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A Detailed Summary of Kelly Sutton’s First Hearing Day (6/14/2021)

A Detailed Summary of Kelly Sutton’s First Hearing Day (6/14/2021)

For those of you who want a blow-by-blow of what happened at Kelly’s Sutton’s hearing, you’re in luck because Kelly took very detailed notes of the first two days of the hearing. (She testified on the third and final day and so didn’t take notes). I think we made some excellent and needed points, but judge for yourself. Tomorrow I will post her notes from the second day of the hearing which contains the testimony of our other two experts, Drs. Jim Nerenschwander and Le Trinh Hoang.

If you haven’t contributed to her legal defense fund and want to, here is the link:

Kelly Sutton’s Notes of The First Day of her Medical Board hearing, 6/14/21


Greg Chambers: This is a simple case. Medical exemptions were written of indefinite duration for all vaccines, not targeted for certain vaccines.
I expect arguments based on 2234.1.
There is no expectation of therapeutic gain from withholding normal treatment.
Minority view is not defensible because science referred to has been debunked.
Dr. Sutton does not have the training or experience to make decisions regarding medical exemptions. She lacks basic medical knowledge. Her license should be revoked because she is cannot be rehabilitated.

Rick Jaffe: I will give some context– how we got here. And explain what we hope to prove.

The statute in question has two important parts.
Vaccine exemption is not a medical diagnosis, but is a legal construct. It exists because the law says it exists, originally in the narrow context of contraindications when Personal Belief Exemptions existed.
After measles outbreak, it was determined that 37% of measles cases were of vaccine origin.
SB 277 removed Personal Belief Exemptions. Due to the public outcry, there was a trade-off in making the law because of complaints against the lack of real availability of medical exemptions.
Assembly Health Committee, please see Exhibit A, there are two points of note. Senator Allen spoke in response to the complaints that no one could qualify for a medical exemption, and said ‘we’re making this broader, and the ACIP / AAP would be apoplectic if they knew.’ Senator Pan said ‘a doctor can give a medical exemption for a problem with a cousin.’
Physicians for Informed Consent PIC made guidelines for writing medical exemptions under the statute, using a standard of care based on the words of the statute.
The statute as written appears to give physicians the authority to go beyond ACIP guidelines. Effectively, SB 277 created another standard
These cases. Case 4,7, and 8, were written based on the medical condition or vaccine reaction of the patient, not on family history.
Dr. Lehmann is a Pediatric Infectious Diseases specialist. She deals with common and rare infectious diseases, diagnosis and treatment of individuals, and protection of the public.
Effectively there are 6 pages that constitute the ACIP guidelines in toto, and some of those pages are half-blank.

Our first witness is a Pediatric Neurologist, who will address mitochondrial dysfunction in two patients who in his view need medical exemptions in spite of ACIP, and he will discuss the supporting literature some of which he has written.
Our second witness is a primary care physician with a specialty of treating the vaccine injured. He brings the concept of immune activation, and shows its relationship to mitochondrial dysfunction. This is a different perspective than the infectious disease specialist’s point of view
Then we have a primary care physician who is in the trenches treating patients. And Dr. Sutton will testify.
Dr. Lehman raised the issue of vaccine safety ?
How does someone go 40+ years of medical practice without a problem and now be called incompetent?
This group of physicians looked at the new law, consulted an attorney, and came up with different view. It looked like there was another standard of care. There is lots of case law to support this action.
The Medical Board of California never put out guidelines instructing doctors. That is an important mitigating factor. We are not really dealing with incompetent doctor. We wouldn’t be here today if SB 277 were clear.
There is in fact now no way anybody could know who could have a serious adverse event and be vaccine-injured. This approach is broader, different, and keeps children safer than the narrow ACIP guidelines.
GC calls Deborah Lehman
GC: Are you licensed?
DL: yes, in 1989, I’ve been practicing 31 years. I worked in Kaiser Permanente Infectious Disease in 1994¬1995; I did not do any studies. I published in peer-reviewed A65-66 journals and in the textbook by Ku and in Rudolf’s Pediatric Infectious Diseases book. I am an editor for Journal Watch for New England Journal of Medicine. I write for Knowledge Plus to help doctors prepare for boards. I educate medical students about pediatrics including vaccines’ impact on public health. I lecture on the vaccine schedule once a month. I explain its importance and why it is the way it is, how it is arrived at. I have conversations with people regarding questions about vaccines and with people who are experiencing vaccine hesitancy.
GC: I would like to admit exhibit 4, CV for Dr. Lehman.
DL: The vaccine schedule is developed by the Advisory Committee on immunization Practices and the Center for Disease Control. It is put out yearly. Other professional societies endorse it, for example, the American Academy of Pediatrics, the Academy of Obstetrics and Gynecology. (NB: they don’t discuss they endorse! MKS)
Doctors refer to ACIP guidelines to know what to give and when to give it, and how close together, and what can be given at the same time. The schedule is developed to keep children and communities safe.
GC: 2015 legislation was regarding guidelines.
DL: Guidelines change all the time. Physicians are notified. (NB How? Did I overlook regular notices from ACIP??? I am obviously tracked scrupulously, but the same tracking mechanism is not informing me scrupulously. MKS) CDC notifies physicians. The Morbidity and Mortality Weekly Report for example announces the new flu vaccine yearly, along with precautions and contraindications.
CDC and ACIP guidelines allow physicians to make a risk/benefit analysis and consider contraindications and precautions for medications and for vaccines. Anaphylaxis is a contraindication to penicillin or to a vaccine. (NB: Docs give pcn to sick people worthwhile risk of anaph; vacc are given to healthy MKS)
For HIV patients, most vaccines are OK. CDC gives guidelines for the degree of immunodeficiency-¬according to the number of T cells, etc. It is not a blanket yes or no. Patients with Crohn’s can receive vaccines if they are on immunomodulators. Not all vaccines are the same. They are very different including the covid vaccine. There are live viral vaccines, live attenuated, such as Varicella Zoster, MMR. The decision must be made on the individual vaccine. (NB This dramatically increases the burden of proof on the exemptor, to find evidence from a system that is designed to limit the existence of adverse evidence. MKS) An exemption must NEVER BE PERMANENT FROM ALL VACCINES because it doesn’t make any biological sense. (NB This sets up the wrong default. This default is the vaccines are de facto perfect. The fact is the human physiology is de facto proven successful by test of time and is the default. Intervening must be proven. The ‘biological sense’ is the final common pathway of inflammation, which all vaccines do or they cannot be called vaccines. The real ‘biological sense’ for permanent exemption from all vaccines is when the PATIENT’S HEALTH cannot endure more inflammation, the chronic immune activation. The patient’s health is individual, the vaccinations are cut of one cloth, the cloth that produces intentional inflammation. MKS)
RJ questioning DL
DL: CISA I am not familiar. I work with standards of care for pediatrics practice, and for vaccinating children.
RJ: Exhibit 3
(I missed some here MKS)
DL: A simple departure is one that leads to no harm, for example, incomplete notes.
Extreme departure is one that leads to adverse outcomes, one which a doctor knowingly could recognize harm could come from an action or inaction. A reasonable physician in a similar situation would make decision differently. Reasonable decision making by a physician with respect to patient’s presentation. It is an extreme departure if a similar physician would take different action. If it departs from traditional expected understood treatment.
GC: The term ‘neurologic vulnerability’– is it a contraindication or precaution?
DL: It’s not a medical term. (NB: It’s a medical term if a doctor uses it to identify coherently a pattern of findings. There is reason behind my using it. Dr. AZ’s science explains what is happening with many children with ‘neurologic vulnerability,’ tendencies to sensitive nervous system that manifests tics, stuttering, enuresis, sensory issues. This child may have a metabolic abnormality. There are ‘soft signs’ on neurological exam, a similar use of language to indicate a group of abnormalities that may or may not be enough to make a diagnosis. MKS) The term ‘immune activation syndrome’ — vaccines do this (NB: she considers all vaccines as a whole right here, and provides the biological sense to exempt from all vaccine: viz, their action MKS), a pathogen does this. Immune activation syndrome is not a real medical term.
Is this a contraindication or precaution defined by ACIP?
DL: No
Mitochondrial dysfunction—is this a medical term?
DL: Yes there are mitochondrial defects.
Is this a contraindication or a precaution for vaccinating?
DL: Mitochondrial defects are not listed. They are very rare disorders.
DL: AB is there any record of physical exam? p. 121 is the chart notes. Meningitis occurred at 11 months. Meningitis is preventable by 3 vaccines. Pneumococcal is the most common type of meningitis. Also Hib and another. We rarely see meningitis today. It is a vaccine success story.
DL: Family history of a vaccine reaction is not a contraindication to vaccination in a patient. 3rd cousin has a movement disorder. There is no definable contraindication. Covid vaccine has brought the pandemic under control. Yet Dr. Sutton exempted this child from lifesaving vaccines in the future. We need the record to see what type of meningitis this was, because the patient may be at risk of further meningitis and would need additional vaccines.
Patients with recurrent ear infections have increased susceptibility to Strep. Pneumoniae. Therefore, give extra vaccines to these children, the polysaccharide pneumococcal vaccine. This child is likely eligible for more vaccines. Father having had meningitis; it would be interesting to know what kind because important to know for the child. (NB Fam hx /heredity /genetics given relevance by this statement– MKS)
There is no record of physical exam on this patient. There is no contraindication to give reason for a medical exemption.
GC: Is it important to receive records from the primary care provider?
DL: If I am a consultant, making decisions, I always review past history and communicate with the referring doctor. The PCP needs to know what happened.
DL I don’t do primary care pediatrics so I always relates to the primary care provider.
GC: Was there a good faith exam of patient prior to the medical exemption me being written?
DL: I didn’t see that.
GC: Did Dr. Sutton provide reasonable potential of therapeutic gain by exempting patient from vaccines?
DL: Patient was placed at greater or less risk. Exempting from all vaccines increases risk of the child developing additional infections. It is a departure from the standard of care, extreme because the medical exemption was permanent and without any real indication.
CASE 2 MB No physical exam is evident. There is a question if the visit was in-person or by phone. There is no indication of physical exam prior to the second permanent medical exemption, or of having met with the physician.
Is there a vaccine reaction that would exempt a child from all future vaccines?
Not that I’m aware of. We give several on one day. If anaphylaxis occurs, it is hard to determine which one caused it. We have to sort that out. That certainly does not exempt the person from future vaccines.
There were no defined contraindications or precautions prior to providing ME. No medical records appear to have been sought.
Genetic testing was discussed at the time of 2nd ME. Were any other records sought from pcp?
I didn’t see any.
With regard to family history – was there any significant chronic underlying disease?
Sensory processing disorder tendencies require follow up.
There is lots of family history but it is not relevant.
Aluminum is intentionally added to vaccines. Aluminum is not a reason not to vaccinate. The CDC explains why it is used and why it is not a concern.
Does the CDC accept autoimmune disease within the family as a reason to not vaccinate the child?
We vaccinate patients with systemic lupus and dermatomyositis. The American Study for Rheumatic Diseases has guidelines for vaccinating patients with autoimmune disease.
SNPs are small genetic variations We are not all the same. They indicate an amino acid substitution. (NB actually a NUCLEIC ACID substitution—MKS) We all have those. I see a medical exemption based on SNP variation, but these are common, are normal. They are not relevant to vaccine reactions. (NB we don’t understand them fully, but definitely the difference in vaccine reactions between one person and another has some kind of genetic or other identifiable base. Do we ignore emerging information that is not yet complete? Or do we use it to try to protect patients? MKS)
GC: Did the patient seek Dr. Sutton for the purpose of getting a medical exemption?
DL: — looking for intake
Based on records, there was no good faith exam before either ME.
GC: Did writing first ME provide reasonable potential for therapeutic gain?
DL: ME for 1 year placed the child at risk for that 12-month period. Risk is greater than any possible benefit.
GC: Did permanent exemption provide reasonable potential for therapeutic gain?
DL: No– it created further risk for life or for the next few years.
GC: Did you see any contraindications or precautions that the CDC would have accepted?
DL: No
GC: Was this departure from the standard of care?
DL: Yes, Extreme departure. (NB But it is not extreme enough departure from standard of care to misdiagnose sepsis resulting in loss of hand and foot, or to have obstetric issue with death of baby/mother? These doctors received no disciplinary action. — MKS)
Patient 3 I can’t tell if visit was by phone or in person. There is no physical exam. Does the chart give evidence of the current state of health? It is hard to interpret what is about the patient and what’s about family members.
Was raw milk recommended?
What is the medical necessity for the child to consume raw milk?
We recommend against raw milk because of outbreaks of infections which are not vaccine-preventable. Raw milk can be quite dangerous.
There is no sign of physical examination. The parent came for the appointment in order to get ME. There is no evidence of reaching out to the PCP. I see no request for medical records.
This patient had chickenpox. A child can get the chickenpox vaccine from age 12 months onward. What is the damage to the child if the child is not vaccinated?
Uncomfortable rash, but also 110 people die every year, some of them are immune compromised. You can get toxic shock with bacterial superinfection of chickenpox, severe pneumonia, meningitis, post-infection encephalitis. (NB: IOM found consistently supportive evidence that chickenpox vaccine can activate disease, and I believe there is pneumonia, encephalitis from vaccine also—MKS) Reactivation chickenpox occurs with shingles. We encourage shingles vaccine for age 50 +. Usually benign.
Certain children cannot receive the vaccine for chickenpox—for the immune compromised, this vaccine was developed — for children with leukemia who died because of chickenpox. For leukemia patients with maintenance therapy. We count on the community to be vaccinated, so chickenpox is not circulating in kindergarten classrooms.
GC: Did ME provide potential for therapeutic gain ?

