Status Report on the Covid Misinformation Situation for California Physicians and other interested parties (in western states)

Status Report on the Covid Misinformation Situation for California Physicians and other interested parties (in western states)

There have been a lot of papers flying around the state in various court cases, so it seemed like a good idea to tell the vaccine-concerned physician and lay community where the law and cases stand.

Soapbox Speech

Before I get into the AB 2098 lawsuits, let me relate where we are on the pre-AB 2098 soap-box speech Covid misinformation investigations by the medical board which started in late 2021 and early 2022. So far as I can tell, there were only four such investigations. My client/plaintiff Doug McKenzie, Mark McDonald (lead plaintiff in the AB 2098 lawsuit), and two other docs who I will not name.

I have previously relayed that the board’s investigation of Dr. McKenzie was terminated shortly after I filed a lawsuit against the medical board. (And like with VAERS, no causation, just a temporal association).

I can now report that all of the other three soap-box speech board investigations have also been terminated. (The board is still investigating one of those doctors, but it is for conduct unrelated to Covid misinformation.) I haven’t heard of any other investigations, and arguably there should not be any more because I read the legislative history of AB 2098 as a legislative acknowledgment that the board can’t stop doctors from speaking out in public about any matter of public interest. So, that part of the Federation of State Medical Boards’ invitation to medical boards to go after doctors for spreading Covid misinformation is over, in California at least, (or so it seems it me.)

Unfortunately, it is alive and well in other Western states. A Washington state doc is going to hearing in a few months for newspaper columns he wrote. I think that is appalling. I am told that there is or will shortly be a federal lawsuit about that and other such Washington board cases. Good, there should be, and I think they will win. New Mexico has a Board policy implementing the Federation’s Covid misinformation policy/press release. Colorado also has something on the books. Both of those states include soapbox speech as potentially disciplinable conduct.

I also know that some other western states and investigating doctors for Covid misinformaiton. But it gets complicated because the investigations also involve treatment decisions, or public pronouncements about their use of off-label Covid treatments, and that gets tricky since prescribing treatments is within the heartland of what medical boards do.

But after all the dust settles, I am confident that the Federation’s attempt to have its members sanction doctors for what they say in public will be rejected by the courts.

Getting back to AB 2098

The good news

As of today March 9, 2023, there is a preliminary injunction barring the enforcement of AB 2098 (now Bus. & Pro. Code Section 2270), the Covid misinformation bill. To relate the details: Judge Shubb issued the injunction in two related cases, Hoeg v Newsom, a lawsuit which had 5 individual physicians as the plaintiffs, and our case, Hoang v. Bonta, brought by an osteopathic physician and two organizations, Physicians for Informed Consent (PIC) and the California Chapter of Children’s Health Defense.

PIC is an organization that disseminates information about vaccines, advocates for voluntary vaccination (as opposed to and opposes mandatory vaccination), and consists of physicians, scientists, and laymen. From my perspective, PIC is basically the main physician organization in California that fights vaccine mandates. Prior to the pandemic, they held a couple of well-attended conferences which brought some of the leading advocates for voluntary vaccination (and against mandates), including the late great Toni Bark, CHD’s Bobby Kennedy and Mary Holland, and others (me being one of those others).

The reason I am relating these details about PIC is that Judge Shubb who issued the injunction threw the parties in both cases a curveball. Usually, the remedy for a successful facial constitutional challenge to the law is that the law is enjoined period. But Judge Shubb limited his injunction to the parties who filed the two lawsuits. I’m not sure that is correct, but you know, don’t look a gift horse in the mouth and such.

The effect of Judge Shubb’s ruling is that it only stops the board from investigating the five plaintiff doctors in the Hoeg case, Dr. Le Trinh Hoang in our case, plus PIC and its members and CHD Cali.Chapter. There is nothing in Judge Shubb’s order which affixes a membership time frame. So my view is that any California physician who wants to be protected against a medical board investigation should join PIC. Then, if the doctor receives notice from the medical board that it requesting information about Covid related information, the doctor should just write back saying that the investigation is barred by a preliminary injunction and attach your PIC membership card (or whatever proof of membership it gives). FWIW, like any kind of immunization, I don’t think PIC membership will work after you receive notification of a board investigation. So consider PIC membership as insurance (and to support the cause).

The other cases

The AB 2098 case that was filed days after Gov. Newsom signed the bill was McDonald v. Lawson. Their preliminary injunction motion was denied initially and their case was dismissed on standing grounds. But their lawyers quickly and nimbly refiled the case with better-standing allegations. A hearing on the injunction case was held in mid-December. In late December, Central District Judge Fred Slaughter denied the injunction motion, holding that the law was constitutional because it was rationally related to an important government interest, namely to protect patients from doctors providing misinformation that could hurt or kill them.

