Mark R. Ashton (Boosted)

In October there was a local case where parents were in conflict over vaccination of an incapacitated adult child. In that case, Matter of A.C.G., after an evidentiary hearing, the Court ruled that the child could be vaccinated over one parent’s express objection. On January 28, 2022 we saw another ruling in Bailer v. Bailer arising from an order seeking legal custody for the sole purpose of having two children vaccinated against Covid-19.

The facts are relatively simple. The affected children are 6 and 8 years of age with no identified health issues. The parties acknowledged the Center for Disease Control (CDC) recently recommended vaccination of children over age 5. The family pediatrician recommended the Pfizer-BioNTech vaccine. Father opposed that course based upon conversations with the physician which left him concerned about long term effects of this preventative approach. Father, who had some background in laboratory science, brought to court recent reports from the American Academy of Pediatrics (AAP). The content of the reports was not discussed in the court’s opinion but suffice to say we can all probably agree that when a vaccine is first deployed only fourteen months ago, we don’t really have hard science of long term effects.

Father noted that the AAP reports instances of severe allergic reaction, Myocarditis and Pericarditis attendant to vaccination. He also argued that cases were declining and contended that children, especially healthy ones, have some natural immunity to the coronavirus.

The Court afforded ‘judicial notice’ to both the CDC publications and the AAP studies. In one sense, this was made easy because neither party objected to their admission. It then picked up on the CDC Study finding that Covid-19 ranked among the top 10 causes of death in children 5-11 and that the consequence of developing the virus included risk of hospitalization, infection, long Covid symptoms and possible Multi-System Inflammatory Syndrome. So, no surprise that the court decided to grant legal custody to mother limited to vaccination with the Pfizer product.

The analysis of newly elected Judge Anthony Verwey is thorough and concise. But, as one reads it, there are things about the subject that really do merit debate in the legal community.

As noted, the reports of the CDC and the AAP were admitted without objection. Thus, judicial notice really wasn’t necessary to the engagement. But Pa.R.E. 201(b) informs us that judicial notice is for facts not subject to reasonable dispute. Pennsylvania’s version of that rule was intended to construe judicial notice more broadly than it had been before the rules were adopted. Older precedent suggested that only facts “literally” beyond dispute, were to fall into that category.

There are two versions of judicial notice. First are facts generally known. Pennsylvania examples include (1) children do play in the street (2) AIDs was a public health crisis (3) cops carry guns. One curious example cited by Judge Mark Bernstein in his book includes notice that flu vaccines are given to health people to inhibit transmission of the disease. Doe v. Phila. Community Health Alternatives, 745 A.2d 25,28 (Pa.S. 2000) aff’d. 767 A.2d 548 (Pa. 2001). The concept here is that the fact involved is widely known and not by some group within the general population. Hopefully, we all agree that not many of us read CDC recommendations or subscribe to professional publications in the pediatric world.

The second judicial notice aspect relates to facts ascertainable from sources whose accuracy is unquestionable. Here, the examples include cases holding that (1) Butler County is rated as of the fourth class (2) that PBGC life expectancy tables do correctly report the data collected (c) that a will’s reference to the “SPCA” meant the Society for the Protection of Cruelty to Animals (d) that  persons admitted to ARD for drunk driving will have their license suspended.

The point of judicial notice is to prevent a trial court from becoming lost in the weeds. We have all seen cases where testimony is occluded by an objection which is more disruptive than effective. But in this vaccination case, the heart of the question is to weigh whether the vaccine is effective or dangerous to these two children. Note that in the earlier case Matter of A.C.G., the child had physical vulnerabilities not present in this case. But the efficacy of the vaccines and assessment of the associated risk are barely known to the scientific community when it comes to children under age eleven.

The reader might dismiss this as an anti-vaccination essay. It is not. In this case, even the father of the children was fully vaccinated; yet he did not think it provident for the kids. The question I posit is whether we can attribute to either the CDC or the pediatric physician community “unquestionable accuracy” when they report on and make recommendations related to a vaccine that had emergency approval in late 2020 and was not finally approved until five months ago. It seems clear that both the FDA and the CDC are employing their best science in response to an illness that has afflicted 400 million people in 24 months and killed 1.4% of them.

The internet affords all of us lots of access to data, findings and recommendations. It does, to some degree, afford more liberal use of judicial notice. But, one has to be careful here to ask the “unquestionable accuracy” question. Again, not “unquestionable” in an absolute sense; but caution needs to be employed with judicial notice, especially where the information is culled from a source not in the courtroom and employed to decide the ultimate issue. (vaccinate or not)

A second issue of interest is justiciability. A justiciable controversy is one involving something more than a difference of opinion. Courts are supposed to steer clear of controversies that are more appropriately decided by the legislative or executive branches. Here we have a petition to authorize the vaccination of children for a particular illness. The party opposing the request acknowledges he is vaccinated and that his kids have been vaccinated against other illnesses. The essence of his defense to the request for a Covid vaccination is: “We don’t know the consequence of the vaccination.” In an absolute sense that is true because the vaccine is brand new although 4-5 billion vaccinations have occurred. But is an issue properly justiciable where the defense is: “I don’t know, it may turn out badly” Is it a court’s responsibility to answer an open question? Without denigrating the defendant’s concerns, the defendant did not show evidence by which a judge could assess the harm but speculation that harm might occur. Query: If parents disagree about whether a child should learn to drive how is a court to respond if the opponent offers no more than: “The child could crash the car and get hurt?”

We live in a time when it seems that courts are called upon to revisit decisions by all other branches of government. Today, courts are the backstop asked to judge elections, mask mandates, legislative reapportionment and other things that have taken on a decidedly political aspect. If you are reading about the US Supreme Court recently, it seems clear that courts from top to bottom are struggling with politicization of the judicial process. To this writer the courts are still standing as the respected adult in what seems much like a political bar fight. Unfortunately, a bar fight is a precarious place to stand.


Bailer v. Bailer    Chester County (15th Judicial Dist) 2019-09332

Matter of A.C.G.  Chester County  1517-0336 (Orphans’ Court)