Tempus fugit. It was December 2020 when the FDA issued its first approval for a Covid vaccine. Perhaps this writer was the naïve one but I never thought a vaccine to ‘prevent’ a very deadly disease that has today afflicted nearly 1/3 of the U.S. population and killed a million of us would unleash a war pitting public health against civil liberties. But, I digress.
The vaccine wars have been played out in courtrooms throughout America. Separated parents decided that their childrens’ fears about succumbing to an airborne disease was not enough. The children also needed to witness courtroom battles where the deck was heavily stacked. Anyone who went to court to prevent a child from being vaccinated did so with little chance of prevailing. What judge in his or her right mind leaves a child exposed to death or serious illness in a setting where the Food and Drug Administration issued reports finding that there was a safe and efficacious means to prevent the illness? The writer did hear of cases where vaccine was denied but only in a setting where the child had pre-existing conditions which made the vaccine more dangerous than exposure to coronavirus.
Law moves slowly and that is not always a bad thing. In May, 2021 Pfizer’s vaccine secured FDA approval in children aged 12 and above. In Butler County the parents of S.B. shared legal custody of their daughter, born in May 2008. On August 26, 2021 mother filed for permission to have the child vaccinated. In November she amended that petition to reflect endorsement of vaccination by the pediatrician and the local schools. The local district insisted on vaccination as a condition to return to the classroom. The child had been vaccinated against other contagious diseases but Father opposed this one.
A hearing was schedule and mother proposed to admit a document issued by a non treating pediatrician. Father filed a motion to prevent the testimony because the written report was not specific to the child but a generic publication titled “Covid-19 Talking Points.” It expressed no opinion related to the subject child and the physician had not evaluated the child. The court granted the petition and mother filed an amended report wherein the physician stated an opinion based upon review of the child’s medical history.
On December 10, 2021 the physician was permitted to testify. His qualifications were not challenged as he headed the vaccine response for a local health system. His testimony appears to have mirrored what the FDA published and he saw no contraindications based upon the child’s history. There had been no actual physician exam of the child. The medical conclusion was that vaccination was a sound medical procedure.
Father appears to have represented himself. His defense was essentially built around the fact that FDA’s authorization was provisional and that long term effects were not ascertainable. Five days after the hearing the court granted mother’s request.
Father’s appeal contended the court had not issued findings of fact and the absence of a physical examination of the child.
The Superior Court acknowledged that where custody is being decided or modified the analysis of all statutory factors is required. But this was a one issue special relief petition and not a review of the custodial arrangements themselves. Thus S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014) and M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014) make clear that full factor analysis is superfluous. Nor need the court make finding of facts in deciding special relief petitions. But those findings were furnished in the trial court’s opinion in the appeal.
The father also asserted that the expert testimony should have been precluded because the court had originally denied the testimony. The Superior Court notes that while the original report may have been defective, the revised report met the standard of an expert report. Father’s contentions that the report was incomplete failed because he stipulated to the physician’s expertise. Father’s professed concerns about secondary effects were considered as make weight in a setting where he was not part of the wellness appointments the child had with her pediatrician before the onset of the pandemic. As happened in many of the cases we have read and heard about the parent opposing vaccination did not produce medical testimony speaking directly to contraindications. The expert’s testimony on a subject like this does not require a comprehensive analysis of the child’s genetic and medical history to be admissible and accepted by the courts.
There are no surprises in Judge Megan King’s published opinion. It was a good case to publish because it is emblematic of what has played out in many courtrooms where this issue has been litigated. The child’s pediatrician did testify but said no more than that there were no contraindications specific to this child. The case was viewed with an abuse of discretion standard and father produced no evidence which effectively rebutted mother’s case.
L.L.B. v. T.R.B. 2022 Pa. Super. 161 (Sept. 21, 2022) Bender, Dubrow & King w/o dissent/concurrence
Nota bene: A judicial friend sent me a copy of Shoemaker v. UPMC Pinnacle which involves a controversy over administration of invermectin. 2022 Pa. Super. 162. There is a timely quote in that opinion referencing the fact that black robes are a poor substitute for medically trained white coats and a suggestion that the medical and legal communities would be well advised to “stay in their respective lanes.”