This will be the last or next to last update on the Stoller medical board case before the hearing which will take starting a week from Monday, on September 21st.
The big but expected news is that the hearing will take place by video conference, specifically, the Microsoft Teams platform.
The other big news is that anyone can listen to the hearing, but won't be able to watch it. There will be a call-in number if you want to hear any or all of it. I'll post details right before the hearing.
The board is only calling one witness, the Right Reverend a/k/a Dean Blumberg, MD, the head of pediatric infectious disease at UC Davis. He will explain how none of the 10 medical exemptions written by Dr. Stoller meet the "standard of care" because none of them comply with the CDC's ACIP guidelines for contraindications and precautions, and that there is no such thing as a permanent medical exemption for all vaccines since every vaccine is different (and the only commonality they have is that they'll all so wonderful and are god's gift to humanity, and anyone who thinks otherwise is just a crazed anti-vaccine hesitant ignorant moron. Ok so maybe I am exaggerating, but probably not by much).
In addition to Ken Stoller, Kelly Sutton, MD will testify for him about the separate standard of care which doctors like Ken and her used, to make ME decisions, way back when they were legal. We will likely call the mothers of two of the kids who received exemptions, but there will be no names revealed for privacy protection reasons.
The case should take around three days to try. It will start at 9:00 AM and with breaks should end by or before 5:00 PM each day.
If the judge and (ultimately the board) find him guilty of violating the standard of care, then the exemptions he wrote will be voided or not accepted by any school that becomes aware of the ruling against him.
If the board finds for us, then the exemptions should continue in effect.
Crunch time! If you can donate to the cause, now would be the time to do so.
Rick Jaffe, Esq.
Back in March, right before the lockdown, the Administrative Law Judge adjourned the March 16 hearing to June 8. Recently, the judge held a new prehearing conference to determine whether the case should go forward by telephone, videoconference or be adjourned. As a result of the conference, the judge decided with the consent of the parties to adjourn the hearing until late September. The new hearing date is the week of September 21st.
Needless to say, much has transpired since the case was originally set for hearing. Most of the news now focuses on the pandemic, the resulting lockdown, reopening, testing, and contract tracing. There is now much talk about whether there will be a vaccine and if so whether it will be mandated.
In the last two months I have given a lot of thought to these issues and how they might affect Ken Stoller’s case. The current situation presents some dangers but also some opportunities. As I will discuss in separate posts on my website, for both better and worse, vaccines are now front and center on the public’s radar screen. Many of you are fearful that a vaccine will be rushed and that it will be mandatory. For, reasons I will discuss in an actual post, I do not think that is going to happen so fast.
For now, in terms of Ken’s case, we are in the process of reevaluating possible opportunities to broaden the scope of the hearing, in light of what is happened and what may likely happen in the next few months. Nothing is set in stone but there are interesting opportunities and new lines of argument and evidence which could change things.
On a related note, I now know of and/or represent seven other NorCal physicians who are under active investigation by the board for writing medical exemptions. I would not expect any of those cases to go to hearing prior to early to mid 2021.
On another related note, I continue to hear from families that their children’s schools are questioning the validity of the permanent medical exemptions issued by these physicians, or simply being told that the exemptions will not be accepted next school year. This is despite the fact that there is yet no legal basis for the rejection of any medical exemption except those written by the one SoCal physician who is currently under a probation order.This will no doubt come to a head if and when school opens up sometime in the fall.
Rick Jaffe, Esq.
Right now, the Medical Board's case against Dr. Stoller's for writing 10 non CDC based ME's is still
scheduled for hearing during the week of June 8th. When the judge
picked that date after the shut-down, she indicated that the date was
not just a placeholder, and that the hearing could well go forward by
means other than live and in person, if the Office of Administrative Hearings is still closed.
Here are a few other relevant data points: Some administrative hearings involving the medical board have been changed from in person to telephonic, and these hearing have been set for this week, and as far as I know, they are taking place. Seems crazy to me, but they are doing it.
