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Green Bag, "Inviolability of the Human Body."

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Another exception sometimes made by the legislatures, if not by the courts, to the inviolability of the body, is in regard to vaccination. It has sometimes been enacted that the community should be vaccinated in order to prevent the rise or spread of contagion from small-pox. This seems a rather tyrannical interference with the person, but it was defended on the grounds which justify the blowing up or pulling down of houses to prevent the spread of conflagration. The right has been very strenuously denounced, and even forcibly resisted. No case has come in question in this country involving the right of the citizen to resist the vaccination of his own body where the provisions of the statute had been precisely complied with. In England the public authorities may order a child to be vaccinated. Reg. v. Justices, L. R. 17; Q. B. 191, and other cases cited in notes, 25 L. R. A. 152. In this country it was early held that a tax to pay the expenses of vaccinating the inhabitants of a town was valid. Hazen v. Strong, 2 Vt. 427, and it has been held that a school board may exclude pupils who refuse to be vaccinated. Duffield v. Williamsport School District, 162 Pa. St. 476; 25 L. R. A. 152. So a statute authorizing such actions by school boards is valid. Bissell v. Davison, 65 Conn. 183; 29 L. R. A. 251; Abeel v. Clark, 84 Cal. 226. If a statute authorizes vaccination only of persons infected or exposed, it confers no authority to vaccinate or quarantine an express proprietor on the ground that his business carries danger of infection. Re Smith, 146 N. Y. 68; 28 L. R. A. 820.

New developments

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[V]iral HPV DNA is neither an adulterant nor a contaminant and is, instead, a component of [the vaccine]. As a result, the [plaintiffs] failed to allege that [their child] received a contaminated vaccine and did not suffer a vaccine-related injury. . . . Simply labeling it as a contaminant and claiming that [the manufacturer] intentionally added it to the formula is not enough.

Miller v. Pach, Case No. 16-C-1130 (E.D. Wis., 2018)

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Miller asserts that the defendants were deliberately indifferent to his medical needs because Garcia failed to ensure that he received a vaccination she ordered and Pach and Waller did not allow him to take six warm showers per day. The court will address each claim in turn.

A. Vaccination

Miller alleges that Garcia was deliberately indifferent because she failed to ensure that a vaccination she had ordered for him was actually administered by nursing staff. Contrary to Miller's assertions, however, Garcia was anything but indifferent to his request for the vaccination. Garcia entered an order that Miller receive Prevnar-13 on December 8, 2015. On January 16, 2016, Garcia entered another order requesting a status of Miller's Prevnar-13 vaccination. Nursing staff confirmed that Miller would receive the vaccination that week. At a follow-up appointment on January 28, 2016, Miller reported that he recently received the vaccination.

To the extent Miller asserts Garcia was deliberately indifferent to the speed with which he received the vaccination, his claim fails. Miller has not presented any medical evidence that the delay between Garcia ordering the vaccination on December 8, 2015 and the administration of the vaccination on January 26, 2016 detrimentally affected, unnecessarily prolonged, or exacerbated his pain. See Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir. 2007) ("In cases where prison officials delayed rather than denied medical assistance to an inmate, courts have required the plaintiff to offer 'verifying medical evidence' that the delay (rather than the inmate's underlying condition) caused

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some degree of harm." (citing cases)). In other words, a plaintiff must provide "medical evidence that tends to confirm or corroborate a claim that the delay was detrimental." Id. Miller has not shown that the delay in receiving the vaccination caused any injury or an infection or was otherwise detrimental. The Seventh Circuit has recognized that "delays are common in the prison setting with limited resources." Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016); see also Wood v. Idaho DOC, 391 F. Supp. 2d 852, 866-67 (D. Idaho 2005) (noting that mere delay in receiving a vaccination does not constitute an Eighth Amendment violation when the delay did not cause serious harm or the contraction of the virus). Absent evidence that the delay in receiving the Prevnar-13 vaccination was caused by more than the time it took for the vaccination to be delivered to the institution, no reasonable jury could conclude that any delay in receiving the vaccination was caused by Garcia's deliberate indifference. For these reasons, Miller has not established that Garcia was deliberately indifferent to his medical needs.

Spahn v. Sec'y of Health & Human Servs., No. 09-386V (Fed. Cl., 2018)

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In this regard, the Secretary argues that he may raise the argument presented in the motion for review, because he "explicitly raised the central argument presented in his [motion for review]" during the proceedings before the special master. Resp't Supp. Br. at 2. Specifically, the Secretary contends that he argued during the proceedings before the special master that "neither the Vaccine Act nor the Vaccine Rules require [him] to file a response to a fee application" and that "the special master's duty to determine a reasonable award of attorneys' fees and costs operates independently from whether or not [the Secretary] raises any objection(s) to the application." Id. And so, the Secretary also contends that he has properly preserved this argument for the Court to conduct its review. Id. at 1-4. The Court agrees.

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It is well-established that Vaccine Rule 8(f) provides that any fact or argument not raised by the party in front of the special master cannot be considered on review by this Court. See Vaccine Rule 8(f). Specifically, this rule provides that:

(f) Waiver of a Fact or Argument.

(1) In General. Any fact or argument not raised specifically in the record before the special master will be considered waived and cannot be raised by either party in proceedings on review of a special master's decision.

(2) Exception. This rule does not apply to legal arguments raised by the party that stands in the role of the appellee on review. Id. And so, to raise the argument that the special master abused his discretion by failing to make an independent reasonableness assessment, the Secretary must point to specific evidence in the record to show that this argument has been "adequately presented to the special master." See Davis, 409 F. App'x at 344.

The evidentiary record shows that, in his October 20, 2017, response to petitioner's application for attorneys' fees and costs, the Secretary argued that:

Neither the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs.

Indeed, as the Court of Federal Claims has recently held, in the Vaccine Program "'it is clear that petitioner bears the burden of proof, and respondent in fact is not required to make any objection for the special master to deny fees and costs. . . .'" Resp't Resp. to Pet'r Mot. for Att'y Fees at 1 (quoting Scharfenberger, 124 Fed. Cl. at 234 ). And so, the evidentiary record makes clear that the Secretary presented the argument that he had no obligation to raise any objections to petitioner's fee application before the special master. Id.

