We have been discussing curious Covid-related offenses this year, but a Wisconsin controversy raises a particularly challenging such question. Advocate Aurora Health has admitted that an employee intentionally removed 57 vials of the Moderna vaccine from refrigeration. The intentional act, originally claimed to be accidental, resulted in the destruction of 500 doses of the potentially life-saying vaccine. Advocate Aurora Health said the employee was fired. However, an intentional destruction of the doses would seem the ultimate product tampering case: either compromised vaccines would be given patients or 500 people will have to wait longer for the protection from Covid-19.
The FBI is reportedly investigating the incident. This would seem a serious offense in the midst of a pandemic.
The Justice Department has been investigating fraudulent Covid-19 vaccines or treatments. This is effective destruction of real vaccine. It is unclear whether it would be investigated as tampering. Section 1365 states:
(a)Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate or foreign commerce, or the labeling of, or container for, any such product, or attempts to do so, shall—(1) in the case of an attempt, be fined under this title or imprisoned not more than ten years, or both; (2) if death of an individual results, be fined under this title or imprisoned for any term of years or for life, or both; (3) if serious bodily injury to any individual results, be fined under this title or imprisoned not more than twenty years, or both; and (4) in any other case, be fined under this title or imprisoned not more than ten years, or both.
(b) Whoever, with intent to cause serious injury to the business of any person, taints any consumer product or renders materially false or misleading the labeling of, or container for, a consumer product, if such consumer product affects interstate or foreign commerce, shall be fined under this title or imprisoned not more than three years, or both.
Both section might apply to this circumstance.This is a case where criminal prosecution would be the only effective deterrent. It is difficult for individuals to sue such defendants (or the hospital) due to the risk of contracting Covid-19 or even those who did contract the virus while waiting. We have recent negligence cases, including mistakingly giving a Covid treatment rather than the vaccine. Such errors are easier to address in civil litigation.One of the issues for the FBI will be whether the individual disclosed the tampering or was willing to have the compromised vaccine administered to patients. Even with such disclosure, however, there are 500 people who will have to wait longer for a vaccine in the midst of a national pandemic.