Generally speaking, civil and administrative proceedings are open to the public. Exceptions would include where there is a strong privacy interest, like in child custody cases. Medical board hearings however are generally open to the public, but parts can be restricted to protect the privacy rights of testifying patients or parents of patients.
In light of the physical closing of court houses, some California superior courts have provided for live-streaming
of their proceedings. And, you all know that for the first time in its
history, this week the Supreme Court has broadcast its telephonic oral
In our case, prior to the shut down, the judge issued a media order acknowledging the public's right to attend the hearing and the media's right to cover the hearing, but she prohibited the broadcasting or live-streaming the hearing, in part because of privacy issues. So, you see the issue.
So where are we?
Yesterday, we received an order from the judge scheduling another pre-hearing conference for May 15, 2020 at 10: AM to consider whether the hearing should go forward via telephone, video conference or adjourned to a date when there can be a live hearing.
Because of the great public interest which this case has and will continue to generate, as it deals with the validity and continued viability of ME's beyond CDC guidelines under SB 277, we feel the public has a right to know and follow the hearing. Therefore, we will be requesting that if the hearing takes place via telephone or video conference, the judge must allow the hearing to be live-streamed and followed by anyone who wants to watch or listen to it.
We will see how this all shakes out next Friday. If the public is excluded, we may be looking for some public or written expressions of unhappiness with an exclusion order.
Stay Tuned!Rick Jaffe, Esq.
The Administrative Law Judge has reset the Stoller Medical Board hearing for the week of June 8, 2020. Due to the uncertainty as to the length of the current shelter-in-place order in the Bay area and social distancing, she indicated that the hearing will go forward whether in person, videoconferencing, or telephone(or via smoke signals).
Like almost everyone save the hard-core conspiracy crazies, I am struggling to figure out what to make of all this Coronavires stuff; what should be the appropriate response; what is the worst-case scenario in terms of government reaction, and the legality thereof. Let’s start with the good news about where we are:
Since we are in the third geographical wave of this pandemic (Asia, then Europe), we continue to have many varied real-time scenarios and a plethora of data points to see how this all plays out. If the information coming out of China is correct (and that might be a big if), China is on the back side of the problem. Verification of China’s status (and the status of other Asian countries) could come in the next few weeks from Europe. That means we might be in a better position to assess the risks and how extensive the governmental and societal response needs to be, and for how long. But given the information available so far, it seems obvious that the best thing to do is follow the consensus advice of social distancing and reassess in a few weeks.
The bad news is that now there is talk about waves of infection lasting eighteen months or more. That is going to be complicated because we are not necessarily going to have real time data on that. The wave prediction will just be on the basis of modeling and maybe some prior pandemics, at least until it starts happening somewhere.
That will present some hard societal choices, and that is where the concerns of the pandemic sceptics will have to be taken more seriously. How much do you shut down society and commerce which surely will trigger a deep recession or even a depression because of the risk of a future wave? It seems unimaginable to me, other than in an apocalyptical scenario, that people will be willing to voluntarily live in a social distancing world indefinitely.
Government authority and regulation wise, cities, counties, states and the US government have very robust isolation and enforcement tools to combat an ongoing national communicable disease crisis. I have written about the Los Angeles Public Health Department Public Health Quarantine rules previously. Here is that post:
Many of you know that the Jacobson case, which was the Supreme Court’s first foray into mandatory vaccination, was a result of a small pox epidemic.
I would also remind you that during World War II, the US government interned over 100,000 Japanese Americans, half of whom were US citizens, because of national security concerns, even though there had not been a single case of a Japanese American committing an espionage act. The Supreme Court said that it was OK with them because it was a national emergency. (The case was US. V Korematsu.Here is the link: https://www.landmarkcases.org/cases/korematsu-v-united-states. Might not be a bad idea to take a look at it, because a new iteration of it might be coming to your neighborhood.)
The bottom line is that governmental authorities have plenty of power and precedent to restrict your freedom of movement.
Now the $64,000 question: What about compelled vaccination, meaning forcing people to be vaccinated for Coronavirus? That is a tougher and legally murkier question, and one not necessarily or arguably answered by all the mandatory vaccination cases, meaning cases which say you have to get vaccinated or pay a fine or you can’t send your kids to school, or be a health care worker.