The judge specifically cited the legislative finding that the unvaccinated are 11 times more likely to do from Covid than the unvaccinated. As most of you know, this is false. However, the McDonald case was basically a pure First (and Fifth Amendment vagueness) case and did not present evidence to the judge (at this early stage of the case) about this or any of the other Covid misinformation data in the legislative record. That was in contrast to our case and the Hoeg case, where there were detailed evidentiary declarations explaining why, among other things, there was no “contemporary scientific consensus.” In fact, our expert declaration explained in detail why the whole “11 times greater death rate amongst the unvaccinated” was wrong. We and the attorneys in the Hoeg case had a different idea of what it was going to take to get a judge to issue a preliminary injunction. Maybe that explains the difference in the results. But, sometimes it is just the luck of the draw of the judge. At the end of December, the McDonald attorneys appealed Judge Slaughter’s decision.

The Fourth case

Couris v. Lawson was filed in the California Southern District. After the case was reassigned, it was eventually scheduled to be heard in early February. However, a week before the hearing, the judge removed the case from the calendar and stayed it pending the resolution of the McDonald’s appeal, because the judge said that the appellate decision would impact that case.
The Couris attorneys were not happy with that and so they appealed the judge’s stay order and moved to consolidate its appeal with the McDonald appeal, and the appeals were consolidated.

We tried and failed to intervene in the McDonald appeal

The Hoeg lawyers decided to support Judge Shubb’s decision by submitting a very excellent amicus brief. We chose a different and admittedly unprecedented path.

Because the AG’s office decided not to appeal Judge Shubb’s ruling, none of the evidentiary declarations in either Hoeg or our case would be before the Ninth Circuit. I thought that was a problem because while Judge Shubb did cite a number of facts from the declarations in both cases, he did not discuss some very important scientific facts in our expert declaration, which I thought the appellate court should be made aware of.

There is no obvious way to present the record in another similar case. Therefore, I decided to try to “intervene” in the case and attached the complete record in our case as exhibits to our intervention. That has never been done before, but then, it is pretty unusual for a government not to appeal when a law has been enjoined. Plus, despite the lack of precedent, the motion seemed to comply with all the requirements for intervention. So we gave it a try.

One thing we did accomplish: The oppossing parties to any appeal rarely agree on anything, but both sides agreed that they didn’t want us in their appeal! Admittedly, the Appellants were none too happy about our motion. But, we already had an injunction protecting all California doctor who want such protection. Our job was to protect that injunction, and if that required to argue that our record supported an injunction, even if the McDonald record did not, well then the argument had to be made. (Ironically, although the four docs in these two cases are heroes, and their lawyers are luminaries in the pantheon of constitutional warrior litigators, right now, the only thing which could eliminate the protection that California physicians have from Judge Shubb’s decision is the McDonald appeal, if the Ninth Circuit affirms Judge Slaughter’s opinion and writes broadly. But that’s just the nature of constitutional litigation with multiple cases. But I digress,

The 9th Circuit’s two-judge motion panel agreed with the parties to the appeal, and our intervention motion was denied, without opinion.

Still, the record in our case is part of the appellate record. Maybe some judge or one of their clerks will read the declarations, or maybe they won’t. But, it was worth the shot, or so I think. And maybe, it might help convince the appellate court that even if it’s going to affirm Judge Slaughter, it should leave Judge Shubb’s decision stand. We’ll see how it shakes out.

So where are we on AB 2098?

Sometime in the next 5-12 months, the 9th Circuit will issue its decision. If it broadly affirms, the AG’s office will then move to dismiss all four pending cases, and there is a good chance they will prevail, but only if there is a broad affirmance. If the 9th reverses, my guess would be it orders a rehearing or reconsideration by Judge Slaughter because he used the wrong standard (he used rational relationship, but he should have used at least intermediate scrutiny). In that case, there is a good chance that Judge Shubb’s decision will survive.

But in the meantime, and I reiterate, if you want to be protected by Judge Shubb’s preliminary injunction, you should join PIC, sooner rather than later.

Rick Jaffe, Esq.

3 thoughts on “Status Report on the Covid Misinformation Situation for California Physicians and other interested parties (in western states)

  1. I think you said somewhere else, the basic problem is the bench starts from the assumption that the CDC knows what its talking about (IS RIGHT)…so your case had to prove that it doesn’t but that revelation was very limited and didn’t spread to other judges who still think the CDC is right.

    Lots of testimony in congress and peer-reviewed papers as well as some very good documentaries are reinforcing and proving that the CDC is FOS along with the WHO, FBI, DOD, NIH, etc. but that will take years to soak into the bench. So until then the only way to win is prove in court that the CDC is wrong…using plenty of good citing from acknowledged experts.

