ass’n v. Turner, 50 Wn.2d 762, 776, 314 P.2d 625
(1957). Even if Zimmerman’s request for a VAERS report is for the purpose of
her seeking disability benefits, she is not seeking payment of such benefits from
DPH, but rather, relief in the form of action by DPH. Accordingly, we hold that
Zimmerman’s petition for mandamus is not appropriately characterized as a
“claim for loss” under the PREP Act, nor is Zimmerman precluded from seeking
injunctive relief in the form of filing a VAERS report.
III. Writ of Mandamus
“A party seeking a writ of mandamus must show that (1) the party subject
to the writ has a clear duty to act; (2) the petitioner has no plain, speedy, and
adequate remedy in the ordinary course of law; and (3) the petitioner is
beneficially interested.” Seattle Times Co. v. Serko, 170 Wn.2d 581, 588-89, 243
P.3d 919 (2010) (citing RCW 7.16.160). Petitioners bear “the ‘demanding’ burden
of proving all three elements justifying mandamus.” Eugster v. City of Spokane,
118 Wn. App. 383, 403, 76 P.3d 741 (2003) (quoting Mallard v. U.S. Dist. Court
of Iowa, 490 U.S. 296, 309 (1989)).
King County contends this court should affirm the dismissal of
Zimmerman’s mandamus petition because it would otherwise fail on the merits. 9
9 Neither King County nor the City briefed the lower court on the merits of the mandamus.
“As a general rule, appellate courts will not consider issues raised for the first time on appeal.” State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). However, as all parties had the opportunity to brief this issue to this court and did so, we exercise our discretion to address the merits of the petition for a writ.
17 No. 87629-5-I/18
Specifically, King County argues on appeal that DPH had no duty to file the
VAERS report at the time of Zimmerman’s petition and that Zimmerman had
“plain, speedy, and adequate remedies” in the ordinary course of law. 10
The determination of whether a statute specifies a duty that the person
must perform is a question of law. River Park Square, L.L.C. v. Miggins, 143
Wn.2d 68, 76, 17 P.3d 1178 (2001). King County argues that it was under no
duty to act because the “Janssen Emergency Use Authorization” was revoked
nine months before Zimmerman filed her petition. See Revocation of Emergency
Use of a Biological Product During the COVID-19 Pandemic; Availability, 89 Fed.
Reg. 83021 (Oct. 15, 2024) (revocation of Janssen Emergency Use Authorization
effective June 1, 2023). Generally, “[t]he duty to be enforced by mandamus must
be one which exists at the time when the application for the writ is made.” State
ex rel. Hamilton v. Cohn, 1 Wn.2d 54, 58-59, 95 P.2d 38 (1939). Thus, courts
have refused to issue writs “in anticipation of a failure to discharge a duty.” See
Freeman v. Gregoire, 171 Wn.2d 316, 333, 256 P.3d 264 (2011) (holding that
petitioners failed to identify a present duty to transfer I-90 center lanes to Sound
Transit for light rail use, so petition for a writ was premature); Walker v. Munro,
124 Wn.2d 402, 409, 879 P.2d 920 (1994) (court refused to issue writ prohibiting
10 King County does not suggest it is impossible for it to submit a VAERS report now;
rather, it argues that Zimmerman already filed her own VAERS report, and, thus, she “had already capitalized on plain and adequate remedies” and failed to explain “why this independent self-reporting would be considered less ‘official’ for the purpose of securing disability benefits.” But in its briefing to this court, King County acknowledges that there is not a developed record on the facts of Zimmerman’s access to remedies and that appellate courts “should remand to the trial court for fact finding if the record is not fully developed on that issue.” King County quoting Dalton M, LLC v. N. Cascade Tr. Servs., Inc., 2 Wn.3d 36, 54, 534 P.3d 339 (2023)). Indeed, “[t]his court generally cannot make findings of fact and will not endeavor to do so based on an incomplete record.” Garcia v. Henley, 190 Wn.2d 539, 544, 415 P.3d 241 (2018).
18 No. 87629-5-I/19
secretary of state and legislature from implementing and enforcing an initiative
that had not yet gone into effect because such duties “are not yet being
performed, nor are they capable of performance, until the effective dates of the
provisions.”).
The parties do not provide authority addressing whether a past duty to
report an adverse reaction from a past vaccination continues as a present duty
owed to the individual with regard to that event, even if changes in the law
removed that obligation for later vaccinations. In support of its argument that it
had no duty to act, King County cites Colvin v. lnslee, 195 Wn.2d 879, 467 P.3d
953 (2020); but Colvin does not address whether a past duty to report can
continue as a present duty, even if the law has subsequently changed. “Where
no authorities are cited in support of a proposition, the court is not required to
search out authorities.” DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126,