For what it’s worth, one of the most basic constitutional principles or maybe a meta constitutional principle is that the Constitution is not a suicide pact. I think that means that the government will do what it has to do to protect the public as it, rather than each individual decides.
But that is all theoretical and not imminent in terms of possible compelled Coronavirus vaccination for at least two reasons, one practical, and one regulatory.
The practical reason is that by all accounts a Coronavirus vaccine is around year away, making it almost certainly beyond the initial wave. It will be a much different conversation when we are between waves; the implication being, there will not be imminent mass deaths (hopefully). Before the next wave, we will also have processed the data from the initial wave, so more informed decisions could theoretically be made. (And yes, here is where the big pharma could and most likely will be a major player in these policy decisions.)
Second, as indicated, the government has other drastic tools, like quarantine and even internment. I am not saying that will happen, but Korematsu tells us that you can’t count on the courts to protect people against rational or even irrational fear.
Circling back to the present, it seems to me that temporary social distancing is the order of the day. Give it a few weeks, see how the data grows, and perhaps a clearer picture emerges. Let the debate happen amongst the experts (republished by the Facebook warriors), and maybe in the two week to one month period there will be enough new information to make an informed decision about whether to go back to normal or not.
Rick Jaffe, Esq.
Ken Stoller's hearing which was scheduled to begin on Monday has been adjourned for a few months. The new date will be set by the judge by the end of next week.
Don't read anything into it. Earlier today, I made a motion to continue the hearing because I have been sick for the last few weeks. I think I got the flu from traveling back from SFO last month. It did not seem prudent to travel to the hearing sick, or expose other people. given the current situation. The Deputy Attorney General (who would have had to sit 6 feet away from me) wisely decided not to oppose the motion. Interestingly, the Office of Administrative Hearings, which I would not consider to be on the cutting-edge of audio/video/wifi/internet technology in terms of hearings, is considering ways to handle remote parts of hearings, via teleconferencing and such. Good for them, and it means that regardless of what happen, we will go forward with the hearing next time.
The good news is that this will give us some time to think and adapt to the judge's recent rulings, and maybe in a couple months things will settle down. To modify one of my favorite sayings, better to be lucky (or sick) than good.
Rick Jaffe, Esq.
We had our oral argument on the Board's Motion to eliminate parts of our case.
Here are the results:
Jim Neurenschwander won't be testifying in the case because his testimony does not relate to the 10 patients but just general concepts of vaccine safety. The judge didn't feel that his testimony would assist her in deciding the case.
Greg Glaser, Esq. will also not be testifying in the case for basically the same reason. He was going to explain the opinions he formed about SB 277 which he shared with Ken Stoller and many other physicians.
The judge didn't exclude all of our exhibits, mostly because the Board didn't provide them to her yet, and neither did we. She said she would rule on each exhibit as we offered it into evidence. However, it seems clear that she's not all that interested in vaccine safety in general, or vaccine safety data, but just about the decisions about the 10 patients. I'm not completely understanding her thinking about this, but forward we go.
For some reason which I am not sure about, two hours after the oral argument, she scheduled a status conference for tomorrow morning. There are a couple possibilities I can think of, but I won't speculate. There are a couple things in the works.
As of now, the case is still scheduled to begin on Monday. But it will be a shorter hearing now since we have two fewer witnesses. For whatever it's worth (and it may not be much), she has read both very excellent reports, and they are now part of the record which will be reviewed by the appellate courts.
Regardless of what this judge does or does not do, I have a pretty clear idea of how the board feels about Ken and the other doctors who wrote broad SB 277 exemptions. I am here to tell you that this case will be decided by the appellate courts, and there absolutely will be a precedential appellate decision on SB 277 based exemptions/exceptions under the integrative standard of care.
Rick Jaffe, Esq.