DL: No, it placed the child at continued risk for further infections. And permanently.
GC: Was there a good faith exam?
DL: There is no documentation of that.
GC: Was there any contraindication and precaution based on ACIP guidelines for this patient?
DL: No
GC: Was the treatment of the patient a departure from the standard of care?
DL: Yes.
GC: Was it simple or extreme?
DL: Severe. Extreme. A permanent exemption from all vaccines is extreme.
Patient 4
DL: There is no in-person visit documented. I see no physical exam. I am referring to the audio interview regarding no physical exam. There were no records requested of the PCP. There were no vaccine contraindications or precautions identified according to ACIP guidelines.
GC: When do you ask for the medical record?
DL: If assuming care or if consulting for example, a developmental pediatrician or neurologist. But if you want to assess the safety of vaccines, autism is not relevant.
GC: Are there any records other than the vaccination record? There is a paternal uncle and paternal
cousins with learning disability and ADD, so would you consider those contraindications or precautions by CDC guidelines?
GC: Was there a good faith exam prior to issuing the ME? Was there reasonable potential for therapeutic gain that outweighed risk of the healthcare method?
DL: No. There is not any contraindication or precaution with regard to family history in relation to ACIP guidelines. No.
GC: Was respondent’s treatment of Patient 4 a departure from the standard of care? Simple or extreme?
DL: Yes. Extreme because the ME was permanent and from all vaccines.
PT 5
DL: I can’t tell if the patient was present when ME was written. There is no evidence of a physical exam. There is no evidence of respondent reaching out to the prior pediatrician.
GC: Is genetic testing of importance to a doctor working within the standard of care?
DL: No, genetics shouldn’t be used to exempt anybody. It is misrepresented to use genetics to predict vaccine reaction. That is outside the scope of the scientific medical community’s understanding. This is not science. (Medical caste system – MKS)
GC: Any contraindications or precautions seen?
DL: The child screamed after initial vaccinations. I would counsel the family and provide anticipatory guidance. I would not recommend leaving the child unprotected.
GC: There is a lack of physical exam prior to 4/17 and failure to request prior med records, do you believe there was a good faith exam prior to me being written?
GC: Was there a therapeutic gain in patient’s medical condition that outweighed the risk?
DL: We have a vaccine that prevents against cervical cancer. And this child is exempted from protection going forward, not allowing her to have protection from that virus.
This is a departure from the standard of care, extreme because it is missing the opportunity to prevent this child from infections and cancer in the future.
Patient 6
DL: No physical exam, no in-office visit. (OVERLOOKED NOTE LATER SEEN UNCLEAR WHETHER IN PERSON)
Patient’s family was requesting ME. The father’s request to avoid his experience of adverse reaction is not a reason for a ME>
GC is there any contraindication or precaution pursuant to CDC guidelines?
DL: The family mentions a lot of infections, but that is reason to be sure you’re vaccinated. Father’s reaction is to flu vaccine. Pneumonia, ear infections, sinus infections—we have vaccines that can prevent these. (NB Many are viral for which there are no vacc, chlamydial, fungal—MKS) Headaches are irrelevant to the administration of vaccines.
There are no contraindications or precautions present. There was no request for records or discussion. No physical exam recorded, therefore no good faith exam prior to issuance.
GC: Was there reasonable potential for therapeutic gain outweighed by risk of not having the medical treatment?
DL: No. The risk of not vaccinating is greater. This is a departure from the standard of care, extreme because it was permanent for all vaccines.
Patient 7
DL: There are some records. I see no vital signs of physical exam. There is a Well child visit by prior provider, p A479, with physical exam.

You need to vaccinate more if child has asthma, immunize every year.
Based on the shot record, asks if good faith exam occurred prior to ME being written
GC: Any precautions or contraindications? Did ME provide reasonable potential for therapeutic gain in patient’s medical condition compared with risk to health of avoiding medical treatment?
DL: This is a departure from the standard of care, extreme.
Patient 8
GC: Were there any vital signs in the records? Was the respondent in the room with the patient?
DL: Can’t tell from the record. There was a febrile seizure and an ER visit. The high rate of rise of fever in febrile seizure is common in toddlers. There is no long-lasting effect. They aren’t associated with further neurologic injury or increased seizures in the future.
GC: Are febrile seizures a complication of MMR?
DL: Febrile seizures can happen from several vaccines. They can occur from MMR. But they are scary of course but benign because of no long-lasting effects. (NB since these are benign, let’s make no effort to avoid seizures. Let children have lots of febrile seizures. They don’t matter. No wonder the 5x higher rate of seizures after MMR than after measles is not a concern (1/250). And in families with a sib with febrile seizures, the risk of seizure after MMR is 1 in 50. It’s benign. Just have the seizure. It’s okay. MKS)
GC: Are there any other records beyond ER record?
DL: I don’t see any.
GC: Are there any notes of reaching out to consult prior to issuing ME?
DL: No.
GC: Is it common for febrile seizures to occur 1 yr after MMR?
DL: Febrile seizures can run in families. If they occur once, they can recur. Use aggressive Tylenol and ibuprofen. They are benign. There are no lasting neurological outcomes. I talk with families. If the child receives MMR at an age older than 12-15 months, there is slightly great likelihood of febrile seizure after MMR.
I want to know more information about the seizures at age 5 years. Did they occur with fever? Also wants more info about timing of —?vacc
I see no effort to get records I would get records if basing a permanent vaccine exemption on seizures.
GC: Is there any good faith exam evidence?
DL: No.
GC: Are there any contraindications or precautions pursuant to CDC ACIP guidelines?
DL: No. One wants more information and conversation with the family about the febrile seizures. The patient is well out of range of febrile seizures now. They are no longer relevant at time of evaluation.
GC: Is there a reasonable potential for therapeutic gain that was not outweighed by risk of exemption itself?
DL: The risk of not vaccinating is much greater. This is a departure from the standard of care. Extreme because it is a permanent exemption from all vaccines.
GC: Do you still agree with your written statement against the importance of aluminum in vaccine medical exemptions? page ?76
DL: I still agree page 83-84. Page 92 I still agree.
GC: 11-14 ‘come in within 12 months’ for office visit. Would any physician in CA issue ME for up to 12
months before seeing a patient? Do you know of any?
DL: Yes, but I don’t think it’s within the standard of care.
RJ: most of your patients are referrals and you do two things basically, figure out if a patient has an infectious disease that a referring physician couldn’t determine and second, see patients with ID diagnoses who have not responded to treatment as expected?

