Vaxxed misinformation – legal remedies for those harmed?

vaxxed misinformation

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?  Continue reading “Vaxxed misinformation – legal remedies for those harmed?”

California SB277 vaccination law – litigation update 2

California SB277 vaccination law

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.
Continue reading “California SB277 vaccination law – litigation update 2”

California SB277 vaccination law – litigation update 1

California SB277 vaccination law

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.
Continue reading “California SB277 vaccination law – litigation update 1”

California SB277 lawsuit – updated, but still baseless

California SB277 lawsuit

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. Continue reading “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. Continue reading “SB 277 lawsuit – baseless anti-vaccine complaints”

Court decides parents’ refusing vaccinations – not “free exercise of religion”

The US District Court for the Northern District of Ohio has ruled (pdf)  that a parent’s refusing vaccinations for her children against diseases is not a “free exercise” of religion, and is tantamount to neglect.

In April 2010,  the Tuscarawas County (Ohio) Jobs and Family Services (TCJFS) took custody of the children of Charity and Brock Schenker as a result of a domestic violence matter between the parents. TCJFS determined that the children were “neglected and dependent” and worked out case plans for the parents which included psychiatric evaluations, drug testing and supervised visitation of their children. When TCJFS asked about the children’s immunizations, according to Secular News Daily, “Mrs. Schenker claimed she had religious objections to immunizations. The court informed her that the immunizations would be ordered.”

Continue reading “Court decides parents’ refusing vaccinations – not “free exercise of religion””

Court upholds policy denying religious exemption to vaccines

Last week 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 a religious exemption to vaccines. 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 are preventable. And just like the diseases, doing nothing won’t prevent them.  Continue reading “Court upholds policy denying religious exemption to vaccines”

Father sues New York to obtain religious vaccination exemption for son

vax-jesus-doctorAccording to the New York Daily News, a Staten Island father has sued the City and State of New York to block his four year old son from being tossed out of school because their parents refuse to vaccinate him:

A Staten Island father is suing the city and the state after his 4-year-old son was booted from pre-K class because of the parents’ objection to vaccines.

The father, identified only as P.R. in the lawsuit over the contentious issue, is a Catholic who had sought a religious exemption to the state law requiring that every child attending a public, private or parochial school must be immunized from 11 communicable diseases.

His son was removed from his public school classroom on Dec. 23 after city Department of Education officials rejected the father’s appeal of an earlier decision. The city concluded the paperwork he submitted “does not substantiate … that you hold genuine and sincere religious beliefs which are contrary to immunization,” according to the suit.

Last month, the city added a requirement that children under 5 who attend preschool or day care must get flu shots.

The boys’ parents filed an affidavit Monday stating they believe that “immunization demonstrates a great lack of faith in the gift of health and the promise of protection that we are given at birth and through baptism we put our child in the hands of the Lord … God wants us to put our faith for disease prevention in him exclusively. Continue reading “Father sues New York to obtain religious vaccination exemption for son”

Court decides parent’s refusal to vaccinate kids is not “free exercise of religion”

©friendlyatheist.com, 2012
©friendlyatheist.com, 2012

For New Year’s Day, I’m republishing the top 10 articles I wrote in 2013. Well, actually top 9, plus 1 from 2012 that just keeps going.

#9. This article was published on 13 May 2013, and has had over 5000 views. A Federal court decided that refusing to vaccinate one’s children is not a constitutionally protected right covered by the First Amendment. 

The US District Court for the Northern District of Ohio has ruled (pdf) that a parent’s refusal to vaccinate her children against diseases is not a “free exercise” of religion, and is tantamount to neglect.

 

In April 2010,  the Tuscarawas County (Ohio) Jobs and Family Services (TCJFS) took custody of the children of Charity and Brock Schenker as a result of a domestic violence matter between the parents. TCJFS determined that the children were “neglected and dependent” and worked out case plans for the parents which included psychiatric evaluations, drug testing and supervised visitation of their children. When TCJFS asked about the children’s immunizations, according to Secular News Daily, “Mrs. Schenker claimed she had religious objections to immunizations. The court informed her that the immunizations would be ordered.”

As a result of recommendations of court-ordered psychiatric evaluations and positive random drug tests, Mrs. Schenker (who subsequently divorced her husband) visitations were terminated, and TCJFS filed a motion for permanent custody of her children in August 2011. According to the Secular News Daily, “the county laid out as evidence a number of instances in which Schenker did not comply with orders, refused home inspections, and more. But Schenker sued with eight claims, including conspiracy claims and, most significantly, claims that her First Amendment right to free expression of religion was violated.” Continue reading “Court decides parent’s refusal to vaccinate kids is not “free exercise of religion””

Court says that fake religious vaccine exemptions are not protected by the First Amendment

In April, 2010, a Federal District Court in New York denied a mother’s bid for a religious exemption to New York state’s mandatory vaccination rules. According to the article in the New York Law Journal, “Martina Caviezel, a self-proclaimed pantheist, sought a preliminary injunction allowing her to enroll her 4-year-old daughter in a Great Neck, N.Y., pre-kindergarten without getting the shots the state says the child needs. Caviezel relied on Public Health Law §2164(9), which exempts children from the requirement whose parents or guardians “hold genuine and sincere religious beliefs which are contrary” to vaccination.”

Around September 2009, Caviezel submitted the New York exemption form to the school  requesting that her youngest child be exempt from the requirement that children be vaccinated against measles, mumps, rubella and other diseases. The school principal told her that her request would likely be denied. Caviezel  declined to meet with school superintendent to further discuss the exemption. She then sued after her request was denied, alleging civil rights violations. Continue reading “Court says that fake religious vaccine exemptions are not protected by the First Amendment”