On November 21, 2019, the Court of Appeals in Michigan rejected the appeal of Lori Matheson against a trial court order ordering her to give her daughter more time with her father, to vaccinate her daughter according to the recommended schedule, and to choose a new pediatrician for the child in collaboration with her father. The court found that it’s in the child’s best interest to be vaccinated.
This is a dispute between the divorced parents of a now four-year-old child (whose name is omitted for her privacy) about her care and custody. Vaccines are only one of the issues in dispute, the one I will focus on (since that is my area).
Fenton, Michigan
Background of Lori Matheson case
The anti-vaccine movement latched onto this very personal, private case including funding the participation of a corporate New York lawyer with anti-vaccine sympathies. The lawyer, among other things, conducted an abusive deposition of vaccine expert Stanley Plotkin, interrogating him for nine hours in an attempt to catch him in a gotcha (and not doing so well, in spite of the way anti-vaccine activists tried to latch onto some of his individual statements).
The New York attorney also cross-examined Dr. Holthrop, the father’s witness and the head of the Michigan AAP chapter, at the time, and although that cross-examination generated some YouTube moments for the anti-vaccine movement, it did not succeed in undermining Dr. Holthrop’s credibility with the trial or appellate court – both the trial and appellate decisions both relied on Dr. Holthrop’s testimony, in part, in their discussion of why the child should be vaccinated.
I have previously discussed the court proceedings and the initial decision regarding the Lori Matheson case. The trial court, as I mentioned, ordered the child vaccinated. Ms. Matheson appealed.
On November 21, 2019, the Court of Appeals rejected the appeal on all issues. I will focus only on the vaccines issue, though I will have to address the standard to get there.
Prudenville, Michigan
Child’s best interest
The starting point for any discussion of custody, the court explained, is the child’s best interest. And “A strong presumption exists that the child’s best interests are served by fostering a strong relationship with both parents.”
In addition, the statutory standard requires that change to the “established custodial environment” be based on “clear and convincing evidence that it is in the best interest of the child.” The “established custodial environment” addresses “to whom the child looks to meet the child’s needs for guidance, discipline, parental comfort, and life’s necessities.”
In other words, it asks who the child expects will parent her.
If the requested changes are not a change in the “established custodial environment”, a lower standard of proof is enough to show that the change is in the child’s best interest – the usual standard of proof in civil cases, or “preponderance of evidence” – sometimes referred to as “more likely than not”, or 50%+. The parent seeking a change has to show that there’s a “proper cause” for the change.
In this case, both parents had legal custody from the start, but during infancy, the child was mostly with the mother, who was breastfeeding. However, the court found that both parents have an established custodial and parental relationship with the child.
This was based in part on the father’s testimony about the relationship, which was that he:
… makes sure to spend all of his allotted parenting time with the child, the child is always happy to see him, and he brings her snacks, a change of clothes, and a pair of shoes. When he and the child are together, they will go to church, visit friends, and he recently took her canoeing.
Defendant also testified that he attends all of the child’s medical appointments. Defendant stated that the child loves spending time with him, that she is a great eater when she is with him, and she enjoys trying new foods such as peanut butter and honey sandwiches, yogurt, apple sauce, and any meat.
Defendant explained that he had been teaching the child her letters, colors, and numbers. Defendant explained that his reason for seeking increased parenting time was so that the child would not have to wait until every other week to see him.
In addition, the father routinely attended medical appointments. The appeal court concluded that the trial court’s finding that the “child had an established custodial environment with both plaintiff and defendant” was “supported by the record,” based on this.
Lori Matheson and vaccines
On vaccines, Lori Matheson made two arguments. First, she argued that because of autoimmune diseases in a family member, the child is at high risk of harm from vaccines; second, she claimed she had religious objections to vaccines.
The court of appeals agreed with the mother that vaccines carry some risks, and agreed that the mother demonstrated a history of autoimmune diseases. But it found that neither point meant the child should not be vaccinated.