DL: Most patient are referrals yes. Mostly I receive referrals from PCP — I answer question whether the patient has an infectious disease, and if diagnosed infectious disease is not responding to treatment. That work is separate from teaching, academics. What kind of cases? In-patient, out-patient, I provide second opinions. I see vaccine hesitant families to help them to understand the risks of not vaccinating their child. I do provide primary care for HIV patients. I personally have not written MEs. I haven’t treated patients with suspected vaccine injury. Infectious disease whether exotic or common, and I fill a public health role to prevent the spread of disease at large. In 2014 I had patients exposed to the measles outbreak but who were unable to be vaccinated— I applied some public health help for them. (NB What does this mean? What public health help? Did she give vit A? If so, why only to those ‘unable’ to be vaccinated? MKS)
RJ: What is the difference between a contraindication and a precaution?
DL: Contraindication is a term widely used in medicine for example if a person is allergic to penicillin, there is a contraindication to giving that patient penicillin. No exemption is required because we have other antibiotics, and the child can attend school without penicillin. In the case of vaccines, a contraindication allows attending school without a vaccine.
RJ: Is the word ‘vaccine exemption’ in the ACIP document?
DL: No. The job of ACIP to recommend FOR vaccines and say how they are to be given. It is not their job to mention vaccine exemptions. ACIP compiles studies. (NB Are these studies listed somewhere? Have they been carefully reviewed by US? MKS) ACIP reviews the recommendation of other bodies. Medical professionals then provide exemptions, for example if a patient is on an immunomodulating agent then precaution is needed.
There are different kinds of exemptions that excuse the individual from treatment, for example religious exemption, medical exemption, personal belief exemption.
RJ: You would find out about a medical exemption by consulting the law.
GC: She can’t offer a legal opinion
JUDGE: Objection sustained.
RJ: Where does ME come from in CA? There were senate bills that were introduced. There were state bills about MEs. SB 277 eliminated personal belief exemption. Are you familiar generally with what happened? what role if any does SB277 in any of your opinions expressed today? Is consideration of 277 forming a basis of your opinion?
DL: I do know the law but I didn’t refer to it to make my opinion. It increased the number of MEs. But irrespective of law, physicians writing permanent MEs for all vaccines is outside the standard of care. The law is about school attendance. I’m talking about care of children. The law benefits the care of children. If they don’t have vaccines, they can’t go to school. It is based on the real importance of protecting children against these diseases. The law doesn’t impact my decision-making in that sense. (NB Nor does the standard of care impact my decision-making if I follow the higher standard of First do no harm— MKS)
RJ: MEs increased because personal belief exemptions and religious exemptions no longer allowed for school attendance. About 928 MEs pre-277 were written by oncologists and immunologists, correct?
DL: I don’t know what majority were for.
RJ: Are your opinions based on community std of care?
DL: Yes, the scientific medical community. I am not familiar with statutory standard of care. I am not aware of two sources of standards of care. (NB Yet she has implied there are two communities, the scientific and the other—MKS)
DL: If a patient is allergic to a vaccine component, that is a contraindication to that vaccine. Egg, neomycin – these are contraindications to that individual vaccine not to all vaccines. (NB How many vaccines contain egg? How many contain neomycin? Blumberg didn’t know in reviewing Ken’s cases. Would you exempt a child allergic to neomycin from all vaccines containing neomycin? Egg? If they reacted to one vaccine which contained egg? Neomycin? In the vaccines which contain egg, is there any other ingredient that could cause anaphylaxis? How do you know egg caused anaphylaxis? In the vaccines containing neomycin, are there any other ingredients that could cause anaphylaxis? How do you know neomycin caused the anaphylaxis? So, there are multiple ingredients in each vaccine which could cause anaphylaxis. How do you narrow that down? Does each case of anaphylaxis to a vaccine get cross-referenced to fully understand the ingredient causing the anaphylaxis? If not why not? What is the risk of death in anaphylaxis [up to 20%] How carefully is the allergy history of a child taken before administering a vaccine? In the pharmacy where vaccines are given? Is it true that the system for screening for allergies is less important than getting the largest possible number of patients vaccinated?)
RJ: What is an allergic reaction?
DL: It is an abnormal immunologic response that would not ordinarily happen in other people. It is from a specific part of the immune system. Signs of allergy–difficulty breathing, hives, rash, anaphylaxis– are mediated by a certain part of the immune system. The body is creating response. Most people don’t have it, For example, to shellfish.
RJ: What is primary vaccine failure?
DL: The vaccine doesn’t work, does not result in not enough antibodies. In the case of the covid vaccine, there is no recommendation to test antibodies because we don’t know that absence of antibodies means you have no protection. Not all ___ produce antibody response. We think we know what produces immune protection but we don’t know. (NB So we mandate it…MKS) Primary vaccine failure is very unusual. But it is possible that their cellular immune system would mount a response if exposed to the pathogen.
Individuals whether vaccinated or infected (NB vaccinated are treated as a group – they have a common characteristic – they are like the infected MKS) can have a significant immunologic reaction — it is very rare, Drevet syndrome. After a febrile illness or a vaccine, it leads to encephalopathy. These patients are thought to have vaccine reactions, but they are not vaccine reactions because the same thing would have happened with infection. It is very vaccine, rare. (NB Is this screened for? How are these people protected from encephalopathy from vaccine? MKS)
Our job is to investigate reactions, but not to exempt from future vaccines. (NB How do you investigate a vaccine reaction? Tests you do? What are some examples of the information gained from the investigations? What do you do with the information you learn? How do you protect the sibs/relatives of the person whom you have investigated? How do you protect other children? MKS)
We use aluminum to boost the immune response. It is not in live viral vaccines.
Family history is not a reason on which to base a medical exemption. (NB Have you so testified at the time SB 277 was passed? MKS) CDC has not recognized it playing a role. (NB CDC not recognizing does not mean it does not exist. It means the authority structure does not currently include that information. MKS)
Neurologic vulnerability is not a term physicians use (NB A physician used it, so I guess it is a term physicians use. MKS)
RJ: You don’t like ME letters being form letters
DL: They are not individualized for the patient.
RJ: Are you familiar with what the school requires for MEs? the checklist?
DL: I have communicated with other physicians and indicated if a child should not be vaccinated, for example if the child received gamma globulin, then I would advise giving no varicella or measles vaccine for 11 months in my note. If this was needed for the school, then I would communicate to the school. I have seen the forms for school. I haven’t completed one. The school wants form. I don’t know if they require specific forms.
Dr. Sutton made laundry lists of why children shouldn’t receive vaccines. That is my objection.
RJ: What is the risk of vaccinating versus the risk of not vaccinating?
DL: I have no answers but it’s a great question. The risk of not vaccinating is greater than the risk of vaccinating for each patient. Polio is not one of higher risk diseases except if you travel. Meningitis risks of developing _____ Measles has a mortality rate of 1/1000. This is in the Redbook page ___. Measles is not a mild disease. Late encephalitis can occur subacute sclerosing panencephalitis SSPE, pneumonia, encephalitis —you are not out of the woods if you get past measles.
I can’t tell a patient a number of risk. I move the discussion to seatbelts which are the same thing. I don’t need a number. If you get a vaccine you will not get measles. The risk is infinitesimal from the vaccine. I will not argue about hypothetical risk. It has been adjudicated. Risk is real. If my child, I wouldn’t take that risk. If you get measles, this is the risk of you doing very poorly.
This is settled science. This is not the forum to go into this.
RJ: I direct you to an article by Peter Aaby, Exhibit 21.
DL: I have not heard of him.
DJ: He describes research in an urban African setting related to the introduction of diphtheria vaccine in 1981.
DL: These are not vaccines we use in the US. conclusion:_____ Object because this is from 1981.
RJ: Peter Aaby found DPT was associated with 5-fold increased mortality. He stated DPT is an indicator of national vaccine programs, and the effect of routine vaccination on all-cause mortality is not included in randomized trials. Dr. Lehman, has there ever been such a study?
DL: DPT is not in the current schedule. I’ve never heard of this journal. Come on. Ten children died of pertussis in 2010 because they couldn’t be immunized. Then we began stopping pertussis by immunizing pregnant mothers and reducing the age of pert vaccination to 6 weeks. This is not an article I would ever read.
RJ: How do you know the vacc are not killing people?
DL: That’s not how studies are done. I’m not here for that. I was doing LPs every night in 1980s when I trained Today’s residents don’t even know what meningitis is. Look at covid 19 – where we had 300 patients in the hospital and now there are 3 patients in the hospital. I can argue vaccine efficacy all day and I’ll come out ahead. It’s been decided. Vaccination is one of the top ten interventions ever I hope all physicians who are passionate about care of children also are passionate to vaccinate. I do not accept blatant disrespect, disregard for science. We take an oath as physicians, to treat disease. I see someone who for financial gain is not doing that. I do have a problem with that. I’ve seen children die of preventable diseases. Irrespective of any prior adverse event, unless that event constitutes a contraindication or a precaution, no medical exemption is indicated.
RJ: Would you give your testimony any differently if state legislation had said ME can be written on family history alone irrespective of ACIP guidelines?
DL: My opinion is not based on law, so the answer is no.
RJ: Thank you.
DL: I have no training as a neurologist. Febrile seizures are not grounds for ME — I counsel families that there is a slight increase in seizures with MMR vaccine and even slightly higher with MMRV.. They are scary but not dangerous. That’s medical fact.
RJ: “F” is indication of father on the meningitis question.
DL: Predisposition to meningitis can be genetic. That’s the kind of family history. I would want to know what kind of meningitis, how old, to see if this child is at increased risk. Children with asplenia or a defect in type of immune system need earlier immunizations and additional vaccines, for example pneumococcal conjugate in infancy/childhood. But if predisposed to meningitis they should also get Pneumovax which old people get. This protects against more of the pneumococcal types
DL: Aluminum is ever present –in brst milk, foods.
RJ: Is there a difference in ingestion and injection?
DL: Yes, but this is resolved. There is no correlation between blood levels and hair levels. I won’t debate the flat earth society. I follow the science and read the science and the amount of aluminum is not an issue. Take it on faith. I am an expert.
RJ: What is the absorption rate of aluminum by injection over that by ingestion?
DL: I don’t need to cite because this has been decided. Children’s Hospital of Philadelphia has wonderful resources on aluminum, mercury, and also CDC.
RJ: Please see E 623. Because Dr Sutton’s MEs are not within guideline contraindications — every contraindication is anaphylaxis — severe allergic reaction — but also encephalopathy. What is encephalopathy?
DL: Encephalopathy is brain inflammation or brain abnormality. It is a catch all term. It can be due to infection, genetic conditions, a lot of things.
RJ: On ACIP charts all vaccines have anaphylaxis as contraindication, and some have encephalopathy. Some have a precaution, for example during pregnancy or with prior Guillain Barre Syndrome after LAIV flu vaccine. This six pages are the recognized contraindications.
DL: We need to review medical records, examine patients. We do this every time we give a medication, review previous reactions, as part of medical care.
RJ: After 4.1 is 4.2 chart — conditions incorrectly perceived as contraindications and precautions to vaccines.
DL: These are misunderstood. Family history of SIDS, family history of DTP or DTaP followed by seizure-
– none merit ME under these guidelines. We never want to deny protection against these 3 diseases. SIDS are investigated cases.
Autoimmune disease is not grounds not to vaccinate– we want to be sure to vaccinate because they are frequently on immunosuppressants.
With asthma the patient SHOULD get vaccines — we recommend for all children 6 months age on, asthma is a top tier indication for covid vaccine. Patients with asthma are more likely to be hospitalized, be on a ventilator, and die, and we know flu vaccine prevents that.
Prolonged crying seen with DPT, not DTaP. There are fewer side effects with DTaP. Treat with tylenol. I would not want a child to be susceptible to pertussis going forward.
RJ: Another page– references to support recommendations. Would this indicate how the science is settled?
DL: This is a very small fraction of what has been done.
RJ: What’s the fear of pertussis?
DL: If the child who is too young to vaccinated gets whooping cough, the child can have encephalopathy, or dies. In 2010, 9 full term infant died of pertussis. Older patients get a cough– the 100-day cough. They cough for months, break ribs. They don’t die. Infanats get pertussis from older children, adults, family. The pertussis vaccine is not as good as measles vaccine. It protects 85% from pertussis being transmitted to a newborn. That child can die. Pertussis is transmitted within the household.
RJ: Do you understand the standard of care to be medicine as practiced by doctors in the community? RJ: How do CDC and ACIP get their guidelines?
DL: Committees review data — their meetings are publicly available and researchers present data. They review all studies for efficacy, immunogenicity, safety, side effects, and what place the vaccine should be given in the schedule. They discuss risk of disease vs side effects of the vaccine. All these things are discussed. Meetings are open. They develop recommendations based on this. Studies are usually worldwide. ACIP takes a vote up or down. Discussion is thorough.
DL: I don’t think any have died from pertussis vaccine. Death would be reported in couple ways VAERS. You would know. In the last 10 years, I am not aware of any pertussis vaccine deaths.
