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AB2098

Lawsuit against California AB2098, which allows sanctions of doctors who pass false information

This article about a lawsuit against California’s new law, AB2098, 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 about vaccination’s social and legal policies in law journals. 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 diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.

On September 30, 2022, California’s Governor Gavin Newsom signed into law AB2098, a bill that tells the medical board that misinformation and disinformation given to a patient as treatment or advice is “unprofessional conduct” worthy of sanction.

As a reminder, misinformation about COVID-19 is a real problem in the pandemic, leading to low vaccination rates that increased deaths and harm, and people using fake treatments against COVID-19.

On October 4, 2022, the first lawsuit against AB2098 was filed, brought in the name of two doctors with a history of COVID-19 misinformation – including promoting unsupported treatment like ivermectin and hydroxychloroquine and deterring people from vaccinating. The doctors are represented by attorneys from the conservative organization Liberty Justice Center. 

Although there are some doubts and uncertainties, the law should probably survive judicial review – and these doctors are likely typical of the kind of misinformer that made the law needed, and several of the claims they make are demonstrably untrue, which works in support of the law. 

Read More »Lawsuit against California AB2098, which allows sanctions of doctors who pass false information
Norwegian Cruise Lines vaccine

Norwegian Cruise Lines vaccine passports – judge prevents Florida from blocking it

This article about Norwegian Cruise Lines vaccine passports in Florida 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. She is also a member of the Vaccines Working Group on Ethics and Policy.

On July 13, 2021, Norwegian Cruise Lines Holdings LTD. (NCLH) sued Scott Rivkees, State Surgeon General and Head of the Florida Department of Health, challenging a Florida law that bans businesses from requiring vaccine passports. The lawsuit is in a very early stage but is well written and argued. Several of the arguments are specific to the cruise industry, but at least one would apply to any business. 

Read More »Norwegian Cruise Lines vaccine passports – judge prevents Florida from blocking it
Facebook mass banning

Facebook mass banning – reasonable response to anti-vaccine attacks

This article about Facebook mass banning of individuals who engage in anti-vaccine attacks on Facebook 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, Prof. 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.

This article will discuss the tactics of the anti-vaccine activists and how we can respond to it, including Facebook mass banning.
Read More »Facebook mass banning – reasonable response to anti-vaccine attacks

public health and vaccines

Public health and vaccines commentaries – employment repercussions

When employees speak up on matters of public health and vaccines in their free time, those who do not like the speech may retaliate by complaining to their employers, who may be tempted – or feel forced – to act against the employee. But employers should not, and some types of employers – public employers – are likely barred from doing so.

This post considers mostly employees in public institutions – department of health, teaching hospitals, or universities – because these employees have legal protection against sanctions – an employer is likely legally prohibited from acting against them because of speech on matters of public health and vaccines in their free time.

However, the points made about defamation and the policy considerations also apply to private employers, those who can fire employees at will, at least when the employees provide mostly accurate, fact-based information.

These issues can come up in a variety of contexts, some of which the employer may appreciate more than others. One situation is when an employee working for a public institution spends part of his personal time commenting on public health and vaccines issues and informing the public through a personal blog, on which his position is mentioned, or by commenting on social media, Facebook or Twitter.

The employee provides information, corrects misconceptions, and criticizes those offering bad advice or factually inaccurate information, sometimes with strong language. A person so criticized contacts the public institution and threatens to sue for defamation if the blogging does not stop and the statements are not retracted, or if the employee is not otherwise dealt with.

Or, for example, an employee makes a joke about a public health issue – in good or bad taste – in her personal time. People offended complain to the employer, either just criticizing the employee or threatening legal action. In both cases, employers should not take measures against the employee.

First, in most circumstances, there would almost certainly be no defamation case here. Second, limits created by the First Amendment on the ability of public employers (though not private ones) to fire an employee for their speech likely apply here. Finally, there are public benefits from allowing the employee to speak in this manner.Read More »Public health and vaccines commentaries – employment repercussions

religious exemptions

Court upholds policy denying religious exemptions to vaccines

In 2014, the Federal District Court of the Eastern District of New York rejected a claim brought by three plaintiff families against various aspects of New York’s school immunization requirements. The decision did not include any legal innovation: it was completely based on well-established precedent that schools can deny religious exemptions. But it offers a chance to reflect on what that precedent is, why it is in place, and what it means for us.