The evidentiary record also shows that the Secretary presented the argument that the special master has an independent duty to make a reasonableness determination regarding petitioner's application for attorneys' fees and costs to the special master. In his response to petitioner's fee application, the Secretary argued that "[t]he Federal Circuit has made it clear that 'the determination of the amount of reasonable fees is within the special master's discretion.'" Id. at 2 (quoting Saxon v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993)).

Aventis v. Skevofilax

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The case of Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 408-09, 914 A.2d 113, 115 (2007), is instructive as to the testimony of an expert witness regarding causation. There, the parents of a minor brought a medical malpractice claim, alleging that the minor's "autism

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spectrum disorder was caused by thimerosal, a mercury-containing preservative used in pediatric vaccines" administered to the minor when he was an infant. Id. at 409, 914 A.2d at 115. However, the plaintiffs were unable to produce expert testimony as to causation. The defendants moved for summary judgment, arguing that the plaintiffs had failed to show any evidence as to causation. Id. at 442, 914 A.2d at 135. The circuit court granted the motion, noting that the plaintiffs had "conceded [their] inability to produce an expert witness on the area of specific causation[.]" Id. at 409, 914 A.2d at 115.

The Maryland Court of Appeals affirmed. Id. at 443, 914 A.2d at 136. The court stated, id. at 441-42, 914 A.2d at 135:

[T]here are, unquestionably, many occasions where the causal connection between a defendant's negligence and a disability claimed by a plaintiff does not need to be established by expert testimony. Particularly is this true when . . . the cause of the injury relates to matters of common experience, knowledge, or observation of laymen. . . . However, where the cause of an injury claimed to have resulted from a negligent act is a complicated medical question involving fact finding which properly falls within the province of medical experts (especially when the symptoms of the injury are purely subjective in nature, or where disability does not develop until some time after the negligent act), proof of the cause must be made by such witnesses. The court observed that the plaintiffs' medical malpractice suit "would require the trial court to determine whether vaccines administered to [the] eight-year-old [minor] as an infant caused his autism." Id. at 442, 914 A.2d at 135. It stated, id.: "For such a complex medical question, a medical expert would be necessary to prove specific causation within a reasonable degree of scientific certainty." Therefore, the court concluded that "[t]he trial court was correct in [its] legal conclusion that summary judgment was appropriate under the circumstances." Id. at 443, 914 A.2d at 135.

Brown v. Smith (Cal. App., 2018)

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SHARON BROWN et al., Plaintiffs and Appellants, v. KAREN SMITH, as Director, etc., et al., Defendants and Respondents.

B279936

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

July 2, 2018

Summaries:Source: Justia

The Court of Appeal affirmed the trial court's order dismissing plaintiffs' challenge to an amendment to California law that eliminated the previously existing "personal beliefs" exemption from mandatory immunization requirements for school children. Senate Bill No. 277 eliminated the personal beliefs exemption from the requirement that children receive vaccines for specified infectious diseases before being admitted to any public or private elementary or secondary school, day care center or the like. The court held that plaintiffs failed to cite any authority for their assertion that SB 277 violated freedom of religion and plaintiffs' free exercise claim was meritless; SB 277 did not violate plaintiffs' constitutional right to attend school; SB 277 did not violate the equal protection clause where the statutory classifications and exemptions plaintiffs disputed did not involve similarly situated children, or were otherwise entirely rational classifications; SB 277 was not void for vagueness where it was sufficiently clear to give fair warning of the required conduct; and SB 277 did not violate Health and Safety Code 24175 subdivision (a).

CERTIFIED FOR PUBLICATION

(Los Angeles County Super. Ct. No. BC617766)

APPEAL from an order of dismissal of the Superior Court of Los Angeles County. Gregory W. Alarcon, Judge. Affirmed.

Law Offices of T. Matthew Phillips and T. Matthew Phillips for Plaintiffs and Appellants.

Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Richard T. Waldow, Jonathan E. Rich and Jacquelyn Y. Young, Deputy Attorneys General, for Defendants and Respondents.

  • * * * * * *

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SUMMARY In 1890, the California Supreme Court rejected a constitutional challenge to a "vaccination act" that required schools to exclude any child who had not been vaccinated against small-pox. (Abeel v. Clark (1890) 84 Cal. 226, 227-228, 230 (Abeel).) In dismissing the suggestion that the act was "not within the scope of a police regulation," the court observed that, "[w]hile vaccination may not be the best and safest preventive possible, experience and observation . . . dating from the year 1796 . . . have proved it to be the best method known to medical science to lessen the liability to infection with the disease." (Id. at p. 230.) That being so, "it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class." (Ibid.)

More than 125 years have passed since Abeel, during which many federal and state cases, beginning with the high court's decision in Jacobson v. Massachusetts (1905) 197 U.S. 11 (Jacobson), have upheld, against various constitutional challenges, laws requiring immunization against various diseases. This is another such case, with a variation on the theme but with the same result.

We affirm the trial court's order dismissing plaintiffs' challenge to an amendment to California law that eliminated the previously existing "personal beliefs" exemption from mandatory immunization requirements for school children.

FACTS Plaintiffs Sharon Brown, Sarah Lucas, Dawnielle Selden, Serge Eustache, Tricia Eustache, and Nikki Jencen filed this lawsuit, seeking to invalidate amendments to California's public

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health laws governing immunization requirements against childhood diseases. These legislative changes were made by Senate Bill No. 277, approved by the Governor on June 30, 2015, effective January 1, 2016. (Stats. 2015, ch. 35.)

Senate Bill No. 277 eliminated the personal beliefs exemption from the requirement that children receive vaccines for specified infectious diseases before being admitted to any public or private elementary or secondary school, day care center or the like.1 (Sen. Bill No. 277, § 1.) In addition to a medical exemption,2 Senate Bill No. 277 contains exemptions for pupils in

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a home-based private school or independent study program who do not receive classroom-based instruction (Health & Saf. Code, § 120335, subd. (f)),3 and for pupils previously allowed a personal beliefs exemption, until they enroll in the next grade span (id., subd. (g)(1)). Grade spans are "[b]irth to preschool," "[k]indergarten and grades 1 to 6," and "[g]rades 7 to 12." (§ 120335, subd. (g)(2).) Also, pupils who qualify for an individualized education program are allowed access to any special education and related services required by that program. (§ 120335, subd. (h).) Otherwise, as of July 1, 2016, no pupil may be unconditionally admitted for the first time, or admitted or advanced to seventh grade level, unless immunized as required. (§ 120335, subd. (g)(3).)

The legislative history of Senate Bill No. 277 includes an extensive analysis of the bill, the reasons the authors gave for proposing the bill, the diseases that vaccines prevent and their health risks to children, the legal considerations, and the support for and opposition to the bill. (E.g., Assem. Com. on Health, Analysis of Sen. Bill No. 277 (2015-2016 Reg. Sess.) as amended May 7, 2015, pp. 1-16; id. at p. 4 ["All of the diseases for which California requires school vaccinations are very serious conditions that pose very real health risks to children."].)

Among many other things, the report from the Assembly Committee on Health discusses the protective effect of community immunity, which "wanes as large numbers of children

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do not receive some or all of the required vaccinations, resulting in the reemergence of vaccine preventable diseases in the U.S." (Assem. Com. on Health, Analysis of Sen. Bill No. 277, supra, p. 5.) The report explains that the vaccination rate in various communities "varies widely across the state," and some areas "become more susceptible to an outbreak than the state's overall vaccination levels may suggest," making it "difficult to control the spread of disease and mak[ing] us vulnerable to having the virus re-establish itself." (Ibid.) Further, studies have found that "when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease," and one analysis "found that more than a quarter of schools in California have measles-immunization rates below the 92-94% recommended by the CDC [(Center for Disease Control)]." (Ibid.) The report describes the December 2014 outbreak of measles linked to Disneyland (131 confirmed cases); states that according to the CDC, "measles is one of the first diseases to reappear when vaccination coverage rates fall"; and states that in 2014, 600 cases were reported to the CDC, the highest in many years. (Ibid.)

As indicated above, Senate Bill No. 277 was approved in June 2015 and became effective January 1, 2016. Plaintiffs filed their complaint on April 22, 2016. The operative second amended complaint sought to "halt enforcement" of Senate Bill No. 277. The complaint alleged Senate Bill No. 277 violated four provisions of the California Constitution: the free exercise of religion (art. I, § 4); the right to attend school (art. IX, § 5); equal protection (art. I, § 7) (alleging "discrimination based on vaccination status"); and due process (art. I, § 7) (alleging Senate Bill No. 277 was "void for vagueness"). The complaint also

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alleged a violation of section 24175, subdivision (a) (requiring informed consent for medical experiments).

The complaint described the plaintiffs, all of whom are parents with "sincerely held philosophic, conscientious, and religious objections to state-mandated immunization." (Italics omitted.) The defendant named in the operative complaint is Karen Smith, sued in her capacity as director of the California Department of Public Health. The 38-page complaint consists principally of argument, alleging, for example, that plaintiffs "dispute the central hypothesis that drives vaccine theory," which "has never been proven and Plaintiffs are eager to disprove it"; that "[v]accines kill and maim children"; and that Senate Bill No. 277 "is a totalitarian mandate that expects parents to merrily sacrifice their children for the greater good." We will describe the complaint's allegations further as necessary in our discussion of plaintiffs' contentions on appeal.

Defendants demurred to the complaint, plaintiffs opposed, and the trial court sustained defendants' demurrer without leave to amend. The court entered an order dismissing plaintiffs' complaint with prejudice and plaintiffs appealed.

A month after filing plaintiffs' opening brief, counsel filed a letter asking us to consider as "new authority[]" (Cal. Rules of Court, rule 8.254) the addition in July 2017 of a chemical to California's list of chemicals known to cause cancer. Plaintiffs contend they have "seen evidence" that the chemical contaminates vaccines. We deny the request, as it is both untimely and irrelevant to any issue on appeal.

After briefing was complete, counsel filed a motion to withdraw as attorney of record for plaintiffs, citing failure to pay fees and an irreparable breakdown of the attorney-client

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relationship. We granted the motion. Other counsel substituted in as counsel of record.

DISCUSSION 1. Standard of Review

A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "[C]ourts may—and, indeed, must—disregard allegations that are contrary to judicially noticed facts and documents." (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1338.) "[W]here an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity." (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.)

When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Plaintiff has the burden to show a reasonable possibility the complaint can be amended to state a cause of action. (Ibid.)

2. Contentions and Conclusions

a. Judicial notice

Along with their respondents' brief, defendants filed a motion requesting judicial notice of several categories of documents. These include documents from the legislative history

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of Senate Bill No. 277; documents published by the World Health Organization, the CDC, the American Academy of Pediatrics, and the United States Department of Health and Human Services, plus other materials addressing the safety and effectiveness of vaccinations; and federal and state trial court decisions rejecting challenges to Senate Bill No. 277. In addition, defendants requested we take judicial notice "of the safety and effectiveness of vaccinations in preventing the spread of dangerous communicable diseases, a fact that is commonly known and accepted in the scientific community and the general public."

We grant defendants' request for judicial notice.

Plaintiffs do not object to the legislative history materials, but object to the materials on vaccination as hearsay, inadmissible opinion evidence, and "government propaganda." Plaintiffs further argue that we cannot take judicial notice of the safety and effectiveness of vaccines. They contend the proposition that " 'protection of school children against crippling and deadly diseases by vaccinations is done effectively and safely' " is not common knowledge, and is the subject of reasonable dispute. But they cite no authority that supports their contention. The authorities are to the contrary.

More than 90 years ago, a California court observed that: "Where the issue pertains to medical or surgical treatment, the nature, effect, and result of which are the subjects of common knowledge, such matters are within the rule of judicial knowledge. As for instance, the court will take judicial notice of the nature, purpose, and effects of vaccination." (Southern California Edison Co. v. Industrial Accident Com. (1925) 75 Cal.App. 709, 715.)

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Our courts have also pointed out we may take judicial notice of scientific facts. (See McAllister v. Workmen's Compensation Appeals Board (1968) 69 Cal.2d 408, 414 ["Matters of scientific certainty are subject to judicial notice."]; Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145 ["Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter."].)

Accordingly, we conclude judicial notice of the safety and effectiveness of vaccinations is proper.4

b. The merits of plaintiffs' legal claims

Plaintiffs repeatedly cite and mischaracterize the holding of Bruesewitz v. Wyeth LLC (2011) 562 U.S. 223 (Bruesewitz). Bruesewitz held that "the National Childhood Vaccine Injury Act [(42 U.S.C. §§ 300aa-10 et seq.)] pre-empts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects." (Bruesewitz, at p. 243.) From this, plaintiffs conclude that "all vaccines, as a matter of law, are 'unavoidably unsafe' and 'unavoidably defective,' " "cause indiscriminate death and

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injury," and therefore "states must lack the power to mandate" their use.

Plaintiffs are, of course, quite wrong. No doubt injuries and deaths have been caused by vaccines, and no doubt there are cases of "unavoidable, adverse side effects." (Bruesewitz, supra, 562 U.S. at p. 230.) This does not change the pertinent point: as Bruesewitz tells us, "the elimination of communicable diseases through vaccination became 'one of the greatest achievements' of public health in the 20th century." (Id. at p. 226; see id. at p. 245 (conc. opn. of Breyer, J.) ["routine vaccination is 'one of the most spectacularly effective public health initiatives this country has ever undertaken' "].) But "these gains are fragile" and "[e]ven a brief period when vaccination programs are disrupted can lead to children's deaths." (Id. at p. 246 (conc. opn. of Breyer, J.).)

In short, it has been settled since 1905 in Jacobson, supra, 197 U.S. 11, "that it is within the police power of a State to provide for compulsory vaccination." (Zucht v. King (1922) 260 U.S. 174, 176; see also French v. Davidson (1904) 143 Cal. 658, 662 ["When we have determined that the act is within the police power of the state, nothing further need be said. The rest is to be left to the discretion of the law-making power. It is for that power to say whether vaccination shall be had as to all school children who have not been vaccinated all the time . . . ."]; ibid. [" 'Special burdens are often necessary for general benefits.' "].) Nothing in Bruesewitz changes any of these principles.

We address plaintiffs' causes of action in the order asserted in the complaint.

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i. The free exercise of religion (Cal. Const., art. I, § 4)

Plaintiffs cite no pertinent authority for their assertion that Senate Bill No. 277 "violates freedom of religion." It does not.

As a preliminary matter, we note that three of the six plaintiffs describe themselves as Christians, two of whom are opposed to the use of fetal cells in vaccines; the third has children who have had most of the recommended vaccinations. The other three plaintiffs allege nothing about any religious basis for their objection to vaccination. A belief that is "philosophical and personal rather than religious . . . does not rise to the demands of the Religion Clauses." (Wisconsin v. Yoder (1972) 406 U.S. 205, 216 (Yoder).)

Setting that point aside, in Phillips v. City of New York (2d Cir. 2015) 775 F.3d 538 (Phillips), the court held that "mandatory vaccination as a condition for admission to school does not violate the Free Exercise Clause." (Id. at p. 543.) In Phillips, New York law required that students be immunized against various vaccine-preventable illnesses, and provided medical and religious exemptions. (Id. at p. 540.) Phillips further stated: "New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. [T]he State could bar [plaintiffs'] children from school altogether." (Id. at p. 543.)

Phillips relied on the high court's "persuasive dictum" in Prince v. Massachusetts (1944) 321 U.S. 158. In Prince, the court observed: "[T]he family itself is not beyond regulation in the public interest, as against a claim of religious liberty. [Citations.] And neither rights of religion nor rights of parenthood are beyond

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limitation. . . . [The state's] authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." (Prince, at pp. 166-167, fn. omitted [upholding conviction for child labor law violation against a free exercise of religion claim].)

Even if we were to assume that laws requiring vaccination substantially burden the free exercise of religion and therefore merit strict scrutiny, plaintiffs' claim fails. (Workman v. Mingo County Board of Education (4th Cir. 2011) 419 Fed.Appx. 348, 353 [West Virginia's mandatory immunization program withstands strict scrutiny].) Citing Jacobson and Prince, Workman rejected the contention "that because West Virginia law requires vaccination against diseases that are not very prevalent, no compelling state interest can exist." (Workman, at p. 353.) "On the contrary, the state's wish to prevent the spread of communicable diseases clearly constitutes a compelling interest." (Ibid., see id. at p. 354 [conclusion that mandatory vaccination as a condition of school admission does not unconstitutionally infringe the right to free exercise "is buttressed by the opinions of numerous federal and state courts that have reached similar conclusions in comparable cases," citing cases].)

We agree with these authorities, and plaintiffs point to no pertinent authority to the contrary. Plaintiffs cite Yoder, supra, 406 U.S. 205, but Yoder does not assist plaintiffs; it concerned compulsory school attendance, not immunization against

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contagious diseases. And, the court pointed out that the case was "not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred," and that a parent's power, "even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." (Id. at pp. 230, 233-234.) Accordingly, plaintiffs' free exercise claim has no merit.

ii. The right to attend school (Cal. Const., art. IX, § 5)

The California Constitution provides for "a system of common schools by which a free school shall be kept up and supported in each district . . . ." (Cal. Const., art. IX, § 5.) While education is not a fundamental right under the federal Constitution, our Supreme Court has held that education is a " 'fundamental interest.' " (Serrano v. Priest (1971) 5 Cal.3d 584, 608-609 (Serrano).) Serrano struck down a public school financing scheme as violating equal protection guaranties "because it discriminated against a fundamental interest - education - on the basis of a suspect classification - district wealth - and could not be justified by a compelling state interest under the strict scrutiny test thus applicable." (Butt v. State of California (1992) 4 Cal.4th 668, 682 [describing Serrano].)

Plaintiffs cite Serrano to support their claim that Senate Bill No. 277 violates their constitutional right to attend school, but fail to explain its application here. There is no "suspect classification" underlying Senate Bill No. 277. But even if we assume the strict scrutiny test should be applied to any law affecting the fundamental interest in education, Senate Bill

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No. 277 would pass that test. One court has already so held, and we agree with its analysis. (Whitlow v. Cal. Dept. of Education (S.D.Cal. 2016) 203 F.Supp.3d 1079 (Whitlow) [denying motion to preliminarily enjoin the state from enforcing Sen. Bill No. 277].)

As Whitlow points out, federal and state courts, beginning with Abeel, have held "either explicitly or implicitly" that "society has a compelling interest in fighting the spread of contagious diseases through mandatory vaccination of school-aged children." (Whitlow, supra, 203 F.Supp.3d at pp. 1089-1090, citing cases.) That interest exists "regardless of the circumstances of the day, and is equally compelling whether it is being used to prevent outbreaks or eradicate diseases." (Id. at p. 1090.) As stated in the statute on immunization requirements, the state's objective is "the eventual achievement of total immunization of appropriate age groups against [specified] childhood diseases." (§ 120325, subd. (a).)