AZ: Specialist in Pediatric Neurology CV 2 years at NIH doing clinical and lab research in metabolism and neurology. National Inst for Neurological Disorders and Stroke NINDS. Then Johns Hopkins. Then in Connecticut for 8 years in private practice of neurology adult and pediatric In Knoxville TN for 11 years. Then Johns Hopkins Kennedy Krieger Institute for 16 years. 2010 Massachusetts General Hospital Murray Center for Autism for 3 years. University of Massachusetts medical school Worcester faculty. I see patients at Mass General Hospital for pediatric neurology evaluation at Cape Cod. These are young adults with pediatric neurological problems. I have written and published 86 peer-reviewed articles. My areas of interest autism spectrum disorder, from the mid-80s after in private practice, until the present.
AZ: Pediatric neurology addresses any problem that relates to the nervous system. Headache, seizures, ADHD, autism spectrum, neurodevelopment disorders, epilepsy, absolutely febrile seizures. I consult with pediatricians. I have published on epilepsy. I am familiar with the literature on febrile seizures.
Work with the immune system and autism spectrum disorder. Very interested. There is an increased risk of autism in families of children who have autoimmune disorders. 1999. Result of observations in my practice in Tennessee. Frequency of rheumatoid arthritis and other autoimmune diseases is found in the families of children with autism. I have written subsequent other publications on autoimmune disease and autism. It may not be causation but there is frequent association. This stimulated my interest in the immune system as it pertains to autism spectrum.
AZ: Neurological injuries associated with vaccines—yes. I treat these patients. There are quite a few. I am comfortable talking about vaccine injured patients and what kinds of treatment they should have and what kind of things they should and shouldn’t do.
RJ: Case 4 and Case 8 May 3, 2021, one page opinion expert report you provided is in front of me in Case lines E,5
AZ: Pertinent medical info Case 4, DH vaccine reactions with subsequent development of ASD and ADHD. Family history of a relative who had autism with regression, lost developmental skills following vaccine. This raised Dr Sutton’s concern leading to exemption from immunizations. Regression after an immunization many parents report. 30% of autism patients start normally developing then regress between 1st and 2nd year of life and often this is temporally associated with immunization. This is a difficult subject because I am pro-vaccine and I take care of these patients day in and day out. Parents go to great lengths to avoid vaccination for their child. I sent you a copy of my publication regarding regression. Mitochondrial dysfunction is a distinct finding in children who regress. Mitochondria energy elements. Brain, nervous system and the immune system are especially vulnerable if mitochondria can’t provide energy for these two systems. Those systems suffer. It is my long-held goal to understand the clear association between regression in autism and mitochondrial dysfunction. So the majority of children who regressed have had mitochondrial dysfunction. And the majority have history of regression following immunizations.
AZ: What to do? No easy answer. We have gone to great lengths to elucidate mitochondrial dysfunction biochemically. That was done with this child, correct? There is a distinct abnormality showing mitochondrial dysfunction on the Mitoswab test. Dr Sutton was correct in giving this child an exemption from immunizations based on the belief and her thinking that the child could have a problem with mitochondrial function quoted in the article by Poling et al. Reading from summary W
RJ:What should reasonable practitioner be concerned about with these set of medical conditions? Why would you deny all the benefits vaccines provide?
AZ: Because if a child has autism and mitochondrial dysfunction, further immunizations could
exacerbate the problem, until you understand and treat the metabolic problem and make sure the child is in optimal health before immunizations are given. The risk outweighs the benefit until you understand the problem. The problem is only now beginning to be understood. Dr. Sutton has pretty good understanding based on what she wrote and the references she chose.
RJ: Is this in line with thinking as pediatric neurologist?
AZ: Yes.
RJ: In the event there are reviewing judges, why not vaccinate just because mitochondrial capability on the cellular level is impaired? Why would it lead to a worse problem?
AZ: One, immunizations stimulate the immune system. That’s how they work. If the immune system is abnormal for variety of reasons that we find in autism, or if there is mitochondrial insufficiency, that will exacerbate the problems of the child reacting adversely to vaccines. This was first brought to our attention by the patient described in Poling et al, 2006. It was astute of her along with her reasoning to make this association, which with recent testing has been borne out.
RJ: Immune stimulation is good–why do you say it is bad?
AZ: In this case the immune system can’t function properly because of mitochondrial dysfunction. At least until it’s proven that the immune system is not the problem.
RJ: You agree with Dr. Sutton’s decision to provide ME to this patient. What does this have to do with ACIP guidelines — the committee from CDC that sets up guidelines for immunization and exemption?
AZ: Each child presented risks Dr. Sutton considered appropriately in making her recommendations. still stand by it
RJ: What role — what is the physicians’ job— in talking to family of Case 4– what should the job of the physician be?
AZ: First and foremost is concern for the child, the patient. She would want to follow ACIP guidelines if possible. But they are very constrained, very restrictive and aren’t necessarily up to date for all children who are affected and can’t possibly take all factors into consideration. Dr. Sutton is rightfully concerned about this patient’s history.
RJ: What about protecting the public? That’s important too.
AZ: But everything in medicine is a decision of risk and benefit. Doctors have to concern ourselves primarily with the patient we are dealing with.
RJ: Any other considerations? citation 1-4 references bottom of 1st page and top of 2nd page. Why do these references support your opinion? why did you cite them?
AZ: First 3 ___ Goldenthal Edmonston Solid on immune system and autism. Well written, well researched. Points up different aspects of what I’ve been speaking about, how the immune syst is involved in autism spectrum disorder. Goldenthal goes into how mitochondrial dysfunction interacts and are active in this disorder. 4th Stein et al I spoke to previously. Our publication last year regarding developmental regression and autism. Mitochondrial dysfunction correlates directly with a history of developmental regression in autism. This child has a family history of that very phenomenon. We don’t know genetics but we know it occurs in families. We don’t have the answers yet. There are a lot of people working very hard on the problem. That family history is important for you or any physician to make the decision of medical exemption. Patients may also have family history of autoimmune disorders which raise my concern as well.
RJ: What is the relation between autoimmune conditions and why a patient might be more at risk for an untoward medical problem associated with vaccines? What Is it about that that would raise your concern with continued vaccination?
AZ: There are many diff types of autoimmunity, quite a few different kinds, in autism. Distortion in normal immune responses–that is a risk factor for a child not having an appropriate immune response. We don’t know the connection yet. We don’t know where it comes from. But children with autism have a problem with neuroinflammation. Their microglia are overactivated. We don’t know why. But it’s an important finding that will eventually lead us to solve this problem. We don’t want them to be overactivated. Increased stimulation of the immune system can lead to autism especially with family history of autoimmunity and autism.
AZ: Case 8 is concerning because of recurring seizures starting right after receiving vaccines. Also, he had frequent seizures associated with ear infections from 2 – 6 years of age.
RJ: Deep dive on febrile seizures. Are they benign?
AZ: Mostly. The majority are very benign if they last less than 5 min and are uncomplicated, that is, the child recovers quickly and resumes normal function. Repeated febrile seizures, especially if prolonged, raise the possibility of developing epilepsy. 5% of children have febrile seizures. There is a genetic predisposition. Of those 5%, 15% will develop epilepsy. It is not clear that febrile seizures cause epilepsy, but they are more likely to develop epilepsy. The last reference I provided speaks to the adverse effects of febrile seizures. Melosing 2020, an association reported in people who develop psychiatric disorders later in life were more likely to have had febrile seizures. Also sudden unexplained death syndrome SUDS is associated with febrile seizures. They are not entirely benign. Most of the time they are. Fever is common after immunizations. If febrile seizure occurs repeatedly and if seizures are prolonged, that is concerning. There is a family history of vaccine reactions. Mother had miscarriage after vaccine and required D&C, had complications. Maternal grandmother swelling at vaccination sites. Mother had autoimmune disease as did Father. Paternal grandmother, and so on, several had major autoimmune disorders.
RJ: Why? Who cares? Why is this relevant to concerns about continued vaccination in this child?
AZ: The problem may be the child had immune deficiency himself. If I were faced with this, I’d step back and exempt and find out how the immune system is functioning. That is done with lab tests, immune system evaluation. Also evaluate the nervous system in more detail, an EEG to evaluate for signs of epilepsy, even if there is no family history of epilepsy. Prolonged seizures are not mentioned here. The index of suspicion is the recurrence of the febrile seizures.
RJ: You would have ordered all these tests, correct? Provide therapy, right?
AZ: Otitis media, recurrent ear infections, are common. Every ear infection the patient had a seizure. Possible immune deficiency which may have fit into ACIP guidelines.
RJ: What role do allergies play, in the analysis to determine if a ME is reasonable?
AZ: Allergies are different. It implies an immune system component. I am not sure it would change my thinking, but he should have an immune system evaluation.
RJ: If a person has allergies – is it more important to vaccinate?
AZ: I’m not expert but there are some who have allergies to components of vaccines called adjuvants, and that would be a concern especially if there are one or two components the child might react to.
RJ: Citations 5-7 How do these support opinions you rendered?
AZ: Frye. Different possible ways seizure activity in children with autism spectrum may be part of the disorder. Refer to immune system. Campfield very good discussion of febrile seizures being benign except for Febrile Seizures Plus, which are longer in duration and more numerous. Melosing et al discusses complciations of febrile seizures, including ___. I am struck by how sensitive Dr. Sutton was to these patients’ histories, when people disagree with her action and thinking, but I would have done same thing in her position. But as a specialist, I would dive deeper.
AZ: Aluminum is an adjuvant in some vaccines. I am not familiar enough to comment. I am not an expert.
DAG Oserly
AZ: Presently board certified in pediatrics. Never licensed to practice in CA. Also board certified in neurology with special competence in child neurology. I have taken or taught no classes in infectious disease. My immunology experience is from working with immunologists but not special training. No specific training in genetics. I have published 86 articles, one last week, so 87, but not in immunology. Quite a few involve immunology of autism. I have done no independent research on vaccine safety.
O: is there a common component to all vaccines?
AZ: There is no common component to all vaccines.
O: CDC ACIP allows contraindications and precautions, but doesn’t use the wording medical exemption, according to the last witness. What is a contraindication?
AZ: A contraindication is an absolute no, something should not be given.
O: And with regard to vaccines, what would be example of immune deficiency in which a patient couldn’t handle it?
AZ: Hypogammaglobulinemia, congenital abnormality of immune function.
O: Both patient 4 and patient 8 neither meet ACIP guidelines for contraindications.
AZ: Correct.
O: Patient 4 was 4 yo at time of ME, exempting him from all vaccines.
AZ: Yes.
O: Is there any evidence Dr. Sutton consulted with pcp prior to me?
AZ: My understanding was Dr. Sutton was pcp. I don’t know if she did or not.
O: Would you take issue with non pcp issuing ME?
AZ: if I were involved I would suggest the child have further evaluation.
O: You suggested genetic mitochondrial and metabolic testing. Vaccines change year to year. And components change.
AZ: Yes.
O: And so, exemption from vaccines not yet developed is overly broad?
AZ: It is broad but not overly broad, understanding that further testing is recommended.
O: Should there be a basis for an exemption before exemption I given? how can exempt from something that doesn’t exist?
AZ: On the basis of many different factors, historical factors, because of the possibility of underlying medical problem that needs to be evaluated. Vaccines could be appropriate if testing is done.
O: This is a blanket exemption?
AZ: Yes. The logical thing is to do further testing.
O: Is there any indication that MEs are tied to CDC contraindications?
AZ: No.
O: Case 8 Febrile Seizures.
AZ: Caused by fever ostensibly. But in a few references, there is considerable concern there is actually an underlying difference in brain function that makes them susceptible to more seizures, development of epilepsy, and psychiatric disorders, and sudden unexplained death syndrome. We don’t understand it yet.
O: Seizures stopped, ceased age 5 yrs. Age 12 yo at the time a blanket exemption for vaccines was given. Do you recall testifying about neuroinflamation? AZ: In the case of autism, and in reference to autoimmune disorders and possible connection to neuroinflammation. I am not making a connection with autism in case 8 and neuroinflammation. There is a strong family history of autoimmune disorders and concern for immune deficiency because of recurrent infections. Concerned with suscept to epilepsy and cognitive impairment.
O: Case 4 was there an issue of inflammation exacerbating autism?
AZ: Yes. That may be one of the connections to the immune system that is abnormal.
O: Can inflammation lead to regression?
AZ: Yes when combined with mitochondrial dysfunction.
O: Can’t inflammation also be caused by infection? So deciding to vaccinate, is it a balancing act between potential reaction to vaccine and catching infection?
AZ: Yes. But once you understand the mitochondrial problem you have an option to treat it, which would hopefully allow vaccination. There was recent testing, but not at time of blanket exemption.
O: Case 8
AZ: There was no family history of seizures. There is a strong family history of vaccine reactions as well as autoimmune disorders.
O: You would have done additional testing—were any of those a condition of the blanket exemption Dr. Sutton gave case 8?
O: Records for case 4 and case 8 stated the purpose of the visit was to obtain ME. AZ: I believe so but would have to double check.
RJ: Your approach is as a specialist you would test, try treatment, over the course of years.
AZ: Pediatricians usually refer patients to me. I write the MEs and do the testing. Pediatricians will also say ‘should this patient be exempt b/c of___ ?’ and I write the MEs
RJ: When you write MEs, do you write MEs for all vaccines, including those not yet created?
AZ: Yes, until we sort out what is going on. Then we can clarify. (I wonder if there are patients whom he thinks should NEVER be vaccinated? MKS)