The take-home point? Our immunization jurisprudence gives states substantial leeway to protect the public health via vaccination requirements, specifically, in this context, by allowing states to decide whether, and under what conditions, to exempt students from school immunization requirements. But states have to actually use that power to achieve anything. By leaving the floor to the passionate, if passionately wrong, anti-vaccine minority, we are allowing them to undermine the right of the rest of us to be free from preventable diseases.

In other words, those who vaccinate need to speak up and make it clear to their elected representatives that they want state law to protect their children – and the community – against outbreaks of preventable diseases. The laws will not enact themselves, and our representatives need to know the public wants this protection, that the public does not want high rates of measles cases or other diseases.

Just like the diseases, anti-vaccine legislative successes, such as maintaining religious exemptions, are preventable. And just like the diseases, doing nothing won’t prevent them. Read More »Court upholds policy denying religious exemptions to vaccines

vaxxed misinformation

Vaxxed misinformation – legal remedies for those harmed?

The documentary Vaxxed uses misrepresentation to scare people from vaccinating and protecting their kids from disease. For example, it strongly suggests that MMR causes autism, and doesn’t mention that studies from all around the world show otherwise. Scientific research solidly refutes any link between vaccines and autism. I think it is time to examine if there are any legal remedies for those harmed by Vaxxed misinformation.

The documentary claims that there is a conspiracy by the CDC to hide the link between MMR and autism, even though the documents supposed to support that conspiracy do not support such accusations. In spite of the fact that even if the CDC wanted to hide such a link, it couldn’t control studies done in other countries looking at the issue (and finding no link). It makes untrue statements about vaccine testing, like falsely claiming that vaccines are not tested in combination.

In addition, in several cities, the Vaxxed team – discredited scientist Andrew Wakefield, his collaborator Polly Tommey, and producer Del Bigtree, and occasionally others – followed certain screenings with a question and answer session. In those sessions they made false claims that could mislead parents away from protecting their children by vaccinating.

The Vaxxed team claimed that preventable diseases were not prevented by vaccines. Among other things they claimed that vaccines were both ineffective and unsafe, ignoring abundant research showing the opposite: modern vaccines are extremely safe and effective.

Del Bigtree falsely described the hepatitis B vaccine – that protects against a virus that can cause liver disease and cancer – as “injecting a sexually transmitted disease”, potentially scaring parents off protecting their children against this dangerous infection. Finally, the Vaxxed team warned listeners against seeing pediatricians, because they can’t be trusted (see here and here for more of their misrepresentations and misinformation).

If a viewer watches Vaxxed and listens to the team’s advice, decides not to vaccinate based on this misleading information, and their child gets a preventable disease and is harmed by it, can they sue for money damages in torts?

What if their unvaccinated child infected a third party who was harmed? Read More »Vaxxed misinformation – legal remedies for those harmed?

California SB277 vaccination law

California SB277 vaccination law – litigation update 2

Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court. 

Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current. 

Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information. 

Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Read More »California SB277 vaccination law – litigation update 2

California SB277 vaccination law

California SB277 vaccination law – litigation update 1

Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court. 

Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current. 

Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information. 

Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Read More »California SB277 vaccination law – litigation update 1

California SB277 lawsuit

California SB277 lawsuit – updated, but still baseless

Note: this article is an update to the baseless California SB277 lawsuit that was written about previously published on 1 May 2016. This article adds substantial new information on some of the activities surrounding the lawsuit. Stay tuned, as this situation is fluid and new information will be posted as it becomes clear. Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.

A California SB277 lawsuit was filed by Attorney T. Matthew Phillips in the Los Angeles County Superior Court, Tamara Buck et al v State of California (pdf), or “Buck.” To remind everyone, SB277 is the California law that removed the personal belief exemption to school immunization requirements.

Although the lawsuit commenced for the plaintiffs is in theory, challenging the new statute, the complaint posted online is poorly drafted. Much of the complaint, especially the first section, does not meet the basic pleading standard in California, which requires “a statement of the facts constituting the cause of action, in ordinary and concise language. “ (CCP § 425.10)

As phrased, the complaint does not make valid legal arguments against the new statute. The complaint demands trial by jury when it is elementary law that the relief requested in the complaint would not entitle the plaintiffs to anything but a trial before a judge. The complaint fails to meet the requirement that the attorney’s signature constitutes a certification that “[t]he claims … are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” (CCP § 128.7(b)(2).)