Plaintiffs allege in their complaint that Senate Bill No. 277 is not narrowly tailored to meet the state's interest, because there are less restrictive alternatives (such as alternative means (unspecified) of immunization, and quarantine in the event of an outbreak of disease). This argument fails, of course, as compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that "when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease," and community immunity wanes if large numbers of children do not receive required vaccinations. (Assem. Com. on Health, Analysis of Sen. Bill No. 277, supra, p. 5.)

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In short, as we have already pointed out, states may impose vaccination requirements without providing religious exemptions. We agree with Whitlow's conclusion: "The right of education, fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a State's interest in protecting the health and safety of its citizens, and particularly, school children," and "removal of the [personal beliefs exemption] is necessary or narrowly drawn to serve the compelling objective of SB 277." (Whitlow, supra, 203 F.Supp.3d at p. 1091.)

iii. Equal protection (Cal. Const., art. I, § 7)

In their complaint, plaintiffs alleged Senate Bill No. 277 violates the equal protection clause by discriminating "based on vaccination status." On appeal, plaintiffs tell us Senate Bill No. 277 also discriminates based on multiple other classifications, such as "home-based vs. classroom-based students," "medically exempt students vs. students without medical exemptions," children with individualized education plans and those without, and so on. Plaintiffs cite no authority suggesting that any of these classifications gives rise to equal protection concerns, and we are aware of none.

Consequently, we confine ourselves to pointing out that in 1904, our Supreme Court rejected a 14th Amendment challenge to the state's mandatory vaccination law, finding in it "no element of class legislation." (French v. Davidson, supra, 143 Cal. at p. 662.) The court observed: "It needs no argument to show that, when it comes to preventing the spread of contagious diseases, children attending school occupy a natural class by themselves, more liable to contagion, perhaps, than any other class that we can think of. This effort . . . was for the benefit and

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protection of all the people . . . . It in no way interferes with the right of the child to attend school, provided the child complies with its provisions." (Ibid.)

The statutory classifications and exemptions plaintiffs dispute do not involve similarly situated children, or are otherwise entirely rational classifications. For a discussion delineating, and rejecting, equal protection claims based on these categories, see Whitlow, supra, 203 F.Supp.3d at pages 1087-1088.

iv. Due process (Cal. Const., art. I, § 7)

Next, plaintiffs contend Senate Bill No. 277 is void for vagueness under California's due process clause. Their argument is that the Legislature's goal - "[a] means for the eventual achievement of total immunization of appropriate age groups" against the specified childhood diseases - is unconstitutionally vague because "nobody knows what it means." Plaintiffs also contend the medical exemption requirements are unconstitutionally vague and "violative of due process."

We have no difficulty perceiving the legislative goal. Indeed, it is nothing new - the goal of "total immunization" has been stated in section 120325 since its passage in 1995, when the Legislature reorganized and clarified portions of the Health and Safety Code. (Sen. Bill No. 1360, Stats. 1995, ch. 415.) As for the claim of vagueness in the medical exemption, plaintiffs make no argument at all, simply stating in a single sentence that the requirements are vague. That does not constitute a proper appellate argument. Moreover, plaintiffs offer no authorities describing the principles of vagueness in constitutional law, much less how those principles could apply to their claims. They

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do not. "A statute is void for vagueness if persons of common intelligence must guess as to its meaning and differ as to its applications." (Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, 1206.) The medical exception (quoted in fn. 2, ante) on its face is "sufficiently clear to give fair warning of the . . . required conduct." (Schweitzer, at p. 1206.)

v. Section 24175, subdivision (a)

Finally, plaintiffs alleged a violation of section 24175, subdivision (a). That statute provides that no one may be subjected to a medical experiment without his or her informed consent. (§ 24175, subd. (a).) A medical experiment includes "[t]he . . . penetration . . . of tissues of a human subject . . . in the practice . . . of medicine in a manner not reasonably related to maintaining or improving the health of the subject or otherwise directly benefiting the subject." (§ 24174, subd. (a).) Plaintiffs tell us that "all vaccines are 'medical experiments.' "

This claim is patently erroneous. The applicable authorities - legal and scientific - clearly show that immunization is reasonably related to maintaining the health of the subject of the immunization as well as the public health.

c. No leave to amend

Plaintiffs state - in their reply brief - that they should be granted leave to amend. That request is untimely as it was not made in their opening brief, but in any event plaintiffs do not explain how they could amend the complaint to cure its defects. The trial court did not err in sustaining the demurrer without leave to amend.

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DISPOSITION The judgment is affirmed. Defendants shall recover their costs on appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P .J.

ROGAN, J.*

Footnotes:

1. The childhood diseases specified are diphtheria, hepatitis B, haemophilus influenzae type b, measles, mumps, pertussis (whooping cough), poliomyelitis, rubella, tetanus, and varicella (chickenpox). (Health & Saf. Code, § 120325, subd. (a)(1)-(10).) The list also includes "[a]ny other disease deemed appropriate by the department, taking into consideration the recommendations of the Advisory Committee on Immunization Practices of the United States Department of Health and Human Services, the American Academy of Pediatrics, and the American Academy of Family Physicians." (Id., subd. (a)(11).) As to the last item, immunization may be mandated before a pupil's first admission to any school or child care center only if exemptions are allowed for both medical reasons and personal beliefs. (§ 120338.)

2. The medical exemption, as amended by Senate Bill No. 277, states: "If the parent or guardian files with the governing authority a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization, that child shall be exempt from the [immunization] requirements . . . to the extent indicated by the physician's statement." (§ 120370, subd. (a).)

3. Further statutory citations are to the Health and Safety Code, unless otherwise specified.

4. Our ruling likewise disposes of plaintiffs' first claim in their opening brief: that the trial court erred by not "presuming the truth" of plaintiffs' allegation "that all vaccines are unavoidably unsafe." As we have observed in the text, courts may disregard allegations that are contrary to judicially noticed facts.

  • . Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Mohler v. Sec'y of Health & Human Servs. (Fed. Cl., 2018)

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A. Reasonable Attorneys' Fees

The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines "an initial estimate of a reasonable attorneys' fee by 'multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348. Special masters have "wide discretion in determining the reasonableness" of attorneys' fees and costs, Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994), and may increase or reduce the initial fee award calculation based on specific findings. Avera, 515 F.3d at 1348.