Stay tuned for day 2 of the hearing and I promise, you will LOVE it!!

Rick Jaffe, Esq.

Supplemental Memo filed in Ken Stoller’s Appeal (Writ of Adminitrative Mandate)

Supplemental Memo filed in Ken Stoller’s Appeal (Writ of Adminitrative Mandate)

here is the link to the update.

Here is the Supplemental Memo.


Rick Jaffe, Esq.

Cali. Medical Board Orders Ken Stoller’s license revoked as of March 18th 2021; We will appeal!

Cali. Medical Board Orders Ken Stoller’s license revoked as of March 18th 2021; We will appeal!

In an order dated February 16th, the Medical Board of California ordered the revocation of Ken Stoller’s medical license for writing 10 medical exemptions that did not comply with ACIP guidelines, and also for not requesting prior medical records for the patients, and using genetic testing information which was not considered scientifically proven.

The order goes into effect on March 18, 2021. We will, of course, appeal (technically called a writ of administrative mandate), most likely by the end of next week. We will also file a request for a stay of the order. We will know if we get the stay within a week or two of filing the stay request, if not sooner.

The Board adopted the ALJ’s proposed decision, and all I can say is that the hearing that Ken and I attended seemed to go a lot better than the one the judge heard. Basically, the judge accepted everything the UC Davis head of Pediatric Infectious Disease, Dr. Dean Blumberg said, that vaccines are proven safe and effective and are necessary for both the childrens’ sake and for the sake of everyone who comes in contact with them, and that it was an extreme departure not to follow the ACIP guidelines or have what he considered to be a valid scientifically established reason not to vaccinate these children. I suppose in the times such are they are, it is not a completely unexpected result.

Here is the decision. But,

Warning: if your child has a current medical exemption, reading the judge’s opinion may cause nausea and/or considerable outrage.


Those of you who heard all or some of the hearing, see how it lines up with your impressions.

The two big issues on the writ will of course be 1. that SB 277 gave Ken and other doctors the right to depart from ACIP/Red Book guidelines and use family history and genetic information to base broader than ACIP contraindications and precautions. The judge said little about that right in her proposed decision. The second main legal-based argument is that Bus. & Prof. Code. Section 2234.1 gives complementary and alternative physicians the right to provide minority view treatment and advice.

Here is what the statute says:

B&PC Section 2234.1

“A physician and surgeon shall not be subject to discipline pursuant to subdivision (b), (c), or (d) of Section 2234 solely on the basis that the treatment or advice he or she rendered to a patient is alternative or complementary medicine, including the treatment of persistent Lyme Disease, if that treatment or advice meets all of the following requirements:

“(1) It is provided after informed consent and a good-faith prior examination of the patient, and medical indication exists for the treatment or advice, or it is provided for health or well-being.