  2. I have a 412pg PDF (growing bigger even today as I catch up on new data that came out in the past few weeks) …that includes a reference to a CDC peer reviewed study:
    Titled: Underlying Medical Conditions and Severe Illness Among 540,667 Adults Hospitalized With COVID-19, March 2020–March 2021
    • Centers for Disease Control and Prevention
    – A HUGE STUDY – lots of hospitals and lots of patients – showing who was at risk of hospitalization and death from COVID itself. Discussed by DR BEEN:
    And, ON TOP OF THAT or added to THAT, let me mention a few pages too just after that CDC study insert showing what what killing folks who got COVID (Here again Dr Been who is now is part of group – as he talks about it the COVID-19 BLOOD STUDY here:
    This paper he speaks about is titled:
    “Physical phenotype of blood cells is altered in COVID-19”
    THERE if you got all of that… THEN…
    — From those results (we can form a combo of the CDC at risk study, and European COVID affected Blood Cells study – mash those two published studies together & sprinkling on some CH3OH related research from Dr Woodrow Monte’s book titled: WHILE SCIENCE SLEEPS = specially the read in chapter 7 about the affect of CH3OH on ALL blood vessels (all over the body) and only THEN do you have the FULL PICTURE – please email me and I can get into ALL of that as it is a lot, it is really really simple to understand, OH and once you grasp it, you will understand that you “ain’t in Kansas anymore”…) — ALL COMBINED and we have something fully plausible and defendable as a result. Meaning, the COMBO, is something THAT FULLY explains that CDC peer reviewed paper’s observations, and further supports and shows how & whoever were in the at risk classes identified by the Aug of 2020 extensive peer reviewed CDC published peer reviewed paper… SHOWING in the research by combining those two papers exactly whoever were indeed at risk – and YES today, that same class who are typically not in good health at all, in fact typically the worst of health, at the time when COVID (altering their blood cells) arrives in their bodies. THEY are still at risk – BUT IT IS NOT EVERYONE, and the CHILDREN typically (99.99+ percent) are not at RISK when COVID itself or western Variants are in the picture! However – WE JUST DO NOT KNOW about anything coming out of CHINA TODAY as this is written – as there is the plausible situation where a deadly (maybe more so than the original COVID) Variant that mutated in CHINA is now migrating out of CHINA. YES, it has been sequenced and some reports do not paint a happy picture – due to some “stories” of it in CHINA where it has been described as more severe than other variants (at a rate of 80%). BUT, CHINA has prevented anyone from outside into CHINA to study it. SO WE REALLY DO NOT KNOW? ONLY that stories have it that they are experiencing something that seemingly is “80% of the cases are classified as SEVERE). That unknown number is troubling. AND, since they have loosened up travels, people have been leaving CHINA with this variant, and it has been sequenced in ITALY as passengers from CHINA flying to Italy have been looked at. WHAT was found is that this variant has an “immune escape foci” – identified in sequencing of THOSE airline passengers from China who land in Italy – that is NEW data. AND, what that means is that it can get around existing anti-bodies (Vaxxx I assume, but maybe might be so NEW that can bypass even natural immunity related B-T cell defenses). None-the-less, in any case, the Vaxxx will not help the folks with compromised immune systems and blood vessels, forget about the white blood cells, but alone are at risk due to a Red Blood Cell (all blood cells) paper that came out of Europe in July 2021 showing WHY those in the CDC peer reviewed study were at risk (OH- neither paper is connected, it was because I was studying something else that I was able to relate the two – and like pieces to a puzzle, they fit perfectly (most plausible, very hard to refute, or come up with some other reason). The RBC (red blood cells) with COVID patients STIFFENED or became less deform-able, AND the IRONY is that every single CLASS of at RISK that the CDC peer reviewed study presented, ALL most likely have compromised auto-immune affected vascular systems (STIFF typically) resulting in difficulty of the RBC to even get into the damaged capillaries of said patients. OH- Spike protein from Vaxxx has been proven (Dr Bhakdi) to cause an attack (auto-immune) on blood vessel walls of capillaries too – resulting in inflammation, blockage of BLOOD, etc (strokes, heart damage, etc)…
    PS – again my collection (I have Asperger’s and I can not resist a rabbit hole), is well or far beyond the 412 and growing SMALLER version – as of TODAY.

  3. I was not surprised to find out Pan and Weiner were co-authors. Those two scare the hell out of me. I’m happy to have found your blog to follow. What fascinates me about AB 2098 is the absolute dystopian nature of the bill.

    Putting all the legal arguments and medical science and date aside, how can any sane Court uphold a law that precludes and obviates the very nature of scientific research and development? The Court would be denying the nature of science and man.

    The contrived definition of misinformation, “false information that is contradicted by contemporary scientific consensus contrary to the standard of care,” contradicts the evolution of science and discovery because there is no such thing as “consensus” in science, but the authors know that. EVERYTHING can be challenged, and it cannot be legislated away. If there was consensus in science, that means no one would question anything, and we’d all still be living in caves wearing loincloths!

    I think it’s funny the CDC and WHO and NIH are guilty of misinformation every time they issue a new set of rules.

    It’s such a shame intelligent people now need to pretend this nonsense has merit just because it has an “AB” in front of four numbers. What a waste. I can’t think of anything more difficult than making a cogent argument for or against bovine manure. I think I would start giggling uncontrollably at myself in court, and I don’t mean that to be taken offensively. It is serious, and we are in deep trouble.

    Thanks for what you are doinng.

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