In making reductions, a line-by-line evaluation of the fee application is not required. Wasson, 24 Cl. Ct. at 484, rev'd on other grounds and aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters may rely on their experience with the Vaccine Act and its attorneys to determine the reasonable number of hours expended. Id. Just as "[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications." Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).

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b. Vague Billing Entries

ii. Reasonable Hours Expended

The second factor in the lodestar formula is a reasonable number of hours expended. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec'y of Health and Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993); see also, e.g., Shorkey v. Sec'y of Health and Human Servs., No. 15-768V, 2017 WL 2119118 (Fed. Cl. Spec. Mstr. April 21, 2017). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (Fed. Cl. 2008).

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It is "well within the special master's discretion to reduce the hours to a number that, in his experience and judgment, [is] reasonable for the work done." Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).

a. Excessive Billing

Excessive billing has previously resulted in a reasonable reduction of attorneys' fees. See Tetlock v. Sec'y of Health & Human Servs., No. 10-56V, 2017 WL 5664257 (Fed. Cl. Spec. Mstr. Nov. 1, 2017) (reducing the overall attorneys' fee award by 30 percent due to excessive, duplicative, and vague billing entries); see also Ericzon v. Sec'y of Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan 15, 2016) (reducing the overall attorneys' fee award by 10 percent due to excessive and duplicative billing).

I have reviewed the billing records and invoices submitted with petitioner's motion. The billing entries reflect the nature of each task performed, the amount of time expended, and the person performing each task. However, there are some instances of unreasonable or excessive billing for which I will reduce the amount of fees awarded.

First, on December 29, 2016, counsel billed 0.20 hours for filing a notice of change of address, which I find excessive for such a simple and uncomplicated task. Pet. App. at 5. I will thus reduce the amount of time expended to a more reasonable 0.10 hours. Additionally, petitioner's counsel billed this task at the attorney rate of $225 per hour. Such a task does not require the legal expertise of an attorney and is typically performed by a paralegal. Thus, I will award the requested paralegal rate of $125 per hour for this task. These adjustments result in a reduction of $32.50.

Also on December 29, 2016, Ms. Moyers, a paralegal, billed a total of 0.50 hours to draft and file a statement of completion. I will similarly reduce the hours expended on this task to 0.20 hours, resulting in a reduction of $37.50.

Finally, counsel billed excessive time for the Joint Notice Not to Seek Review ("JNNSR") in March 2018. Pet. App. at 9. I am skeptical that the work for a simple, two-sentence JNNSR requires five different entries for 1.2 hours of attorney and paralegal time, and a total cost of $180.00. As this is an unreasonable amount of time associated with the JNNSR, I will only award 0.2 hours at the attorney's rate, which results in a reduction of $135.00.

b. Vague Billing Entries

Special masters have previously found it reasonable to decrease an award of attorneys' fees for vagueness. See, e.g., Barry v. Sec'y of Health and Human Servs., No. 12-39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016); Bondi v. Sec'y of Health & Human Servs., No. 15-749V, 2016 WL 1212890 (Fed. Cl. Spec. Mstr. Mar. 4, 2016). After reviewing the billing records, I find that counsel included unreasonably vague billing entries. See Pet. App. at

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5-7. For instance, on February 29, 2016, petitioner requests $739.50 for a task simply labeled "Davies." Pet. App. at 5. The billing entry provides no information about the task or why it took nearly three hours to complete. Similarly, an August 12, 2016 entry is simply labeled "Byers" with no further explanation. Id. Other vague entries include "to associate re claim prep" on October 1, 2016, and "completeness" on December 12, 2016. Id. Such vague entries make it difficult to determine whether some of these tasks are even compensable. The Muller Brazil firm is cautioned that it may not be compensated for vague billing entries in future motions for attorneys' fees and costs.

B. Reasonable Costs

Like attorneys' fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requested a total of $4,976.55 in out-of-pocket expenses. Pet. App. at 12. Petitioner's costs include: the filing fee; obtaining medical records; obtaining expert opinions; and a courier service. See Pet. App. at 13. The most significant cost is Dr. Gershwin's expert report, totaling $4,250.00. I have reviewed the submitted invoices, and I find petitioner's costs are sufficiently documented and appear reasonable. Thus, I will award petitioner's requested costs of $4,976.55 in full.

Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 914 A.2d 113 (2007)

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Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 408-09, 914 A.2d 113, 115 (2007), is instructive as to the testimony of an expert witness regarding causation. There, the parents of a minor brought a medical malpractice claim, alleging that the minor's "autism

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spectrum disorder was caused by thimerosal, a mercury-containing preservative used in pediatric vaccines" administered to the minor when he was an infant. Id. at 409, 914 A.2d at 115. However, the plaintiffs were unable to produce expert testimony as to causation. The defendants moved for summary judgment, arguing that the plaintiffs had failed to show any evidence as to causation. Id. at 442, 914 A.2d at 135. The circuit court granted the motion, noting that the plaintiffs had "conceded [their] inability to produce an expert witness on the area of specific causation[.]" Id. at 409, 914 A.2d at 115.

The Maryland Court of Appeals affirmed. Id. at 443, 914 A.2d at 136. The court stated, id. at 441-42, 914 A.2d at 135:

[T]here are, unquestionably, many occasions where the causal connection between a defendant's negligence and a disability claimed by a plaintiff does not need to be established by expert testimony. Particularly is this true when . . . the cause of the injury relates to matters of common experience, knowledge, or observation of laymen. . . . However, where the cause of an injury claimed to have resulted from a negligent act is a complicated medical question involving fact finding which properly falls within the province of medical experts (especially when the symptoms of the injury are purely subjective in nature, or where disability does not develop until some time after the negligent act), proof of the cause must be made by such witnesses.

The court observed that the plaintiffs' medical malpractice suit "would require the trial court to determine whether vaccines administered to [the] eight-year-old [minor] as an infant caused his autism." Id. at 442, 914 A.2d at 135. It stated, id.: "For such a complex medical question, a medical expert would be necessary to prove specific causation within a reasonable degree of scientific certainty." Therefore, the court concluded that "[t]he trial court was correct in [its] legal conclusion that summary judgment was appropriate under the circumstances." Id. at 443, 914 A.2d at 135.