Under SB 277, a physician is permitted to issue a medical exemption if she determines that immunization "is not considered safe" for the patient. I confess to perhaps naively thinking that we could defend the Board's case against Dr. Stoller by showing why he did not consider immunization safe in the 10 patients involved in the Medical Board's accusation against him. To that end, we are offering a great deal of evidence in the form of medical literature, transcripts (like the Simpsonwood transcript originally publicized by Bobby Kennedy) and also recent things like the WHO conference excerpts.
response to all this evidence, the Board is making an almost
unbelievable argument to stop any of this information into evidence:
The board is literally arguing that vaccine safety evidence and data is irrelevant to any legitimate issue in the case.
board's view is that the only issue in the case is whether the medical
exemptions issued by Ken complied with ACIP Guidelines. If they didn't, then the Board claims the case is over, because actual evidence of vaccine safety should not even be admissible since it is not relevant, even though SB 277
specifically states that a physician's decision for exemption should be
based on a determination of immunization safety for the patient. That's
really what the board is saying!
The board doesn't think there is any medical judgement to make. All a physician has to do is look at the contraindication and precaution list in the ACIP guidelines and act accordingly. But of course, that's not what SB 277 said, and around and around we go.
Our view is that the language of SB 277 and the integrative medical standard for vaccine exemptions (allowable under Bus.& Prof. Code Section 2234.1) permits the kind of exemptions written by Ken in this case, and also protects other California integrative physicians who have written broader than ACIP guideline based exemptions. If we ultimately win, all such physicians will be protected. If we don't, I would expect all these other physicians to suffer the same fate as Ken will in this case. So, this is important for the doctors and the entire community.
We will know
by Thursday afternoon whether the administrative law judge will
disregard the words of SB 277 and agree with the Board. If she does, it
will probably be a much shorter hearing that we had hoped, and with a
foregone conclusion, at least until we get to the appellate courts.
(Note, administrative law judges in medical board cases only issue a "proposal for decision" with a recommended sanction. The Board has the power to accept, reject or change the ALJ's proposal. I predict, this case will be ultimately decided by the California Appellate Courts sometime in 2021 (or 2022 if it gets to the Cali. Supreme Court), so buckle-up, and prepare for a long ride!)
The hearing begins on Monday, March 16th.
Tuned for an Update by Friday on whether the judge agrees with the
Board and finds that vaccine safety is irrelevant to writing medical
exemptions under SB 277. I have no prediction on what she will do,
because I am not sure we're not not living in the Twilight Zone.
We're still accepting donations! Thanks to all who have given so far.
On Friday February 7th we had the required settlement conference before a settlement judge followed by a pre-hearing conference. Because this is a public post involving an ongoing litigation, for mostly obvious reasons, there is much I cannot share, especially in terms of strategy and tactics without potentially harming the case. Sorry, but that’s the way it is.
What I can report is that the case did not settle. The Board was looking for settlement terms which would lead to the revocation of all of Ken’s previously written medical exemptions. Ken was not prepared to do accept that. To resolve the case, we proposed a resolution which did not jeopardize the medical exemptions, but that was rejected by the board. In fairness and in context, cases which settle which involve alleged serious misconduct like in this case, usually involve stayed revocation/probation, which would lead to medical exemption revocation. So, I cannot conclude with certainty that the Board specifically wants all of Ken’s medical exemptions revoked, but that is the way it feels to me, and that it wants to send a strong message to every physician who has written a broad ME.
After the settlement conference, we had the pre-hearing conference before a different judge, and this judge will be the judge hearing the case. The judge hearing the case is smart, deliberate and reasonable, which is an impression I do not always get from administrative law judges in my past experience working around the country. She also has a background in genetics and I was happy to hear that, since a requisite part of all of Ken’s exemptions is consideration of genetic information.
The pre-hearing conference mostly sets deadlines. We also had discussions about possible media. Board cases deal with medical issues of patients which involves privacy and confidentiality issues. So, while some media will be allowed in for some parts of the case, other parts might not have media access. I did bring up the issue of live streaming the proceedings. Both the DAG and the judge had some concerns about the effect of live broadcasting might have on the witnesses. But no order has been entered and the there were just preliminary discussions. Also, the largest room has only between 20 and 30 seats for spectators.
