Michigan court supports vaccines – finds in favor of child’s health

On 17 December 2018, a Michigan family law court hearing a case in which divorced parents disagreed on vaccines, decided that the child should be vaccinated. In that decision, the Michigan court followed in the footsteps of most courts deciding such issues and upheld both the previous agreements between the parents and the child’s best interest. 

The case

I have previously written about the Matheson case in October 2017. I will not be sharing the full decision of the Michigan court. It involves issues beyond the vaccine debate and many details on the child and the family that should not, in my view, be public. They deserve their privacy. I will, however, try to give the story accurately and summarize the decision.

The story is straightforward. A divorced couple had a number of disagreements, and one of them was whether the child should be vaccinated. In this case, the dispute between the parents, according to the decision, started even before the child was born, and covered many areas. When the child was about 19 months, the father filed a “motion for make-up parenting time and vaccination” for the child. The mother objected to everything, including vaccinating the child.

We would likely never have known of this, if another case before the same court, also of an anti-vaccine mother fighting a father over vaccinating a child had not made headlines when that mother was sent to jail for a short time for contempt of court, after she refused to follow judicial decisions and agreements on a number of issues, including vaccinating a child.

That drew attention to the family court, and somehow, that attention was extended to the Matheson case, and the anti-vaccine movement, apparently, stepped in to shore up the mother’s efforts to fight against vaccinating her child. 

Among other things, the local anti-vaccine organization arranged protests next to the courthouse, made short videos about it and mobilized to help the mother in her case. Apparently, either pro-bono or through financing by unknown anti-vaccine beneficiaries, the anti-vaccine movement brought in attorney Aaron Siri from New York to shore up the mother’s local lawyer, whose representation left something to be desired.

Siri has filed or litigated several cases fighting vaccines requirements in New York, including a case against a daycare influenza mandate which succeeded in the two lower courts before failing in the highest court, the court of appeals, and a case against a rule that allows teens diagnosed with STDs to get HPV vaccines without parental consent. He is clearly competent and given these cases and his performance in the case at hand, he can likely be fairly described as at least sympathetic to anti-vaccine arguments. The involvement of a corporate lawyer from New York is an indication of how seriously anti-vaccine groups took this case, which was, in essence, a private dispute. The main benefit to them appears to be a number of YouTube videos they created around this case, something that will not benefit the family in question. In essence, this case was used by anti-vaccine groups as a tool to make YouTubes. 

Mr. Siri took part in the cross-examination of the father’s expert witness, Dr. Teresa Holtrop, and took Dr. Holtrop through many anti-vaccine tropes that Dr. Holtrop – clearly not used to interacting with anti-vaccine activists – was not familiar with (also see).

After a long wait, the Judge handed down her decision on 17 December 2018. The decision addresses three issues, and this post will only cover the vaccine issues.

The decision on vaccines

The Michigan court decision starts by setting out the evidence (I am going to focus only on the evidence related to vaccines). The mother’s case appeared to be based on genetic testing by 23andMe that she wants to be analyzed by a geneticist, because “she and other members of the family have significant autoimmune disorders.” She also thinks that means that vaccine ingredients may lead to injury to the young child. Apparently, the issues are that the child’s maternal grandmother suffers from “rheumatoid arthritis, asthma, and low platelets”, the great-grandmother was diagnosed with lupus, psoriasis, and colitis, and the mother’s sister has rheumatoid arthritis. None of these are actually contraindications for vaccines. Further, the genetic test of 23andme is not aimed at assessing vaccines safety for an individual, and on several of the issues often raised by anti-vaccine activists the company itself warned against misuse. Note that these kits have limited value, and come with real concerns.

The mother was given time to get a geneticist’s opinion but did not. 

From the mother’s testimony, it seems that reading online made her afraid of vaccine ingredients, a common misconception among anti-vaccine parents. Another argument the mother raised is that vaccines grown on cell lines contradict her religious beliefs. Though there may be people with sincere religious opposition on this ground, in this case, the argument is suspect, given the emphasis on fear of ingredients and the mother’s resorting to 23andMe testing, and it is not generally considered a barrier by religions. At any rate, even religiously-based decisions for a child are a matter for both parents to decide on. And the father clearly disagrees on this. 

Part of the disagreement was on interpreting the terms of the custody agreement. The agreement stated that the mother “will be the primary parent responsible for [child]’s ordinary healthcare needs,” though legal custody is shared and father is to be notified about medical appointments and can participate – and has been participating. The mother interpreted this to mean she has the right to make decisions on vaccines; the judge pointed out that’s an incorrect interpretation, and both parents share decision-making on health issues, though the mom is responsible for providing the child’s health needs. Further, the initial arbitration award by the parents said that the mother “is willing to accept some immunizations if [child]’s treating physician deem[s] them appropriate.” 

The mom also claimed she is “educated” on vaccine safety, though her statements about ingredients suggest her education has drawn on unreliable sources, and she is misled by anti-vaccine misconceptions. The mother “has not consulted with a specialist to discuss the benefits and/or risks associated with vaccinating” the child. 

To support her opposition to vaccines, besides her own testimony, the mother provided:

  1. Testimony from Dr. Toni Bark – after an embarrassing effort to qualify Dr. Bark as an expert in vaccine injury, in which she mangled the name of her alleged field of expertise and did not remember her only peer-reviewed publication (a letter to the editor in which she was middle author), she was allowed to testify only as “an expert in general medicine and surgery” and on her own experiences. Dr. Bark, apparently, spoke about inserts and a need to do a detailed medical history before vaccinating. She also claimed that the rubella proportion of MMR is linked to chronic arthritis, though the CDC notes arthritis from MMR is generally short-lived,  and very rare in children (whereas measles is coming back, and can be fatal or disabling). I would add that this paragraph in the decision suggests to me that Dr. Bark tells people who want to vaccinate that the list of reported adverse events in the insert is in fact causally related to vaccines, which is not true. In fact, the Vaccine Information Statement she criticizes is a much better-informed consent document. 

