Major Update in Ken Stoller’s Medical Board Appeal, and it’s not half bad

Major Update in Ken Stoller’s Medical Board Appeal, and it’s not half bad

The judge did not issue a tentative decision in the case today because he wants an oral argument to discuss some issues. Here is what is on the judge’s mind in his own words:

“Oral argument will be conducted remotely through the Zoom Application. The court clerk will provide counsel with the Zoom ID via email. ****

At the time of hearing, counsel may address any issue raised in the legal briefs. In addition, counsel shall be prepared to address the following issues:
(1) With Senate Bill 277 (2015), the Legislature excised the phrase “medical condition or circumstances that contraindicate immunization” from Health and Safety Code Section 120370(a) and replaced it with the phrase “medical condition or circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization.” The ACIP Guidelines, which are virtually identical to the AAP Red Book, contain a single reference to family history in its table of contraindications and precautions. Given this, and given that SB 277 substituted the term “contraindicate” with “not recommend,” how can the subject amendments in SB 277 be construed as anything other than an enlargement of physicians’ discretion? (See State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2008) 44 Cal.4th 230, 244 [“ ‘We presume the Legislature intends to change the meaning of a law when it alters the statutory language [citation], as for example when it deletes express provisions of the prior version…’ ”].)

(2) In Section 120370(a) as it existed before SB 277 was enacted into law, did the term “contraindicate” possess any special meaning? Specifically, is there any reason to believe that the term included or excluded “precautions” like those listed in the ACIP Guidelines?

(3) Petitioner argues that SB 277 created a stand-alone standard of care. Does Section 120370(a), as it then existed, read like other statutory standards of care? (See, e.g., Galvez v. Frields (2001) 88 Cal.App.4th 1410.) Which part of the statutory language for example, informed the physician’s determination that immunization was not considered “safe?”

(4) Assuming that SB 277 did not create a stand-alone standard of care, but that it did authorize exemptions based on conditions or circumstances beyond those supporting the contraindications and precautions in the ACIP Guidelines or the AAP Red Book, what standard governed the physician’s determination that a vaccine was unsafe for the patient?

(5) Respondent’s Accusation against Petitioner did not refer to Section 2234.1, but Petitioner’s First Amended Notice of Defense did refer to that section. At the administrative hearing, who bore the burden in connection with Section 2234.1?

(6) Assuming that the court grants the petition on the ground that the Board applied the wrong standard of care, should the court reach any other ground for relief raised in the petition?”

Let me just say that I discussed the issues which the judge identified above in very great detail, and my basic point is that the Board used the wrong standard of care which means it didn’t make its case because the board has the burden of proof. For sure, it’s a technical argument, but my experience is that judges have a thing about technicalities, even if (or especially when) the government is involved.

That’s about all I want to say now. Miles to go before I sleep, preparation wise for tomorrow, but I will say that I am both hopeful and encouraged that he is approaching this in a methodical and logical manner, which is all a litigant can ask for, and in my view, means it works out.

Anyone who wants to watch or listen should be able to follow it on zoom I believe.

Fingers crossed, positive energy, send a message to the field or whatever.

Rick Jaffe, Esq.

13 thoughts on “Major Update in Ken Stoller’s Medical Board Appeal, and it’s not half bad

  1. Thank you for everything your doing and keeping us all updated. One question I have is are the medical exemptions Ken Stoller wrote still good since his case isn’t finished yet? I read an article for the 2021 upcoming Scholl year that said any Drs name that’s on the list of discipline by the courts etc them exemptions they wrote are now void. Dr Ken Stoller’s name is on that list.

  2. You got this Mr J !! Have faith and don’t show your cards here in blog as there are many eyes I’m sure!
    Any extra doubts and with recent news/events the judge “has” to re/consider decisions made.

    Thank you

  3. Oh my goodness – sending gigantic prayers to you and Dr. Stoller. A win is needed so badly

  4. Sending great energy and high vibration for your hearing tomorrow. May you and Dr. Stoller come out of this victoriously!

  5. Great work today! Thank you. Hopefully this judge makes a call as it “sounds”!he hears where your coming from than the previous judge.

    How can anyone listen to that Blubberberg “ their key expert”, please!!
    Boy that Mercer is full of it!
    IMHO

  6. Ken Stoller and Rick Jaffee !! Win or lose, I propose a toast to you and you each deserve a statue somewhere. You have come so far and worked so hard and you didn’t give up. This is what Jacque Simon and Michael Machat Esquires and I were hoping for: an objective judge to analyze the law and deliver a judgment based on the law without political bias. Of course, if you win, the wolves on the Medical Board will appeal but you (we) can fight that battle when it comes. You have hundreds of thousands behind you. I will encourage the few thousand listening to me to send financial support. May you arise like the phoenix of Greek mythology and slay them all like Sitting Bull at Little Big Horn. (Sorry, Custer)

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