The court affirmatively repeated what the trial court said:
…what is at issue is whether the administration of vaccinations is in the child’s best interests, taking into account her physical health. Even accepting as valid and accurate plaintiff’s contention that the child bears some predisposition to incurring an autoimmune disorder because of her family history, this attenuated risk, in and of itself, simply does not outweigh the significant benefits that would inure to the child by protecting her from the threat of serious and life-endangering diseases in the population.
Put another way, the threat of harm to the child by exposing her to vaccines that could potentially trigger an autoimmune disorder is speculative, and the record does not otherwise demonstrate that the child would be put at risk of harm by receiving vaccinations.
The court pointed out that the child’s pediatrician, Dr. Marcus, supported vaccinating her on schedule, and Dr. Holthrop, who reviewed the child’s records, highly recommended the child should be vaccinated. In contrast, Dr. Toni Bark, testifying on the mother’s behalf, talked about the general possibility of harm from vaccines and did not provide actual evidence of a risk to the child from vaccines.
In spite of opportunities to provide evidence that the child would be harmed, Lori Matheson did not provide the court testimony from a qualified immunologist or physician on the actual risk to the child.
Religious exemption claim
On religion, the court of appeal pointed out that the question is not whether Lori Matheson could get the child a religious exemption from school, but what is in the child’s best interests if the parents disagree. The father does not share the mother’s religious objections to vaccines, and since they disagree, the judge had to decide.
The judge gave Lori Matheson a chance to explain her religious beliefs, and addressed them in her ruling. But the judge ended up deciding that the mother’s religious beliefs did not outweigh the other factors that made vaccinating in the child’s best interests and ordered the child vaccinated.
Testimony of Toni Bark
In a final point related to vaccines, the appellate court addressed whether the trial court erred in limiting the scope of the testimony of Dr. Toni Bark to her general experience as a physician. Dr. Bark wanted to be certified as an expert in adversomics, which she claimed was “a field of medicine in which “people . . . study vaccine injury and write about vaccine injury[.]”
That’s not quite how Dr. Poland defines the term – in an article on the topic he describes the field as “…the study of vaccine adverse reactions using immunogenomics and systems biology approaches” (Dr. Bark does not have credentials in either field, to my knowledge).
The court was provided a description of Dr. Bark credentials, some of which are clearly legitimate and impressive (a degree in medicine, “running a pediatric emergency room and serving as an attending physician in a neonatal intensive care unit,”) and some of which are more dubious (“vice-president of the American Institute of Homeopathy, and is also a member of Physicians for Informed Consent”).
Then the court described Dr. Bark’s publication record. The court explained:
Dr. Bark testified that she contributed to a chapter in a book written by a law professor at New York University School of Law, Mary Holland, entitled Policy Without Reason, which addresses the flu shot requirement for healthcare workers.
Dr. Bark has also coproduced a film, Bought, which addresses corruption in regulatory agencies, and she has been interviewed for a film on genetically modified organisms, as well as one addressing vaccine conflict-of-interest issues.
Dr. Bark also collaborated with other medical professionals on a paper addressing the review data of Merck, a pharmaceutical company, for the drug Gardasil, its death rates, and its “systemic autoimmune rates.
However, Dr. Bark conceded that the paper was not listed on her curriculum vitae (CV). Dr. Bark had lectured on unspecified topics at two different conferences on immunology in the spring of 2017, one in Spokane, Washington, and the other at an unspecified location in Ohio. Dr. Bark had also appeared before various state senate health committees regarding pending legislation seeking to reduce exemptions to vaccine requirements.
Note that none of these is a scientific publication that could support a claim of expertise related to vaccines. The mentioned collaboration “with medical professionals” is, in fact, a letter to the editor criticizing an editorial, not a substantive article.
Further, several other authors are well-known anti-vaccine personalities with a history that does not inspire confidence. Drs. Shaw and Tomljenovic, who have a history of multiple retracted papers, and Dr. Judy Wilyman from Australia, who has a Ph.D. in social science-based on a highly problematic and inaccurate set of claims about vaccines, who has since been serving as a paid expert witness in anti-vaccine cases, in spite of her lack of scientific credentials (I am not familiar with Dr. Eva Vanamee).