(2) It is provided after the physician and surgeon has given the patient information concerning conventional treatment and describing the education, experience, and credentials of the physician and surgeon related to the alternative or complementary medicine that he or she practices.

(3) In the case of alternative or complementary medicine, it does not cause a delay in, or discourage traditional diagnosis of, a condition of the patient.

(4) It does not cause death or serious bodily injury to the patient.

(b) For purposes of this section, “alternative or complementary medicine,” means those health care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient’s medical condition that is not outweighed by the risk of the health care method.

(c) Since the National Institute of Medicine has reported that it can take up to 17 years for a new best practice to reach the average physician and surgeon, it is prudent to give attention to new developments not only in general medical care but in the actual treatment of specific diseases, particularly those that are not yet broadly recognized in California.”

I think the judge misread the statute (or read something into it which doesn’t exist, requirement-wise.) But you can decide for yourself.

These are issues of the first impression for the California appellate courts, so I would expect this case to at least make it to the court of appeals. There is no appeal as of right to the California Supreme Court in a case like this, but I would expect that the Supreme Court might well want to weigh in.

This is just the opening round of the first battle. There are a number of other physicians under investigation or under accusation for the same conduct, so this will continue on many fronts.

And regrettably, if the Board’s order is not stayed and goes into effect on March 18, 2021, then all of Dr. Stoller’s medical exemptions could be revoked under SB 276/714, formally via some process, or I suppose informally by the school notifying the family that the medical exemption is no longer valid in light of the board’s order. The community has seen many cases where schools just decide on their own not to honor exemptions in the case of the death of an exemption writing physician, or the child transferring schools within a grade span. So, expect schools to act on their own on this. (And sorry, no individual consultations on this. I will keep posting as we progress or as we receive feedback from the schools from the families who have Dr. Stoller’s medical exemptions.)

Rick Jaffe, Esq.





“How Long Will My Child’s Current Vaccine Medical Exemption Be Good for?”

“How Long Will My Child’s Current Vaccine Medical Exemption Be Good for?”

I get asked that alot these days. But, as I have said repeatedly in these posts, I can’t answer each family’s specific question about this, not even the families who have exemptions written by Ken Stoller (who I represent). So again, I won’t be answering any of your calls or messages about your child’s specific circumstances.

Aside from my inability to deal with the shear volume of families who have questions, the reason I can’t answer specific questions or offer a legal opinion about specific cases is: 1. The new law has some vagueness in it and more importantly, 2. Regardless of what the law says, – even when it is clear – it is not clear to me that the schools will follow the law.

That being said, here is what I know to be the case about the new law:

If your child is not changing a grade span (entering a new check point) and is staying in the same school, your child’s medical exemption should continue to be technically valid next school year.

But there is a big caveat/exception:

If the physician who has written the medical exemption is under a medical board disciplinary order (roughly speaking), and the department of public health finds out about the exemption, the exemption can be revoked. I assume, (but do not know for sure) that the revocation will be automatic based solely on the physician’s disciplinary status and will not require the revocation procedure set forth in the statute. But as stated, I am not sure, because the statute is not clear about this.

Right now, I think there are only one or two California licensed doctors under board order, and I would expect every exemption that those physicians have written will be revoked after the public health department learns about the exemption. The board is currently investigating many, if not most of the physicians around the state who have written the majority of medical exemptions.

No one knows how these cases will shake out, but my educated guess is that the board will try to put all of these doctors under a board order, so that all their medical exemptions can eventually be automatically revoked by the department of public health. In the next year or two, I would expect that other physicians will be put under board order, so I would expect the list of physicians whose exemptions can be revoked will increase.

How will the department of public health find out about grandfathered exemptions in 2020 and beyond, since SB 714 eliminated the CAIR reporting of these exemptions?

Two ways: I suspect many public schools will send all their students’ medical exemptions of otherwise healthy children to the state public health department, because I think most public schools do not want unvaccinated healthy but “medically fragile” children in their schools.

Second, I think the county public health department offices will go around to the schools and request to see the vaccine exemption records, despite the fact that it is not technically legal to do so absent very specific circumstances which do not normally exist.

My gut tells me that the state department of health under the direction of Charity Dean already has a plan for discovery all of these medical exemptions, and that we are in the early stages of implementation, with more serious efforts coming in 2020. But this is just my best guess based on some of the things I am hearing around the state from different sources.

Beyond the ability to revoke medical exemptions issued by physicians under board discipline, the department of public health has the ability to rescind exemptions that do not comply with the new law, meaning exemptions beyond CDC guidelines adapted by the various lettered organizations and consensus statements. However, that power appears to be limited to exemption letters written in 2020, and exemptions forms submitted in 2021 and beyond. It does not apply to pre-2020 exemptions which are commonly described as “grandfathered.” Under the current law, the only way a grandfathered exemption can be revoked is if the exemption writing physician is under board order as discussed above.

What about if your child is changing schools within a grade span? Will the medical exemption still be valid?

I have two things to say about that: First, there is nothing in the new law which states or implies that an exemption for a grade span becomes invalid upon changing schools. That the good news. The bad news is that I am hearing that some public schools are taking the position that exemptions are not valid if the child moves to a new public school. This position is another manifestation of the fact that the vaccine fragile medically exempt are not wanted in the public schools. At some point, this may end up in court, but until then, I would expect this to continue and increase in frequency.

What’s the bottom line?

Let’s compare and contrast the SB 276/714 situation to the implementation of SB 277’s removal of the PBE (personal belief exemption). There are still families who have valid PBEs because their children are still in the same grade span when these pre 2016 PBEs were filed. Other than entering a new checkpoint/ grade span, there was no way for the public health department to cancel a PBE.

Now, grandfathered medical exemptions can (and will) be revoked if the exemption writing physician is or goes under a board disciplinary order. More physicians will come under board order in the future, so many more exemptions will be subject to being revoked, and the public schools and the county public health departments will make sure that all of the exemptions written by the disciplined physicians find their way to the public health department (or the public schools on their own will simply reject these exemptions).

But even beyond that, public schools are starting to reject or not honor medical exemptions for the vaccine fragile, which actions I think will continue and increase. How long this process will take for any specific exemption to be rejected/revoked is impossible to say. But my guess is that the majority of grandfathered vaccine fragile based medical exemptions will eventually be revoked for kids in the early part of a grade span. So many or most of these families will need another plan, if they want to continue to decline vaccination. Right now, the only two options are home schooling and moving to another state. Of course, things could change, but the above is the most likely outcome, as I see it right now.

Rick Jaffe, Esq.

NY Adopts California like SB 276 Limitations on Vaccine Medical Exemptions via “Emergency” Regulation”???

NY Adopts California like SB 276 Limitations on Vaccine Medical Exemptions via “Emergency” Regulation”???

On Friday August, 16, 2019, New York State Department of Health issued “emergency regulations” concerning the issuance of vaccine medical exemptions. The short of it is that NY has basically done what California SB 276 will do (and what the original version of SB 277 tried to do) via regulation, thereby circumventing the legislative process.

The regulation limits medical exemptions to ACIP other nationally recognized guidance documents establishing the standard of care.”

Here is the Health Department’s summary of the regulations:

Here is the part directly effecting the criteria for medical exemptions:

“A new subdivision (l) of section 66-1.1 defines “may be detrimental to the child’s health” to mean that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance. Amendments to subparagraph (ii) of paragraph (4) of subdivision (c) of section 66-1.2 require that the reason why an immunization is detrimental to a child’s health be documented in the New York State Immunization Information System. Additionally, amendments to subdivision (c) of section 66-1.3 require the use of medical exemption forms approved by the New York State Department of Health or New York City Department of Education; a written statement from a physician is no longer allowed.”

Clarifying the detrimental to “child’s health” the regulation states that:

“May be detrimental to the child’s health means that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care.”

Here is what the exemption has to contain:

“For individuals exempt from administration of vaccines, providers must submit patient information, including the reason [for the exemption] that such immunization may be detrimental to the child’s health, as defined in subdivision (l) of this section, to the statewide immunization information system within 14 days following the in-person clinical interaction that occurs at or after what would normally have been the due date for administration of an age-appropriate immnization to that child, according to current national immunization recommendations. Subdivision (c) of section 66-1.3 is hereby amended to read as follows: (c) A signed, completed [sample] medical exemption form [issued] approved by the NYSDOH or [NYCDOHMH or a signed statement] NYC Department of Education from a physician licensed to practice medicine in the New York State certifying that immunization may be detrimental to the child’s health, containing sufficient information to identify a medical contraindication to a specific immunization and specifying the length of time the immunization is medically contraindicated. The medical exemption must be reissued annually. The principal or person in charge of the school may require additional information supporting the exemption.”

BTW: Medical exemption decisions are still technically being made by the child’s physician, not by the Health Department. But of course, physician discretion to write medical exemptions beyond national guidelines has been explicitly eliminated. So in reality, New York State is making vaccine medical exemption decisions. The doc is just filing out the paperwork.

Is that a legal exercise of regulatory power?

Good (and obvious) question. I have not looked hard at the issue, yet, but I am sure some of New York’s best and brightest will do so.

If it is legal, then Senator Pan and his allies have gone to a great deal of unnecessary trouble trying to pass legislation to achieve what a couple regulators in the NY State Department of Health achieved without any legislation, so you do have to wonder….

My case for Ken Stoller against the San Francisco City Attorney raises the issue of an alternative standard of care for vaccine medical exemptions. A successful result could have an impact on the New York situation, or maybe the New York Courts ought to be asked to do the same thing.

Teaser: expect a major announcement in the Stoller case soon, and it will be a double good!

Rick Jaffe, Esq.

A Very Short Response to the 11 Reasons Thing Circulating on FB Vaccine Aware Pages

A Very Short Response to the 11 Reasons Thing Circulating on FB Vaccine Aware Pages

Many people have asked me to comment on a post raising 11 reasons (I think that’s the number) why SB 276 is illegal. I glanced at it quickly. Although I acknowledge and appreciate the effort, most or all of the points and discussion is recyled from arguments raised and rejected in prior court cases.

