Federal District Judge Slaughter denied the Plaintiffs’ Motion for a Preliminary Injunction stopping AB 2098 from going into effect and dismissed the complaint on standing grounds.
However, he did give the Plaintiffs leave to refile to correct the standing defect.

Here is the decision.
Slaughter’d

This was not a close case, and it’s not about the system being against people with a particular belief. The Plaintiffs did not adequately plead that they had the right to challenge the law. I don’t see how any psychiatrist (and lead plaintiff McDonald is one) has the right to challenge a law about what a physician can tell patients about taking the Covid shot or Ivermectin. I mean it’s not in their lane.

I can only think of one specialty which would have even less standing than a psychiatrist, and that would be a pathologist. None of their patients pay attention to what they would tell them.

My recent post about the case mentioned the catch-22 or doctor’s dilemma in trying to satisfy the standing allegations; it’s a fine needle to thread when the target is a law enforced by the medical board and where the board has the power to investigate to make sure a physician is following the law, and where the board says it already has the power to sanction docs for Covid misinformation (and yea, if so, then why do they need this damm statute? It’s a good question.)

And I’m wondering if Judge Slaughter’s decision will give the lawyers in the next case up (Hoeg v. Lawson) any pause to rethink their case. Their standing allegations are a little better, but they do have some docs where it’s not clear that they are in the business of advising patients about Covid matters. (They also have a psychiatrist, and they have an ER doc, and a rehab doc, and I’m not overwhelmed by the specificity or details, of the allegations, so they could suffer the same fate as in the McDonald case.) The AG’s response to the preliminary injunction papers are due, very soon I would think. Otherwise, it’s going to be hard for the court to keep the December 12th hearing date. (And FYI: I am not involved in that case and I have no inside info whatsoever)

And lest anyone think I consider myself better or am being smug, I remind you that I got knocked out on standing grounds in the McKenzie case. But of course, that was because the Medical Board dismissed its Covid investigation of Doug McKenzie after I filed the complaint challenging the board’s right to investigate alleged Covid misinformation to the public. The judge ruled basically, no harm, no foul, no standing. But to repeat, they did drop the investigation, so as a board lawyer, I’ll take the partial W, thank you very much).

Still, this standing thing is a tough nut given that the medical board has the power to investigate physicians to ensure compliance with the law. I feel for the plaintiffs and their lawyers in these two cases. I think it’s going to get interesting soon.

Rick Jaffe, Esq.