Last updated on August 24th, 2019 at 04:33 pm
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 (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations.
Professor Reiss also 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.
In Kagen v. Kagen (pdf), a Michigan Court of Appeals sided with a father who wanted his children vaccinated and overruled the opposition of the mother, ordering the children to be vaccinated on schedule. The Court found that vaccinating was in the best interest of the children. The Court also discussed which type of evidence can be used in Michigan to support claims about vaccines’ safety or lack thereof, highlighting that anti-vaccine sources are probably not going to cut it.
Background of the case
Richard and Lenore Kagen divorced in 2012. Mrs. Kagen stopped vaccinating the girls when they were 3 and 5 – apparently at least five years before the divorce (Kagen v. Kagen, Unpublished, 2014 WL 7217819). The divorce judgment gave both parents joined custody, and “neither party was permitted to make major medical decisions relating to the children without consulting the other” (id). Mrs. Kagen claimed her husband knew she stopped vaccinating the girls, but he denied it.
In April 2013 Mr. Kagen got four vaccines for their eldest daughter (the cases do not mention which vaccines). Mrs. Kagen filed with the circuit court, seeking to prevent Mr. Kagen from vaccinating the children further. Twice, in two separate decisions, the circuit court found in Mrs. Kagen’s favor. Twice the court of appeals reversed the decision, and in the second case – the one discussed here – ordered the children immunized unless a medical contraindication recognized by the CDC is found.
The Court opened by examining a range of evidentiary questions and then discussed whether vaccinating was in the best interest of the child. I am going to discuss the issues in reverse order, since the more important finding is the one regarding the child’s best interests.
The best interests of the child – vaccines and parental rights
The Court’s finding on this deserves highlighting. Mrs. Kagen’s objection to vaccinating the children rested on vaccine risks. The Court said:
“These documents, while warning readers of the potential risks associated with vaccinations, reveal that severe and even moderate risks are rare and far outweighed by vaccine benefits.
A review of the parties’ evidence clearly supports that vaccination of children is in their best interests, unless the child’s medical condition contraindicates vaccination. The reports generated after public-agency research and investigation, including those presented by Mrs. Kagen, establish that the benefits associated with vaccination far outweigh any dangers.” (Editor’s note–emphasis added.)
This is a clear, powerful, and correct statement. The court acknowledges vaccines risks – but highlights how small they are. Nothing is without risk. We don’t live in that kind of world. You can fall down the stairs or in the bathtub, or get food poisoning from spinach. But the Court realized, and ruled, that leaving children subject to the much larger risk of preventable diseases because of fear of the very rare risk of serious vaccine injury is against the child’s best interest, and an error.
It should be noted that not all courts went that way. In Grzyb v. Grzyb, 79 Va. Cir. 93 (Va.Cir.Ct. 2009), the court allowed the mother to refuse vaccination, finding that she made most medical decisions for the children. As a scholar pointed out, that’s a problematic decision, exactly for the reasons the Michigan Court of Appeals spelled out so clearly.
Evidentiary issues
The first part of the opinion addressed the evidence provided by Mrs. Kagen for her claims about vaccine risks, and which of it was admissible. The starting point is that generally hearsay is not allowed as evidence. That includes reports when the writer is not available to be cross-examined. But there are exceptions to the rule. Relevant to this case was an exception under Michigan law for evidence that has “circumstantial guarantees of trustworthiness.” In an earlier case, People v. Katt, 468 Mich. 272, 290; 662 NW2d 12 (2003), Michigan’s Supreme Court determined the conditions under which such statements will be admitted:
[infobox icon=”quote-left”]To be admitted under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.[/infobox]“To be admitted under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.”
In the first Kagen case, the Court of Appeals found that evidence submitted by Mr. Kagen – reports from the Centers for Disease Control and Prevention, National Institute of Health, Food and Drug Administration, and Michigan Department of Community Health – met this standard, were trustworthy and admissible. In the second case, it examined evidence Mrs. Kagen submitted in rebuttal, as she was entitled to, and found that aside from some government reports, it was inadmissible. What did Mrs. Kagen submit, and why was it rejected?
- A list of vaccine ingredients from Wikipedia was rejected because anyone can edit Wikipedia at any time – and the court determined that a source that can be changed by anyone does not have a guarantee of trustworthiness.