372 P.2d 193 (1962). Accordingly, we reject King County’s argument.
Nevertheless, Zimmerman also has not identified sufficient law to
establish a duty to act. In her fifth claim for relief, Zimmerman alleges as follows
regarding the issue of duty:
Respondents have a duty to comply with the requirements of the Secretary’s declarations and the FDA, HHS, and CDC and other mandatory public health guidelines and directives in administering, dispensing, and using the J&J Vaccine, (b) public health guidance from all applicable authorities having jurisdiction over the administration, dispensing, and use of the J&J Vaccine, (c) the applicable federal contracts and agreements related to the administration, dispensing, and use of the J&J Vaccine; and (d) all requirements of all federal and other authorities having jurisdiction applicable to the administration, dispensing, and use of the J&J Vaccine, including without limitation those set forth in:
19 No. 87629-5-I/20
(a) the March 10, 2020 initial declaration for medical countermeasures against COVID–19 (85 FR 15198, Mar. 17, 2020) and all subsequent amendments thereto issued by the Secretary of Health and Human Services; (b) 42 U.S.C. § 247d-6e – [“]Covered countermeasure process” which requires that the Health Care Providers administer vaccines consistent with any applicable guidelines of the CDC; and (c) the laws, rules, regulations, and other guidelines of other applicable authorities, public agencies, and their delegates having jurisdiction, responsibility, and authority over the manufacture, distribution, and administration of medical countermeasures in response to the Secretary’s Declaration of emergency.
These exceedingly general references are not sufficient to meet
Zimmerman’s burden to identify a clear duty to act. “A writ of mandamus is a rare
and extraordinary remedy because it allows courts to command another branch
of government to take a specific action, something the separation of powers
typically forbids.” Colvin, 195 Wn.2d at 890-91. Accordingly, mandamus is an
appropriate remedy only “ ‘where the law prescribes and defines the duty to be
performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment.’ ” SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593,
599, 229 P.3d 774 (2010) (emphasis omitted) (quoting State ex rel. Clark v. City
of Seattle, 137 Wash. 455, 461, 242 P. 966 (1926)). “[E]ven a mandatory duty is
not subject to mandamus unless it is also ministerial, or nondiscretionary, in
nature.” Id. (rejecting petitioner’s argument based on statutory language that the
governor “must” include the funding request in her budget proposal). Thus,
Zimmerman’s reliance on general requirements for reporting of adverse events
associated with vaccines—even if various federal laws and implementing
20 No. 87629-5-I/21
documents use the words “shall” and require certain actions—is insufficient to
establish the duty element for a writ of mandamus. 11
Next, in Zimmerman’s reply brief, as an additional source of a duty, she
cites a statute not mentioned in her petition—RCW 70.02.100, which addresses
correction or amendment of a patient’s health care records. Based on RCW
70.02.100, she argues that “Respondents have a duty to accurately and
completely record and report [her] serious adverse reaction to the vaccine they
used on her” and that they “continue to refuse to perform their duty to correct,
amend, record, and report her anaphylactic reaction and disability in her medical
records.”
Ordinarily we do not consider arguments raised for the first time in reply.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992). Even if we were to consider her new argument as to the source of the
duty, ch. 70.02 RCW allows for civil remedies in the form of a direct action
against the health care provider. RCW 70.02.170. Where a cause of action
exists, a petitioner has a remedy in the ordinary course of law and a writ is not
available. See Walsh v. Hobbs, 3 Wn.3d 914, 921, 557 P.3d 701 (2024)
(“mandamus relief is available only if there is no plain, speedy, and adequate
remedy in the ordinary course of law”). Thus, Zimmerman cannot establish the
second element for a writ, that she lacks a plain, speedy, and adequate remedy
in the ordinary course of law.
11 Indeed, King County notes that the only sources of authority that Zimmerman cites for
the duties to provide vaccine fact sheet disclosures and report to the VAERS system “do not, by their own terms, mandate VAERS reporting or vaccine fact sheet disclosure.”
21 No. 87629-5-I/22
We conclude Zimmerman’s mandamus petition does not state a claim for
relief sufficient to withstand a CR 12(b)(6) motion. Accordingly, we affirm the trial
court’s order dismissing Zimmerman’s fifth claim for relief.
IV. Claims against the City and Mayor Harrell
We affirm the dismissal of claims against the City for the same reasons
stated above for the dismissal of the claims against King County: The City enjoys
PREP Act immunity for Zimmerman’s claims for loss, and Zimmerman fails to
satisfy all elements required for a writ of mandamus.
As to now former Mayor Harrell, Zimmerman does not allege any specific
actions he took as an individual; she names him in her complaint only insofar as
he “is Mayor of the City of Seattle and the chief executive and administrative
officer of the City, in charge of . . . the DPH.” His inclusion in the lawsuit is solely
on the basis of his role over the municipality, consistent with an “official capacity”
lawsuit. See Hanson v. Carmona, 1 Wn.3d 362, 375-77, 525 P.3d 940 (2023)
(government entities can act only through its employees, and acts within the
scope of employment of the government “are the acts of the government entity
itself”). “Official capacity” lawsuits are duplicative where the official’s office is also
named in a lawsuit, because the suit against the official “ ‘is no different from a
suit against the [office] itself.’ ” Triplett v. Wash. State Dep’t of Soc. & Health
Servs., 193 Wn. App. 497, 509, 373 P.3d 279 (2016) (quoting Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989)). Accordingly, the trial court appropriately
dismissed Mayor Harrell as a party.
22 No. 87629-5-I/23
CONCLUSION
We affirm the dismissal of Zimmerman’s claims against all Defendants
because the PREP Act provides immunity for all claims for loss, and Zimmerman
fails to establish the required elements for a writ of mandamus. We further affirm
the trial court’s separate dismissal of Mayor Harrell as a party because he was
sued solely in his official capacity.
WE CONCUR: