The lawsuit of a Joint Base Lewis-McChord soldier who alleges she was forced to get anthrax vaccines that made her progressively ill should be dismissed, a federal judge has recommended.
Emel Bosh, 35, and her family allege in their lawsuit against the United States that she suffered flu-like symptoms and ultimately seizures after getting the vaccine three times at Madigan Army Medical Center.
Magistrate Judge Theresa Fricke signed a recommendation Sept. 12 to grant the government’s motion to dismiss the lawsuit.
Bosh has another week or so to object.
“Multiple similar medical cases have found that injuries are incident to service when sustained by active duty service members from care received at a military hospital,” the recommendation says. “... Because plaintiffs claim that the underlying injury was caused by a vaccine administered at Madigan, the injury would be incident to plaintiff Emel Bosh’s service, and therefore barred by Feres.”
The so-called Feres doctrine prevents soldiers from suing the government for harm related to their service.
Bosh has argued the Feres doctrine doesn’t apply to her case. She came to the United States from Turkey in 2012 to complete a masters’s degree, later joined the Army and ultimately worked as a chemical specialist at JBLM.
“Plaintiffs argue that their case should be distinguished from those involving medical negligence,” Fricke’s recommendation says. “Plaintiffs refer to the alleged facts indicating that the forced vaccination constituted an intentional tort and may have been unconstitutionally motivated by racial or religious stigma. However, these reasons would still be insufficient to overcome the Feres doctrine.”
The recommendation noted the Supreme Court’s 1987 decision in the case of another soldier, United States v. Stanley, who sued the United States for injecting him with LSD as part of an experiment about the effects of the drug.
“Here, plaintiffs are suing for damages alleging injuries that stem from the involuntary administration of a drug, while raising doubts about the legality of the program to administer the drug,” Fricke’s recommendation says. “This court must apply the Feres doctrine here, as in Stanley, to bar all tortious and constitutional claims arising from Emel Bosh’s vaccination.
“Therefore the Court recommends that all plaintiff Emel Bosh’s claims arising out of her vaccination should be dismissed for lack of subject matter jurisdiction ... .”