- An article from Dr. Brownstein’s Holistic Medicine Blog, titled “Should Mickey and Minnie Mouse be Vaccinated?” was rejected on several grounds –
[infobox icon=”quote-left”]-The article was not related to any immunology or vaccine study. -The nature of blogs – which tend to reflect personal opinions and are not sources of data to rely upon (Sorry, Skeptical Raptor, Editor’s note – I’m OK with that). -The lack of anything in the content suggesting trustworthiness – the court mentioned that the article said CDC is committing fraud, mentions deaths from diseases from another online site, and mentioning a study that was not fully referenced. -In other words, the fact that this was a blog is part of the problem; the sources the blog used are the other part. Will a more reliable blog, one that uses scientific sources, be allowed? The court did not address this question, since it was not before it.[/infobox]
- A Snopes article – it’s unclear why Mrs. Kagen brought that article as part of her evidence, because it actually refutes claims about Gardasil’s harms (Editor’s note–ironically, that Snopes article cites an article here as one of its sources). Nevertheless, the Court rejected it since it could not ascertain it was written by someone with medical knowledge and could not verify its trustworthiness.
- An article from Health Impact News titled “Moulden—A Search for Life and Truth.” The Court found the article completely unreliable. It said:
[infobox icon=”quote-left”]-“the article reads like a tabloid story of the late doctor’s persecution at the hands of vaccine advocates. The article suggests that the pharmaceutical industry assassinated the doctor and thereafter “eras[ed] most all of the information that was once available on the internet” about the doctor’s teachings. Id. The writer even challenges the “germ model of disease.” Id. -As noted by Mr. Kagen’s counsel: “[T]here’s no studies — there’s no scientific studies; it’s all conjecture, it’s all based upon speculation, it’s based upon rumor, it’s based upon fear mongering, it’s based on their wanting to sell products to the public.” -The Court said: “this web article was clearly inadmissible hearsay. The article demonstrates no “circumstantial guarantees of trustworthiness” as required by Katt ..”[/infobox]
- An article by Dr. Russell L. Blaylock on the dangers of vaccines, published via Mercola.com. The court found this, too, unreliable. It said:
[infobox icon=”quote-left”]Dr. Blaylock’s website references neither scientific research nor peer-reviewed medical literature. Rather, the information contained in the article advances Dr. Blaylock’s personal opinion that “the policy of giving numerous vaccinations to individuals, especially infants and small children, is shear [sic] idiocy.” The website bears none of the requisite indicia of trustworthiness set forth in Katt. Moreover, the record lacks any evidence that Dr. Blaylock’s credentials as a neurosurgeon would qualify him to render opinion testimony regarding the subjects of his website, including infectious diseases and immunology.” [/infobox]
This, too, was not acceptable.
- A document on HPV vaccines by an organization calling itself the World Association for Vaccine Education (WAVE). The court rejected this because there is nothing to indicate that WAVE is reliable, and it’s not affiliated with a government or public institution.
In short, the Court rejected Mrs. Kagen’s evidence because none of it met criteria of trustworthiness – highlighting that in the internet world, those who oppose vaccines may get their information from unreliable websites and the so-called alternative media. But if they want to make a case in a court of law, they need to actually use credible sources.
As mentioned above, the credible sources demonstrate that vaccinating is in the children’s best interest – because the very small risks of vaccinating are so outweighed by the risks of not vaccinating.
A hostile lower court
The impression this case gives is of a court of appeals correcting problematic statements by a lower court that was hostile to vaccinating. The lower court accepted the unreliable anti-vaccine sources that Mrs. Kagen submitted without even examining their reliability. It rejected the government reports Mr. Kagen submitted, in spite of the fact that they were prepared by experts and based on scientific knowledge. It did not consider best interests, according to the Courts of Appeals’ findings.
The message is two-fold: Some trial courts may, unfortunately, be sympathetic to claims not based on science against vaccines; but, on the other hand, the checks provided by courts of appeals may help counter that. Parents seeking to protect their children from disease should remember that there is a check on problematic lower courts, and immunization organizations should consider whether they can support and help such parents protect their children, and how to do so.
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.