The complaint also contains gross factual errors, which may violate CCP § 128.7(b)(3), though those errors alone, at this stage in the proceedings, probably would not permanently damn the suit in state law at this initial stage. In assessing initial challenges to a complaint, state courts must assume that the factual claims in the complaint are true (not legal conclusions or polemical oratory), even when they are as far-fetched as the ones in this suit.

If the attorneys for the State of California were to demurrer to this complaint (file a motion requesting the court to dismiss the complaint as lacking sufficient grounds), the plaintiffs would probably be given an opportunity to correct the errors. For that reason, and since this post is already too long, I didn’t provide a detailed critique of the complaint’s shortcomings as a legal document.

Frankly, the people who donated money to this suit deserved better. The opposition to SB 277 consists of a minute fraction of California’s citizens. The opposition is misguided, but most of them are sincere in their beliefs and very, very passionate and dedicated to their cause.  Many of them clearly fear vaccines and the new law. I hope the courts will protect the community and children’s health by upholding SB 277 (and to remind everyone, the vaccine-denied children of SB 277 opponents need SB277 as well – they depend on herd immunity to protect them from their parents’ error). But when opponents put their trust in a lawyer, they deserve to have their interests competently and professionally represented. This complaint does not do that.

Of course, the complainants chose the lawyer, and they may have had input into the content of the complaint. They are responsible for that choice. But it is also the lawyer’s responsibility to advise them against making serious mistakes.

It is hard to see much indication that Mr. Phillips gave his clients such advice (unless, of course, advice was offered and rejected). Frankly, the tone of the complaint and the discussion on the complainants’ Facebook page suggests that the content of the complaint was driven by Mr. Phillips or at least supported by him.Read More »California SB277 lawsuit – updated, but still baseless

SB 277 lawsuit – baseless anti-vaccine complaints

There have been several updates to the lawsuit, and subsequently to this article. This article has been republished with the updates. Comments for this article have been closed, but you can comment at the updated version.

An anti-SB 277 lawsuit, Tamara Buck v State of California (hereinafter known as “Buck”) was filed by Attorney T. Matthew Phillips in the Los Angeles County Superior Court. To remind everyone, SB277 is the California law that removed the personal belief exemption to school immunization requirements.

Although the lawsuit commenced for the plaintiffs is in theory, challenging the new statute, the complaint posted online is poorly drafted. Much of the complaint, especially the first section, does not meet the basic pleading standard in California, which requires “a statement of the facts constituting the cause of action, in ordinary and concise language. “ (CCP § 425.10)

As phrased, the complaint does not make valid legal arguments against the new statute. The complaint demands trial by jury when it is elementary law that the relief requested in the complaint would not entitle the plaintiffs to anything but a trial before a judge. The complaint fails to meet the requirement that the attorney’s signature constitutes a certification that “[t]he claims … are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” (CCP § 128.7(b)(2).)

The complaint also contains gross factual errors, which may violate CCP § 128.7(b)(3), though those errors alone, at this stage in the proceedings, probably would not permanently damn the suit in state law at this initial stage. In assessing initial challenges to a complaint, state courts must assume that the factual claims in the complaint are true (not legal conclusions or polemical oratory), even when they are as far-fetched as the ones in this suit.

If the attorneys for the State of California were to demurrer to this complaint (file a motion requesting the court to dismiss the complaint as lacking sufficient grounds), the plaintiffs would probably be given an opportunity to correct the errors. For that reason, and since this post is already too long, I didn’t provide a detailed critique of the complaint’s shortcomings as a legal document.

Frankly, the people who donated money to this suit deserved better. The opposition to SB 277 consists of a minute fraction of California’s citizens. The opposition is misguided, but most of them are sincere in their beliefs and very, very passionate and dedicated to their cause.  Many of them clearly fear vaccines and the new law. I hope the courts will protect the community and children’s health by upholding SB 277 (and to remind everyone, the vaccine-denied children of SB 277 opponents need SB277 as well – they depend on herd immunity to protect them from their parents’ error). But when opponents put their trust in a lawyer, they deserve to have their interests competently and professionally represented. This complaint does not do that.

Of course, the complainants chose the lawyer, and they may have had input into the content of the complaint. They are responsible for that choice. But it is also the lawyer’s responsibility to advise them against making serious mistakes.

It is hard to see much indication that Mr. Phillips gave his clients such advice (unless, of course, advice was offered and rejected). Frankly, the tone of the complaint and the discussion on the complainants’ Facebook page suggests that the content of the complaint was driven by Mr. Phillips or at least supported by him.Read More »SB 277 lawsuit – baseless anti-vaccine complaints