The Main Issue in the Case
The Board’s view is that the standard of care for writing vaccine medical exemptions under California law is to look to the national guidelines, namely the CDC’s ACIP as evidenced in the Red Book, period. Whatever conditions qualify for an exemption from a particular vaccine in these guidelines is all there is under the standard of care. The Board also views that the standard of care requires a physician to have prior medical records, if the exemption writing physician is not the child’s PCP.The Board thinks the standard of care was not changed or impacted SB 277.
Our view is of course different: SB 277 gave Ken and other like-minded physicians the legal authority to write medical exemptions much broader than the ACIP and Red Book guidelines. Or, at the very least, the law appeared to do so on its face and certainly when Senators Pan and Allen’s statements to the legislature are considered. We think that all eleven ME’s in this were consistent with the SB 277 law on ME’s, and also consistent with the ability of complementary and alternative health care provides to provide medical advice different from that given by mainstream physicians under Bus. & Prof. Code 2234.1. We also do not believe that obtaining medical records from past treating physicians is usually necessary for issuing a ME.
The way this works is that the Administrative Law Judge, who is an employee of the Office of Administrative Hearings, makes a proposal for a decision including findings of fact, conclusions of law and a disciplinary recommendation (which is almost always within the published medical Board’s disciplinary guidelines).
The actual members of the medical board then all get a copy of the decision and decide whether to accept, reject or modify the ALJ’s proposed decision. The Board can basically do what it wants.
The Board’s decision can be appealed to the Superior Court, then appealed to the Court of Appeals. There is no automatic right to appeal this kind of case to the California Supreme Court.
Because a central issue involves the interpretation of a statute, and because a medical exemption is a statutory creation, I think the ultimate decider of this case will be the Court of Appeals, if that’s what it takes. and possibly the California Supreme Court.
We are still working though some important issues, including one which I know is close to your hearts and minds. For now, all I will say is that it’s under consideration, but in litigation things and plans change and new developments occur, and not all considerations and decisions in a case can be vetted or discussed on the internet.
More as things develop.
Rick Jaffe, Esq.
We are now less than six weeks away from the hearing on the Medical Board’s case against Ken Stoller for writing 11 temporary and permanent exemptions from immunization under the prior law, commonly known as SB 277.
Dr. Stoller is still without the necessary funds to pay for the hearing, and this gogetfunding campaign has not yet produced meaningful results. So, if you can donate to the case, please do so, soon.
The Big Issue in the Case
As all of you Cali. folks know, on January 1, 2020, SB 277 was replaced by SB 276 and SB 714. I’ve described in several prior posts the changes and effect of the new law. Here are a few of them.
The big, and most likely dispositive question in this case is whether SB 277 changed the conditions under which vaccine medical exemptions could be written, (i.e., beyond the CDC/ACIP contraindications and precautions.)
The Board’s view is that SB 277 did not change the vaccine medical exemption law and/or standards, and that physicians had to write exemptions in complete compliance with the ACIP guidelines/AAP Red Book Appendix.
Our view is that SB 277 did change the law and standards, or at the very least, many physicians thought it granted them the authority to write broader than ACIP based exemptions upon a determination that immunization was not safe for a particular child. At the hearing, we hope to have Senator Pan explain some of his statements which sure sounded like physicians had that discretion.
We have prepared an extensive power point presentation explaining our view of the law, and why physicians like Ken Stoller thought immunization fail a risk/benefit analysis under the law for children with a history of autoimmune disease and some suggestive genetic markers. This approach is part of a new approach to immunization called adversonomics or vaccinomics which is explained in the power point. Since there’s no reason to hide the ball, the power point isbeing made available in my post on my web site. www.rickjaffe.com. Many of you will like it Ken's work.
Tomorrow, February 7, 2020, there is a pre-hearing conference to talk through with the judge some of the legal issues. So, more to follow.
If the result of this case is important to you, please consider making a donation.
Rick Jaffe, Esq.