There were at least four challenges to SB 277 in state and federal courts, all of which were rejected. The lawyers who challenged SB 277 were smart, articulate, wrote very good papers and raised every conceivable issue, and they all lost. Here are three of the SB 277 decisions.

Whitlow v. California, 203 F.Supp.3d 1079 (S.D. Cal., 2016)

Love v. State Dep’t of Educ., 29 Cal.App.5th 980, 240 Cal.Rptr.3d 861 (Cal. App., 2018)


Here is a family law case in which the religious right to oppose mandatory vaccination was rejected. Price v. Price (In re Marriage of Price) (Cal. App., 2019)

Here is a West Virginia federal case which you should read because it involves a physician written medical exemption rejected by school authorities.
(Spoiler alert: The court of appeals upheld the rejection, and rejected the religious argument as well). This case will be cited and discussed in detail by the Attorney General’s Office in every forthcoming SB 276 legal challenge.

If you read these decisions, you will get a better understanding of the law and how judges think (primarily relying on the limbic parts of their brains). Caution, it will depress and/or anger you.

I have addressed the discrimination argument against mandatory vaccination in a prior post. Here it is:
The short of it is that it’s a non-starter.

Neither HIPAA nor FERPA provide a private right of action for a state government agencies violation of these federal statutorily created rights.

While it is true that appellate courts sometimes change the law, for reasons which I stated many times, in the vaccine context, it is really an uphill battle.

That being said, SB 276 involves medical exemptions, not personal belief and religious exemptions. To me that means that a successful challenge cannot focus on the usual suspects, i.e., claims like substantive due process, education rights, religious choice, medical freedom, but something different. So, keep up the thinking and interacting about these issues, and maybe one of you will come up with something that might work.

Rick Jaffe, Esq.

My First Take on Senator Pan’s June 17th SB 276 Revision

My First Take on Senator Pan’s June 17th SB 276 Revision

I have to give the guy credit. He’s very good at Legislative tactics, meaning throwing curveballs to the opposition and giving them little time to react.

It’s two days before the hearing and he’s introduced what appears to be a substantially revised bill, which is more complicated and apt to confuse his colleagues in the legislature all the while seeming to address the main points of criticism, thereby taking the wind out the sails of his opposition.

I’ve looked over the new bill carefully and I think I’ve figured out the main points anyway. I’ll go into details and quoting the statute later, but I wanted to get out the big picture quick and dirty:

For current medically exempt: Not much difference from prior versions. Exemptions still have be be submitted and are subject to review and revocation, with some small differences which I’ll discuss later.

The big, at least nominal changes are for new exemptions after the proposed exemption process takes effect on January 1, 2021.

Under prior versions: docs write medical exemptions applications, which are approved or rejected by state public health officials.

Under the new version, docs write “medical exemptions certifications” which seemingly are actual medical exemptions, like under the current law. exemptions.

But here is the rub: The exemptions are reviewable and revocable by a public health official or process, basically anytime a public health official wants to review any exemption. And since the health officials have all the exemptions, I have to believe they will simply target the known few exemption writing physicians which remain.

So practically speaking, the physician writes, let’s call it a conditional exemption, but it seems certain that any exemption which is broader than CDC contraindications, precautions and CDC family history indications (if there is even such a thing) will be rejected. The practical result will be the same as under prior iterations of the bill, no broad based complete, non temporary medical exemptions.

This version really goes after the exemption writing physicians hard, and especially the exemption writing physician’s who are not the child’s PCP.
The bill requires the exemption writing physician to notify the child’s PCP about the exemption.
What do you think a conventional PCP will do after he/she gets that notification? File a complaint with the medical board for fraudulent medical exemption writing.

The new version also provides that once there is an accusation against a physician involving an immunization issue, that physician will no longer be able to right exemptions unless and until he’s cleard of the charges.

There are two other targets painted on the backs of exemption writing physicians.

First, special treatment/negative consideration if the physician writes more than 5 medical exemptions.

Second, each medical exemption certification has to be signed under penalty of perjury. This last requirment will either be meaningless or could end medical exemptions for good, depending on the wording of the certification. I may discuss the differences in a later post.

So to recap: We’ve gone from doctors submitting applications for public health officials’ approval, to physicians writing exemption certifications which are immediately reviewable by public health officals, and will be approved or rejected under basically the same of CDC, APA ACIP guidelines, and heven help the physician who continues to write exemptions, because they will be in a whole world of hurt if they do.

Bottom line: same result, nominally different method to achieve it, and alot nastier for the exemption writing physicians. You really get a sense from this version how much Senator Pan and his allies hate these doctors.

RicK Jaffe, Esq.

SB 276 gets Amended, but still knocks-out current medical exemptions, and fragile children won’t qualify for future exemption

SB 276 gets Amended, but still knocks-out current medical exemptions, and fragile children won’t qualify for future exemption

On April 30, 2019, SB 276 was slightly amended.

Here is the link to the amended bill.

Here is the short of it:

1. Precautions are added to contraindications: The amended bill adds the following language after contraindications: “or that a specific precaution regarding a particular immunization exists. . . . “

What practical effect will that have on those with current medical exemptions or parent of medical fragile children?

I’d say none. Neither the CDC, AAP, AAFP or vaccine package inserts (from which precautions are taken) recognize the concept of medical fragility. And more importantly, it’s just a vaccine-by-vaccine determination. Basically, the conventional standard of care doesn’t recognize the concept of an exemption from all vaccines for all of childhood for healthy children. That’s something that only exists in the world of the vaccine concerned and the physicians who subscribe that this minority medical view.

2. Delay of filing of current medical exemptions:

The time for current exemptions to be filed has moved from July 1, 2020, to either December 31, 2020, (based on the change to the text of the statute) or December 31, 2021 (based on the legislative counsel’s digest) 1. So basically, if you currently have a vaccine exemption, it will be good for the first part of the 2020-2021 school year (or 2021-2022 school year based on the legislative counsel’s digest), and for many, much or all of it, because it may take some time for the public health authorities to reject them. (They’ll catch the inconsistency at some point and correct it.)

3. Parent filed medical exemption requests?

Here is the new language in the bill:

“The bill would require the department, in consultation with local educational agencies and local public health officers, to develop a process for a parent or guardian to request a medical exemption and the department to approve or deny the request and communicate its decision to the school district and the parent or guardian, as specified.”

Looks to me like the bill gives parents the ability to cut-out the physician from the exemption applying process.
I’m fine with that, but the only real practical benefit to the families is that they won’t have to pay a physician to have their exemption request denied.

4. Administrative review process:

The revised bill contains the following additions:

“(3) The denial of a request for a medical exemption may be appealed to the State Public Health Officer.
(4) For purposes of filing an appeal, the physician and surgeon may submit additional information to the department within 30 days from the notification for further review by the State Public Health Officer or designee.”

So there will be some sort of review process. I take from this addition that the plan is to have local public health officials make the initial determination (read rejection of the exemption request) and then someone from the state health department will handle the appeal (read rubber-stamp the exemption rejection, but even rubber-stamping is expensive, when done by governments).

And my friends, that’s the most interesting part of the bill. I’ll explain why very soon. You’ll want to pay attention.

Rick Jaffe, Esq.

Memo to Cali. Parents of Currently Vaccine Medically Exempt Children: What happens if SB 276 becomes law?

Memo to Cali. Parents of Currently Vaccine Medically Exempt Children: What happens if SB 276 becomes law?

By now, all Cali. Vaccine Concerned (“VC”) know that earlier this week, Senator Richard Pan dropped the bill he’s been hinting about for some time. His SB 276 will eliminate the power of physicians to issue vaccine medical exemptions. Instead, doctors will submit form applications/requests for exemptions which will be reviewed and approved or denied by unspecified state health officials.

Even more significant, but unsurprising is SB 276’s stated standard for which medical exemption applications will be reviewed: CDC contraindications, period, but GULP!

Before I continue, let’s have alittle perspective: This is just the first cut/draft of the bill. Like with SB 277, the legislative process may result in changes which could make the bill less – let’s just say – terminal to the hopes of the VC. Of course, the elimination of the contraindication exemption from SB 277 directly resulted in what Senator Pan believes are all these unjustified/fraudulent exemptions. So, expect him to be more recalcitrant this go around. But perhaps the same pressures which forced the elimination of the contraindications standard in SB 277 will surface again. Early signs are good. Senator Ben Allen (SB 277 co-sponsor) has stated he’s going to honor his SB 277 commitment to maintain a robust exemption option, and so for now (under the current version) he’s not with Senator Pan.

Still the situation for the Cali VC and especially the families with current complete medical exemptions is dire and alarming.

That’s because of the retroactive effect that SB 276’s contraindication standard will have on already issued permanent medical exemptions.

The retroactive effect is effectuated by the bill’s requiring all current vaccine exemptees to submit their exemptions to the DOH by July 1, 2020 and those exemptions will be reviewed a state or local public health official.

Here is the operative language of this part of the bill:

“2) If a medical exemption has been authorized pursuant to Section 120370 prior to the adoption of the statewide standardized form, the parent or guardian shall submit, by July 1, 2020, a copy of that medical exemption to the department for inclusion in the database in order for the medical exemption to remain valid.
(d) If the State Public Health Officer or a local public health officer determines that a medical exemption submitted to the department is fraudulent or inconsistent with applicable CDC guidelines, the State Public Health Officer or local public health officer may revoke the medical exemption.”

Ok, so it all comes down to whether a current medical exemption is inconsistent with applicable CDC guidelines.

Here is my bottom-line opinion on this:

There are no (or virtually no) currently issued medical vaccine exemptions for all vaccines throughout the duration of children which are consistent with CDC vaccine contraindications.

In fact, if the standard is CDC contraindications, I think the Department of Health could take the position that all of the permanent, all-inclusive vaccine exemptions are defective of their face for two reasons.