This letter does not establish expertise. Unsurprisingly, the court of appeals concluded Dr. Toni Bark did not show expertise in the area.
The court of appeals said:
…on the basis of a close review of Dr. Bark’s testimony during the evidentiary hearing before the trial court, as well as her CV, we are unable to discern exactly what comprises the specialty of adversomics, and what specialized knowledge Dr. Bark could offer the trier of fact in these proceedings.
The trial court refused to hold a hearing to determine whether Dr. Bark could reliably and validly speak to the scientific issue at hand, under the governing Daubert standard, and the court of appeals found no error in that. The court of appeals said:
…the information presented to the court did not demonstrate that a Daubert hearing to consider the factors set forth in that case was even warranted. In other words, noting the dearth of supporting literature on the topic of adversomics that plaintiff presented and the lack of any indication in Dr. Bark’s CV, or in her evidentiary hearing testimony, that Dr. Bark had worked extensively in this area, the trial court correctly surmised that plaintiff’s attempt “to simply point to an expert’s experience and background to argue that [Dr. Bark’s] opinion is reliable” was not enough to meet the requirements…
I am aware that Dr. Bark is currently battling cancer, and is no doubt suffering, and is unlikely to serve again as an expert witness any time soon. I wish Dr. Bark success in her battle with cancer and wish she did not have to face this.
I considered whether to address this at all, in light of that, but aside from the fact that it is one of the issues of the decision, I think the problems with Dr. Bark’s testimony are important to highlight both because this was not the only case she testified in – and the lack of expertise may be important to other cases where she testified against providing children vaccines to protect them from disease – and because it shows a deeper problem in the system, where anti-vaccine people with marginal credentials can serve as experts.
Toni Bark testifying in the original trial. Credit – Oakland Press.
We have here someone with no relevant scientific credentials. She was a practicing physician, but there is no indication of conventional practice since 1993. She has no scientific publication record to speak of.
And yet, she is brought to challenge the scientific recommendations and views of the most important expert agencies (CDC) and independent scientific bodies in the United States. And sometimes, her views carry weight.
Letting her serve as an expert at all is problematic, and her opinion should not be given much weight. Further, the fact that she is routinely used by parents who have been scared of vaccines speaks to the paucity of real expertise in the movement.
Future experts brought by such parents are not likely to have stronger credentials, simply because there is very little serious expertise serving the anti-vaccine movement – (with rare and problematic exceptions). And some of them may still be allowed to testify as experts, and may even carry weight. It is a concern.
In short, the child in question here will now be vaccinated. The court of appeals did remand the case to the trial court to update which vaccines the child is due for now, but once that’s set, we can hope the child will be appropriately protected from disease.
Update 20 February 2020
After multiple delays, Mr. Schmitt, the young child’s father, received a final order from the court setting out his daughter’s vaccination schedule, and the young girl received her first round of vaccines, starting her on track to be fully protected from preventable diseases. Apparently, she was very brave, and all went smoothly.
Here are good thoughts for the family.
In the meantime, the mother’s attorneys filed an appeal with the Supreme Court, but that did not stay the proceeding, and reading the appeal does not suggest any important legal questions that would lead the Supreme Court to decide to step into a fact-heavy family dispute.
We wish the young girl and her family well as she goes forward.
Update 9 March 2020
On March 6, 2020, the Supreme Court of Michigan decided not to hear the appeal in the Matheson case and not to stay the decision. The case is now ended.
The Court said:
On order of the Court, the motion for leave to file a brief amicus curiae is GRANTED. The emergency motion is GRANTED in part and DENIED in part. The request for immediate consideration is GRANTED. The request to stay trial court proceedings is DENIED. The application for leave to appeal the November 21, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
The anti-vaccine organization, Physicians for Informed Consent, filed an amici curiae request to file an amicus brief. But since the case is not being heard further, granting the request would mean little.
In short, the father, Mr. Schmitt, won the case to continue vaccinating their daughter.
Notes
This article was first published in November 2019. It has been updated.
This article was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
The full decision, shared with the father’s permission, can be found here (PDF).
Matheson v. Schmitt 2019.11.21 COA Opinion
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
