Updates on

Ken Stoller's Lawsuit Not Dismissed yet, and that's obviously a good thing
Update posted by Rick Jaffe Esq On Sep 20

To recap what has happened (and it is complicated, so stay with me):

In early May, the San Francisco City Attorney served a subpoena on Ken Stoller, MD for the deidentified medical records of all of his patients throughout the state for whom he had written a vaccine medical exemption. The basis of the subpoena was a nuisance investigation. The nuisance being unvaccinated kids.

In early June, we filed a lawsuit against the City Attorney seeking to quash the subpoena, and also seeking a court order that children had a right to receive a medical vaccine exemption based on a different standard that the CDC contraindications.

In mid-July, we filed an amended complaint bringing in the Medical Board and the Department of Consumer Affairs, as defendants on our claim about this alternative medical vaccine exemption standard, and also complaining about the board's improper release of confidential information about the status of its investigation of Dr. Stoller.

At the end of July, the board started an administrative licensing proceeding against Dr. Stoller for writing 11 allegedly unjustified medical exemptions.

Based on the board's administrative action, it moved to dismiss our lawsuit based on the "failure to exhaust administrative remedies" doctrine. Under this doctrine, courts should not interfere with on-going administrative cases where administrative agencies have special expertise, yada, yada.

In latter part of August, we dismissed the City Attorney (and the City and County of San Francisco) from the case, and the City Attorney withdrew the subpoena against Dr. Stoller.

By late August, we started hearing about the utter chaos and illegal activities on the part of the medical board, and the department of public health and the schools. So, we prepared a Second Amended Complaint ("SAC").

We added as a plaintiff, the mother of one of Dr. Stoller's vaccine exempt patients, referenced in the board's administrative case against him. The child had also been denied entry into school despite a valid ME from Dr. Stoller. We also added the head of the Department of Public Health section after we found out that his department was receiving ME's in violation of state and federal school privacy laws and advising schools about the validity of exemptions. We also added a claim against the board based on a new intimidation tactic to scare families into waiving their rights to object to the board's attempt to obtain their children's medical records. We asked the court to consider our SAC via a motion to leave to file it, which motion will be heard in a few weeks.

Presumably to keep the pressure on us, the state did not agree to drop its motion to dismiss the first amended complaint, even though we were seeking permission to file a second amended complaint.

The hearing on the DAG 's (deputy attorney general) motion to dismiss the first amended complaint (a motion to dismiss is called a demurrer under California state practice) was today. Our main response to the demurrer was that the first amended complaint is moot if the court accepts our second amended complaint, so there is no point for the court to consider the DAG's demurrer at this time. The court agreed, and stayed the DAG's demurrer pending the resolution of our motion to leave to file the Second Amended Complaint.

Bottom line: The DAG tried to get the judge to throw out the case today, and not let us present to the court the new evidence and claims about the newly uncovered illegalities in the California vaccine exemption problem. The judge refused to do so. We get the chance to make our case with this new information.

We believe there is a reasonable chance the case will be allowed to proceed based on the "important public policy" exception to the exhaustion of administrative remedies doctrine. There are few more important public policy issues today than the safety of thousands of medically fragile children. We are hopeful that the judge will agree.

Stay Tuned!

Rick Jaffe, Esq.

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