A soldier’s lawsuit against the U.S. government was dismissed Thursday after she alleged that she was forced to take the anthrax vaccine three times, despite experiencing flu-like symptoms and vomiting after the first two shots.
The soldier, 35-year-old chemical specialist Emel Bosh, claims that after the third vaccination, which she protested taking, she had seizures for days afterwards and had to go to the emergency room, according to the lawsuit.
The U.S. government filed a motion to dismiss the lawsuit, arguing that “a long line of binding precedent” establishes that active duty personnel are effectively barred from collecting damages from the U.S. government for personal injuries incurred while performing their duties, according to the court filings.
The U.S. District Court for the Western District of Washington ultimately agreed with the government’s reasoning and dismissed the case. Bosh’s attorneys have two weeks to file an objection.
Bosh referred Army Times’ request for comment to her attorney, who in turn did not respond Friday afternoon.
In her lawsuit, she claimed to have suffered progressively worse symptoms after anthrax vaccinations at Madigan Army Medical Center, on Joint Base Lewis-McChord, Washington, in December 2017, April 2018 and August 2018.
The anthrax vaccine requires three vaccinations, followed by annual boosters.
Bosh, who serves as a chemical, biological, radiological and nuclear specialist, filed the lawsuit against the government under the Federal Tort Claims Act this July.
The lawsuit sought unspecified damages owing to her family’s distress during the vaccination regimen.
The lawsuit states that after the first vaccine, Bosh experienced flu-like symptoms including headaches, sweats and coughing. After the second shot, she experienced nausea, vomiting and migraines, in addition to her prior symptoms.
She also received emergency room treatment for migraines during this period, according to the lawsuit.
“The progressively worsening reactions to the first two vaccines led plaintiff to withdraw her informed consent to the third administration of the vaccine, and she repeatedly requested a waiver from vaccination from the Army doctor, her patient advocate, and her chain of command," court filings read.
“Although she received a week-long delay in vaccine, she did not obtain a waiver,” the filings add.
After the compulsory administration of the third anthrax vaccine, Bosh developed nausea within a day. More symptoms developed over the course of weeks resulting in multiple overnight stints at the hospital.
Army medical staff instructed Emel Bosh and her husband, Arly Bosh, to wait out the reaction at home and avoid seeking treatment, the couple stated in the documents. But when his wife became non-responsive during episodes of seizure-like shaking, the husband paid out-of-pocket for emergency room treatment, according to the court filings.
The seizure-like episodes continued for at least three weeks after the administration of the vaccine, according to the documents.
The government invoked the Feres doctrine in its motion to dismiss, stating that “even accepting the version of the facts set forth in plaintiffs’ complaint, plaintiffs have failed to state a constitutional claim."
Bosh’s lawsuit argued that the Feres doctrine doesn’t apply to her case, because there was an “intentional and discriminatory nature” against her from Army personnel due to the fact that she is a woman who immigrated from Turkey, a Muslim-majority country. Though, she is not Muslim.
Her background made her a target of harassment and abuse from her superiors and fellow soldiers in her area of expertise, the lawsuit alleged. The “forced vaccination constituted an intentional tort and may have been unconstitutionally motivated by racial or religious stigma," court filings read.
“These reasons would still be insufficient to overcome the Feres doctrine,” U.S. attorneys wrote in their motion to dismiss. “Feres bars suits for all injuries sustained incident to service by service members, whether the service members style their complaint in intentional tort claims or simple negligence claims.”
The court did not find Bosh’s reasoning compelling and ultimately dismissed the case based on the Feres doctrine that the government introduced.
The anthrax vaccine has been controversial in past years. In 2004, the U.S. military was ordered by the courts to stop the inoculation of troops with anthrax vaccine adsorbed, or AVA, until the Food and Drug Administration approved the vaccine as safe for general use.
A congressional report from September 2002 states that 85 percent of surveyed service members had an adverse reaction after receiving at least one anthrax vaccination.
“This overall rate reported for adverse reactions following anthrax immunization was more than double the rate published in the vaccine manufacturer’s product insert that was in use at the time of our survey (84 percent versus approximately 30 percent),” the congressional report reads.
On Dec. 19, 2005, the FDA classified AVA as “safe and effective and not misbranded,” dissolving the injunction and allowing the military to resume mandatory inoculation of troops.
Anthrax is caused by bacteria called Bacillus anthracis. People can get anthrax from contact with infected animals, wool, meat, or hides, according to the Centers for Disease Control and Prevention.
The U.S. military’s concerns regarding anthrax stem from it being relatively simple to weaponize.
Kyle Rempfer is an editor and reporter whose investigations have covered combat operations, criminal cases, foreign military assistance and training accidents. Before entering journalism, Kyle served in U.S. Air Force Special Tactics and deployed in 2014 to Paktika Province, Afghanistan, and Baghdad, Iraq.