November 2018

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Love v. Dep't of Educ. (Cal. App., 2018)

Senate Bill No. 277 amended various provisions in the Health and Safety Code,4 effective January 1, 2016. (See Stats. 2015, ch. 35.) Pertinent to this appeal, the bill eliminated a parent's ability to opt out of the vaccination requirements imposed on children based on the parent's personal beliefs.5 As of July 1, 2016, school authorities "shall not unconditionally admit" any child for the first time to "any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center," or advance any child to seventh grade, unless he or she has been fully immunized against 10 specific diseases and "[a]ny other disease deemed appropriate by the [California Department of Public Health],"6 or qualifies for an exemption recognized by statute. (§§ 120335, subds. (b) & (g)(3), 120370.) A student is exempt from the requirement if a licensed physician states in writing that "the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe." (§ 120370, subd. (a).) Additionally, vaccinations are not required for students in a home-based private school or independent study program who do not receive classroom-based instruction, or those in individualized education programs. (§ 120335, subds. (f) & (h).) Page 5 The vaccination requirements are intended to provide "[a] means for the eventual achievement of total immunization of appropriate age groups against [certain] diseases." (§ 120325, subd. (a).) According to the Senate Committee on Education's analysis, the authors of the bill believed it was necessary because: " 'In early 2015, California became the epicenter of a measles outbreak which was the result of unvaccinated individuals infecting vulnerable individuals including children who are unable to receive vaccinations due to health conditions or age requirements. . . . Measles has spread through California and the United States, in large part, because of communities with large numbers of unvaccinated people. Between 2000 and 2012, the number of Personal Belief Exemptions (PBE) from vaccinations required for school entry that were filed rose by 337%. . . . From 2012 to 2014, the number of children entering Kindergarten without receiving some or all of their required vaccinations due to their parent's personal beliefs increased to 3.15%. In certain pockets of California, exemption rates are as high as 21% which places our communities at risk for preventable diseases. Given the highly contagious nature of diseases such as measles, vaccination rates of up to 95% are necessary to preserve herd immunity and prevent future outbreaks.' " (Sen. Com. on Education, Analysis of Sen. Bill No. 277 (2015-2016 Reg. Sess.) as amended April 9, 2015, p. 5.)

The Assembly Committee on Health's report states: "Each of the 10 diseases was added to California code through legislative action, after careful consideration of the public health risks of these diseases, cost to the state and health system, communicability, and rates of transmission. . . . [¶] . . . [¶] All of the diseases for which California requires school vaccinations are very serious conditions that pose very real health risks to children." (Assem. Com. on Health, Analysis of Sen. Bill No. 277 (2015-2016 Reg. Sess.) as amended May 7, 2015, p. 4.) In that report, the committee "discusses the protective effect of community immunity, which 'wanes as large numbers of children do not receive some or all of the Page 6 required vaccinations, resulting in the reemergence of vaccine preventable diseases in the U.S.' [Citation.] The report explains that the vaccination rate in various communities 'varies widely across the state,' and some areas 'become more susceptible to an outbreak than the state's overall vaccination levels may suggest,' making it 'difficult to control the spread of disease and mak[ing] us vulnerable to having the virus re-establish itself.' [Citation.] Further, studies have found that 'when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,' and one analysis 'found that more than a quarter of schools in California have measles-immunization rates below the 92-94% recommended by the CDC [(Center for Disease Control)].' [Citation.] The report describes the December 2014 outbreak of measles linked to Disneyland (131 confirmed cases); states that according to the CDC, 'measles is one of the first diseases to reappear when vaccination coverage rates fall'; and states that in 2014, 600 cases were reported to the CDC, the highest in many years." (Brown v. Smith, supra, 24 Cal.App.4th at p. 1140.)

[Probably more of the case is useful]

Ctr. for Investigative Reporting v. Se. Pa. Transp. Auth. (E.D. Pa., 2018)

36. SEPTA has accepted and run numerous advertisements for governmental entities promoting government programs and policy, including the following:

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a. SEPTA ran an advertisement for the federal Centers for Disease Control proclaiming, "Help him fight measles with the most powerful defense. Vaccines." (Trial Ex. 43.)

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The Court concludes that SEPTA did not reject CIR's ad because of its viewpoint, but because it fell into one of the content categories that SEPTA determined it would not accept—either political, economic, or social—or all of them. In other words, SEPTA has demonstrated that it rejected CIR's ad because it was related to an impermissible topic.

a. SEPTA's Acceptance of Public-Service Advertisements

CIR contends that SEPTA has accepted several ads from governmental entities that are also "political in nature" and "involv[e] an issue that . . . directly or indirectly implicates the action, inaction, prospective action or policies of a government entity," and that SEPTA rejected CIR's ad because of its "political" viewpoint. (CIR Post-Trial Br., at 15-16.) The "public service" ads that SEPTA accepted have been submitted in this case by CIR or SEPTA include the following exhibits:

Trial Ex. 43: Center for Disease Control ad stating, "Help him fight measles with the most powerful defense. Vaccines."

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The Court disagrees that these ads are analogous to CIR's ad. SEPTA reasonably concluded CIR's ad, by suggesting that lending practices are discriminatory in violation of the law, was content about one of the issues that SEPTA has prohibited. Unlike CIR's ad, which promotes CIR's research and informs viewers that the banks that issued their home mortgages may be charging some borrowers more interest than others, because of race, the comparator ads are public service ads that merely inform views of their rights, the services available to them, or the City's objectives. Ctr. for Investigative Reporting v. Se. Pa. Transp. Auth. (E.D. Pa., 2018)

Brown v. Children's Hosp. of Phila. (E.D. Pa., 2018) Brown v. Children's Hosp. of Phila. (E.D. Pa., 2018)

Page 2

Plaintiff's amended complaint essentially avers that Defendant unlawfully discriminated against her by terminating her employment because of some unspecified religious belief. Briefly, the relevant facts in Plaintiff's amended complaint are as follows:

Prior to the termination of her employment on December 5, 2017, Plaintiff had been an employee of Defendant, a Philadelphia-based children's hospital, for fifteen (15) years. (Amend. Comp. ¶1). Beginning in 2012, Defendant mandated that all employees receive a flu shot. (Id. at ¶3). Plaintiff alleges that she indicated on a "questionnaire" that she opposed getting a flu shot. (Id.). In November 2017, Plaintiff told her manager that she "could no longer go against [her] beliefs and obtain the flu shot." (Id. at ¶4). Plaintiff then told a supervisor that because "she did not have a pastor to validate her beliefs," she wished to remove her consent to receiving the flu vaccination. (Id. at ¶5). A week later, a supervisor asked Plaintiff whether she had received the flu vaccination; Plaintiff said "no." (Id. at ¶6). Plaintiff then "asked why [she] was being force[d] to obtain the shot when in former years" she had "proven to remain healthy due to [her] African Holistic Health lifestyle." (Id.). Plaintiff's employment was terminated on December 5, 2017. (Id. at p. 4).

