Unwanted advice for the anti-vaxxer Cali. SB 277 lawsuit reboot

Unwanted advice for the anti-vaxxer Cali. SB 277 lawsuit reboot

Here’s what I’m getting from the Bolen Report’s prediction/foreshadowing of the new SB277 challenge, and so here is some more probably unwanted advice:

500 Plaintiffs:

Really? HELLO: you’re fighting an asymmetrical battle. The government has a lot more financial and personnel power than you guys. Moreover, if what you say is true, namely that big pharma is behind the worldwide vaccine conspiracy, pharma has unlimited resources. You’re going to try to manage 500, or even dozens of plaintiffs? That doesn’t make any sense. What’s the upside? You don’t think the judge will know that there are a lot of you vaccine concerned out there? Get real and keep it manageable. Use just a couple plaintiffs to cover your bases, standing wise (a few affected individuals and a couple groups for associational standing), and that’s it.

Multiple Lawsuits:

Really? Filed by the same lawyers? Same or similar legal theories? You’re just making more unnecessary work for yourselves. The same or overlapping defendants will just file consolidation motions in each of the cases, or xerox the dismissal papers and submit them to all the courts. Filing a bunch of similar lawsuits will do a couple things which you shouldn’t want. It will burn a few months and waste money. Plus, you’ll really ingratiate yourselves with the judiciary, because there’s nothing judges like better than wasteful duplicate litigation which clogs their dockets.

Don’t overstate your case by bad-mouthing all vaccines that were ever given since the beginning of time

I get that the hard core anti-vaxxers think that no vaccine has ever helped a single human being or prevented anyone from getting any disease ever, and that everyone involved in the horrific vaccine genocide should be prosecuted, but for God’s sake don’t put that or any other crazy stuff in the complaint. Those Luddite arguments might play well to the hard core anti-vaxxer element, but you guys who are preparing the papers are professionals. There’s no sense writing stuff which will make the judge and the media think the clients and their lawyers are complete wackos.

Don’t make it personal

There is a tendency in cases like this to identify the boogeyman. The prior lawsuit and the two current pending lawsuits did that, focusing on the pediatrician/legislator and some Santa Barbara government official. It’s already been done and it won’t help your case to personally attack people who advocated or worked for a law passed by the legislature. That is how public health policy is set. Nor will it help your case by attacking government officials who want to make sure that the intent of the law is effectuated. That is the job of such officials. Calling them names and vilifying them will surely make the hard-core anti-vaxxers feel good, but it won’t help you case. If anything, it will hurt it.

Acknowledge the deep legal hole you’re in and move forward from there

All of the extreme anti-vaxxers, and a good percentage of the vaccine-concerned are living in an alternative legal universe. In the universe I and all reasonable and informed people live in, for over one hundred years, starting with the Supreme Court’s decision in Jacobson, every single legal decision has upheld the government’s right to mandate vaccination and has rejected a purported individual’s personal belief based asserted right to avoid vaccination based on an proposed extension of a constitutional right. All of these legal challenges fail because as is is oft-stated, the Constitution isn’t a suicide pact.The personal beliefs of the few will never outweigh the public health of the many.

That means that the only conceivable chance to have a judge think about letting the case proceed –rather than grant the state’s motion to dismiss – is to focus on public safety. Specifically, the public safety of kids, particularly young children, and specifically the vaccine schedule and maybe the dangers of the most popular adjuvants. You guys need to drill down, think small and get into the weeds; pick the most unassailable scientific concerns out there and go with that, rather than big picture things like cover-ups, conspiracies and boogeymen.

Your immediate goal

I would respectfully suggest that the purported goal of having some authoritative judge make some grand declaration about an individual’s rights superceding the right of the public to public health is completely unrealistic and will never ever, ever happen. Even a public health argument is a long shot, because such decisions are usually left to the legislative and executive branches. However, if you present a rational and interesting argument, you might just get a judge to let the case go forward, which should be the primary immediate goal of the new lawsuit, as opposed to filing a facially defective complaint –like the prior dismissed lawsuit, or the wacko papers filed in the two pending lawsuits.

In short, try something different this time; be smart; don’t file papers that the extreme anti-vaxxers will love, but the judges and press will think are crazy. That’s been done and done.

Rick Jaffe, Esq.


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