Michigan court

  1. The mother also brought in Dr. Alvin Moss, an ethicist turned anti-vaccine activist from West Virginia, as an expert in conflicts of interests. He also, apparently, did not like the Vaccine Information Statement – again, incorrectly. Dr. Moss, apparently, claimed that pharmaceutical companies pay millions to CDC and professional organizations like AAP, suggesting that support for vaccines is the result of such payment (rather than the many studies that show it’s the right thing to do). Yes, he argued a conspiracy theory, ignoring the wide support for vaccines worldwide, and the need for many thousands to be part of this conspiracy, making it unrealistic. After all, practically all the governments in the world support vaccines. 
  1. The mother tried to bring in Dr. J. Bart Classen, who has tried since the 1990s to claim that vaccines cause diabetes (and has more recently shifted to autism), and whose work is regarded as problematic. After learning of the criticism and learning that the Vaccine Court has repeatedly found Dr. Classen’s theories unreliable, the court refused to accept Classen as an expert in immunology. 
  1. The mother’s – Ms. Matheson’s – relatives testified about their personal medical problems.
  1. The child’s pediatrician, Dr. Marcus, testified based on materials the mother gave him that were “seemingly reliable” he agrees that the child may be predisposed to rheumatoid arthritis if vaccinated. He could not point to any medical research he relied on. He said he prefers to “spread out the administration of vaccination because it is typically a traumatic and painful experience for his patients”, but recommended the child get DTaP, Hib, polio, HepA, varicella, rotavirus and Prevnar vaccines (which are most, though not all, the vaccines recommended for her age. Notably missing are MMR, likely because of the concern about arthritis discussed above, and hepatitis B). While to some degree the doctor accepted the mother concerns, he clearly wanted the child mostly vaccinated.  

The father testified that during arbitration the mother and he agreed that the child will receive whichever vaccine Dr. Marcus recommended. He pointed out that the mother signed the exemption from school without his knowledge, and did the genetic testing without his knowledge. He remembered that Dr. Marcus strongly advised the mother to vaccinate in 2015, and addressed her objections. Expert organizations support vaccines, and there is no medical reason not to vaccinate the child. Their church does not oppose vaccines, and in fact, requires people to get additional vaccines to go on mission trips. 

The father brought as a witness Dr. Teresa Holtrop, president of Michigan’s chapter of the AAP. She talked about outbreaks in Michigan, including hepatitis A and whooping cough. She talked about preventable diseases. She said (correctly) most vaccines side effects are temporary and not severe. She recommended the child be vaccinated.

Then she was subjected to cross-examination by Siri and acknowledged that there are things she does not know (something the anti-vaccine groups found very meaningful, apparently, though honest experts should acknowledge the limits of their knowledge). She agreed the diseases were rare in Michigan and disagreed that the child is at increased risk of autoimmune diseases.

The following 10 pages are the court’s decision about other issues. I will respect the family’s privacy on that. The vaccine issue is picked up again on page 32.

The court begins by setting the standard. Because the decision to vaccinate does not, under precedent (and reality), affect the custodial environment of the kids (their basic custody reality – who they turn to for supplying their needs and giving guidance and discipline), the party requesting vaccines only has to show by a preponderance of evidence that the request is in the child’s best interest – that it’s more than 50% likely it is. In this case, both parents are loving, caring parents to the child. The court found the child should be vaccinated based on Dr. Marcus’ and Dr. Holtrop’s testimony, the father’s testimony about the agreement to give vaccines Dr. Marcus recommends, and the lack of concrete evidence of the child’s increased susceptibility to being harmed by vaccines. 

The court found Dr. Moss’s testimony on conflicts of interests “compelling”, but the evidence by the mother “did not establish that [the child] will be harmed by any particular vaccination and/or that any particular vaccination is otherwise contrary to [the child’s] best interests.”

The father provided evidence that professional bodies recommend that healthy children like the child be vaccinated, and the mother did not substantiate her vaccine-related concerns. She did not, for example, provide expert analysis of the 23andMe testing even though the court gave her time to do so. The “mother also failed to present any admissible and/or credible evidence from an immunologist or other specialized physician suggesting that [the child] would, in fact, be predisposed to injury and/or death if she were to receive any routine vaccination in accordance with the State’s recommendations.”

The court found that it’s in the child’s best interest to be vaccinated, and ordered that she receive the “beginning phase of any and all State-recommended vaccinations within thirty days..”

In this, the court has decided in favor of the child and public health. And followed in the footsteps of most courts addressing similar issues: since the risks of vaccines are dramatically smaller than the risks of not vaccinating, most family courts do – and should – find vaccinating to be in the child’s best interests. 

What next? 

Well, there are two options. The mother can try to appeal – though fighting such a carefully reasoned decision, on the evidence submitted, will likely be hard and expensive (of course, the anti-vaccine movement could continue to support the case, including financially). Or she can accept the verdict and allow the child vaccinated.

The mother appeared to have been thoroughly frightened about vaccines by anti-vaccine claims, so she may continue to fight against vaccinating. For the child’s sake, however, I hope that she will not prolong the process, and will allow the child to be protected from disease. I also hope the family will receive some privacy – the anti-vaccine movement used the case to create videos, and is likely not what the child or the family needs. 

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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 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.