...

Title VII prohibits employers from discriminating against an individual in hiring, discharge, compensation, term, conditions, or privileges of employment on the basis of his or her religion. 42 U.S.C. §2000e-2(a)(1); Webb v. City of Philadelphia, 562 F.3d 256, 259 (3d Cir. 2009) (citing 42 U.S.C. §2000e-2(a)(1)). Title VII extends protection to "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the . . . employer's business." 42 U.S.C. §2000e(j). To establish a claim for

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religion-based employment discrimination, employees may rely on either a theory of "disparate treatment" or a "failure to accommodate." Abramson v. William Paterson College of N.J., 260 F.3d 265, 281 (3d Cir. 2001); Wallace v. City of Philadelphia, 2010 WL 1730850, at *6 (E.D. Pa. Apr. 26, 2010). Plaintiff purports to bring a claim under the "failure to accommodate" theory.

Title VII requires employers to make reasonable accommodations for their employees' religious beliefs and practices unless doing so would result in "undue hardship" to the employer. See 42 U.S.C. §2000e(j). To plead a claim of religion-based employment discrimination under the theory that an employer failed to accommodate a plaintiff's religious beliefs, Plaintiff must allege facts sufficient to show that: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement. See Webb, 562 F.3d at 259 (citing Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000)).

Here, Plaintiff's second amended complaint fails to plead or identify a sincerely held religious belief that conflicted with Defendant's policy of annual flu vaccines. Plaintiff alleges only that she advised Defendant on a questionnaire that she was opposed to getting a flu shot. (See Amend. Comp. at ¶3). Nowhere in her amended complaint, however, does Plaintiff identify any particular religious belief that she held and/or that conflicted with Defendant's requirement that all employees receive a flu vaccination.

In addition, because an "employee's religion . . . is often unknown to the employer," the United States Court of Appeals for the Third Circuit has required "that employees [have] informed their employers of their religious beliefs prior to the alleged discriminatory action" in order to make out a prima facie case for discharge on account of religion. Geraci v. Moody-

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Tottrup, Intern., Inc., 82 F.3d 578, 581 (3d Cir. 1996) (citing Protos v. Volkswagen, Inc., 797 F.2d 129, 133 (3d Cir. 1986)); see also Morrison v. Access Services, Inc., 2014 WL 5286604, at *4 (E.D. Pa. Oct. 15, 2014). Plaintiff's amended complaint is, however, silent with respect to whether Plaintiff advised Defendant of any particular religious beliefs that she held. Plaintiff also fails to allege that she advised her employer as to a conflict between any particular religious belief she held and Defendant's requirement that its employees get a flu shot. In the absence of such essential facts, Plaintiff's Title VII religious discrimination claim fails.

Sanchez v. Indiana (S.D. Ind., 2018)

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Mr. Sanchez is a pretrial detainee at the Floyd County Jail. Mr. Sanchez believes two fellow inmates exposed him to Hepatitis A, but his custodians refuse to test him or vaccinate him against the disease. Mr. Sanchez seeks both injunctive relief and damages.

These allegations support a plausible claim that Mr. Sanchez's custodians have been deliberately indifferent to his serious medical needs in violation of his rights under the Fourteenth Amendment as a pretrial detainee. However, Mr. Sanchez has not named a proper defendant in his complaint.

[note: improper plaintiffs were dismissed, and the plaintiff was given leave to amend to identify proper plaintiffs]

Jacobs v. Wal-Mart Stores, Inc. (W.D. Wash., 2018)

Page 1

According to the Complaint, Defendant wrongfully terminated and discriminated against Plaintiff on the basis of disability. It is alleged that Defendant terminated Plaintiff, a staff

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pharmacist and employee for Defendant for approximately twenty years, because she was unable to perform immunization injections due to medical conditions of cerebral palsy and multiple sclerosis. Dkt. 1 at ¶¶8, 9, 11, 17. The Complaint alleges that although Defendant initially made accommodations for Plaintiff's physical disability, Defendant ultimately terminated Plaintiff and denied reasonable requests for accommodation. Id. at ¶¶19, 21, 23.

Defendant seeks an independent medical examination (IME) of Plaintiff under Fed. R. Civ. P. 35, under the theory that Plaintiff has placed her physical condition at issue. Dkt. 34 at 1. The purpose of the IME, Defendant summarizes, is "[t]o evaluate . . . [Plaintiff's] physical ability to use a Pharmajet® to inject vaccines into patients, perform necessary emergency measures, and whether she could continue to do both safely until 20221 as she claims[.]" Id. at 6. Defendant requests examination by neurologist Dr. Barbara Jessen "or another qualified physician" on a mutually agreeable date in the Seattle/Tacoma area. Id. at 2; Dkt. 88 at 4.

...

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Plaintiff's opposition to the IME is understandable, but ultimately unpersuasive. Viewing the record from the perspective of the defense, Plaintiff's physical condition is at issue, and reasonably so. After Defendant announced its policy that pharmacists would be required to immunize clients, Plaintiff filed two requests for accommodation, using Wal-mart forms. The first form submitted requests an accommodation that Plaintiff be exempted from doing any immunizations, ever, while the second form submitted seeks "use of an injection pen to perform vaccinations requiring injections." Dkt. 65 at 57, 69; Dkt. 65-1 at 35. Differences between the two requests for accommodation may raise the question of whether and why things shifted, and assessing Plaintiff's physical condition could shed light on the reason for any change. In addition, Plaintiff has testified that she would have continued to keep working "until I was a hundred at Wal-Mart[,]" Dkt. 65-1 at 11, or, ostensibly, until retirement. The proposed IME can assess the degree to which Plaintiff could have continued working, e.g., with accommodation of an injection pen. In short, Plaintiff's physical condition is in controversy.

References

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