First, contraindications are vaccine or multi-vaccine shot specific and the contraindications differ (I’ll show you the contraindications in three of the basic vaccines in a bit). I suspect the state-approved form is going to list each vaccine/shot separately and ask the physician to note the contraindication to each vaccine. If a current exemption doesn’t do that, then without more, I’d say the exemption is not consistent with the CDC standards.

Second, for reasons I don’t want to publically explain, I’ve seen what I expect to be the academic infectious disease pediatrician view on this, and I believe these academics will take the position that there is no medical condition or family history which would justify an exemption from all vaccines throughout childhood. I don’t even think that’s surprising since even mega activist Barbara Loe Fisher has said about the same thing.

So, for all practical purposes, if you have a healthy child and you have a permanent all-inclusive vaccine exemption from a VC physician (and frankly, only VC physicians write permanent all-inclusive exemptions, because the concept/practice doesn’t exist with the majority of pediatrians), once the health officials review it, it will most likely be revoked.

What happens if that happens?

It’s unclear from the bill. For new exemption requests which are rejected, the physician has 30 days to submit additional information supporting the exemption request. But I don’t see a similar provision for review of existing exemptions, at least under the current bill. My guess is that they’ll go with the most administratively efficient solution which is that in the revocation notice, the parents will be informed of their right to reapply with the current form and show why each of the vaccines from which they wanted to be exempted is justified under each vaccine’s contraindications.

If I’m right, none (or almost none) of the prior permanent exemptions for all vaccines will be approved by the officials (unless your child is so immunocompromised that he/she lives in a bubble, and of course I’m not talking about temporarily immunocompromised kids, like say kids undergoing cancer chemotherapy).

Let’s look at a couple of specifics, and we’ll start with MMR because of the recent hullabaloo.


“Some people should not get MMR vaccine or should wait.
Tell your vaccine provider if the person getting the vaccine:
• Has any severe, life-threatening allergies. A person who has ever had a life-threatening allergic reaction after a dose of MMR vaccine, or has a severe allergy to any part of this vaccine, may be advised not to be vaccinated. Ask your health care provider if you want information about vaccine components.
• Is pregnant, or thinks she might be pregnant. Pregnant women should wait to get MMR vaccine until after they are no longer pregnant. Women should avoid getting pregnant for at least 1 month after getting MMR vaccine.
• Has a weakened immune system due to disease (such as cancer or HIV/AIDS) or medical treatments (such as radiation, immunotherapy, steroids, or chemotherapy).
• Has a parent, brother, or sister with a history of immune system problems.
• Has ever had a condition that makes them bruise or bleed easily.
• Has recently had a blood transfusion or received other blood products. You might be advised to postpone MMR vaccination for 3 months or more.
• Has tuberculosis.
• Has gotten any other vaccines in the past 4 weeks. Live vaccines given too close together might not work as well.
• Is not feeling well. A mild illness, such as a cold, is usually not a reason to postpone a vaccination. Someone who is moderately or severely ill should probably wait. Your doctor can advise you.
This information was taken directly from the MMR VIS””

That seems pretty straightforward, but there’s some wiggle room in terms of what kind of first degree relative autoimmune issue might qualify.

Here are the Lord’s words on DPTa:

“Some children should not get DTaP vaccine or should wait.
DTaP is only for children younger than 7 years old. DTaP vaccine is not appropriate for everyone – a small number of children should receive a different vaccine that contains only diphtheria and tetanus instead of DTaP.
Tell your health care provider if your child:
• Has had an allergic reaction after a previous dose of DTaP, or has any severe, life-threatening allergies.
• Has had a coma or long repeated seizures within 7 days after a dose of DTaP.
• Has seizures or another nervous system problem.
• Has had a condition called Guillain-Barré Syndrome (GBS).
• Has had severe pain or swelling after a previous dose of DTaP or DT vaccine.
In some cases, your health care provider may decide to postpone your child’s DTaP vaccination to a future visit.
Children with minor illnesses, such as a cold, may be vaccinated. Children who are moderately or severely ill should usually wait until they recover before getting DTaP vaccine.
Your health care provider can give you more information.
This information was taken directly from the DTaP VIS”

And Jesus/Moses/Mohammed spoke onto the flock about HIB contraindications as follows: (and some of this nonsense seems about as current)

“Some people should not get this vaccine.
Hib vaccine should not be given to infants younger than 6 weeks of age.
A person who has ever had a life-threatening allergic reaction after a previous dose of Hib vaccine, OR has a severe allergy to any part of this vaccine, should not get Hib vaccine. Tell the person giving the vaccine about any severe allergies.
People who are mildly ill can get Hib vaccine. People who are moderately or severely ill should probably wait until they recover. Talk to your healthcare provider if the person getting the vaccine isn’t feeling well on the day the shot is scheduled.
This information was taken directly from the Hib VIS”

OK, so do you want to know for sure if you child’s current complete medical exemption will be continued by the state or local health officials?

Then go through all the childhood vaccines and see whether he/she fits a contraindication for every single vaccine. Per previous, I think that no otherwise healthy child is going to get there.

What about a complicated medical history? Easy, if it’s in the contraindication for a specific vaccine, you get it (for that vaccine). If not, you don’t.

And that’s the same basic response to any question you might have about your child’s particular medical issue or family history. (See my comment later on about dirt.)

Here is the CDC URL.

But let’s circle back to the beginning

Right now, SB 276 is just a first iteration of a bill. Bills get changed in the law making process, and bills get killed, even vaccine bills, as we’ve seen recently in Washington. And it’s much easier to kill a bill than pass one.

There are many reasons this bill should die, not the least of which is because it takes medical decision making out of the hands of physicians, which seems like not only a bad thing, but something which even the Medical Board of California and the California Medical Association shouldn’t be happy about.

It also reduces a critical decision about a child’s future health and safety to contraindication statements which in many cases are several decades old, and frozen in time without any consideration of what has been learned in the last decade or two, and without consideration of new emerging technologies.

The notion that an army of state or local health officials are going to make these vital and potentially life altering medical decision, seems stupid as dirt, but maybe that’s an insult to dirt.

Still, we live in a democracy, and the way it works is that you mount an effective legislative campaign, enlist as many allies as you can, work as hard as you can, and hope for the best.

Rick Jaffe, Esq.

A post with two titles: The dissenting opinion everyone interested in the vaccine issue should read/ The Strongest Argument against Cali SB 276

A post with two titles: The dissenting opinion everyone interested in the vaccine issue should read/ The Strongest Argument against Cali SB 276

In late January 2019, Federal Circuit Court of Appeals Judge Newman issued a dissenting opinion which everyone interested in the vaccine issue should read and study. The Court of Appeals had affirmed the vaccine court’s denial of compensation to an alleged vaccine injured child on the stated grounds that the child’s injury was a result of a genetically confirmed pre-existing condition. The family moved for rehearing and en banc rehearing, which was denied, but Judge Newman wrote a dissenting opinion which was joined by one other judge. The case is Oliver v. HHS. For reasons set forth in the dissenting opinion of Judge Newman, it seems like the majority got it wrong. But that’s not why the opinion is really significant.

At the recent PIC seminar and in a recent post, I told the vaccine concerned to stop saying the Supreme Court said that vaccines are unavoidably unsafe, because it didn’t.

Here is the post where I explained what the Supreme Court actually said.

I pointed out in my PIC talk that there was plenty of powerful true things from official sources which could be used to show what you need to show, and referenced a portion of Judge Newman’s dissent in Oliver. Here it is (but you won’t like the beginning of the quote).

“The National Childhood Vaccine Injury Act of 1986
It had long been known that a small percentage of childhood vaccinations have led to grave injury and permanent disability, as discussed in the legislative record:

Childhood vaccines are essential to maintain the health of our society. They have been invaluable weapons against the dread diseases that used to kill or injure hundreds of thousands of children every year: polio, measles, pertussis, diphtheria, tetanus, rubella, mumps, and smallpox. But while these vaccines have brought the gift of life and health to millions, there are a very small number of children every year who are injured by unpredictable side effects of the vaccines through no fault of their own or the vaccine manufacturers.
132 Cong. Rec. S17,343–02 (1986) (statement of Sen. Kennedy). The House Report reiterated the concern for unforeseeable injury flowing from compulsory vaccinations:
While most of the Nation’s children enjoy greater benefit from immunization programs, a small but significant number have been gravely injured. . . . . ..
But it is not always possible to predict who they will be or what reactions they will have. And since State law requires that all children be immunized before entering school, most parents have no choice but to risk the chance—small as that may be—that their child may be injured from a vaccine.
H.R. Rep. No. 99-908, at 4–6 (1986), as reprinted in 1986 U.S.C.C.A.N. 6344, 6345–46.
The legislative record states that about one half of one percent of children each year experience vaccine-related injury;1 and with four million births each year in the United States, this is about 20,000 vaccine injuries per year.2

Footnote 1: To Amend the Public Health Service Act to Provide for the Compensation of Children and Others Who Have Sustained Vaccine-Related Injury, and for Other Purposes: Hearing on S. 2117 Before the Comm. on Labor & Human Res., 98th Cong. 21 (1984) (“S. Hrg. 98-1060”).”
Footnote 2: Joyce A. Martin et al., Births: Final Data for 2017, 67 National Vital Statistics Reports 1, 3 (2018), 508.pdf.”
(emphasis added)

So according to Judge Newman, back in 1983 Congress acknowledged that 20,000 kids would suffer grave injury and permanent disability from vaccines.
(So, folks, stop misquoting the Supreme Court about “unavoidable injury” and start accurately quoting Congress, reaffirmed two months ago by two federal appellate court judges instead.)

In the mid 80’s, kids got somewhere between seven to ten vaccines (and I’ve seen numbers as high as 20 or so shots including boosters.) Now kids are given around 72 shots of about 20 plus different vaccines, or so I read.

Does anyone other than Paul Offit think that giving 3 to 10 times the number of vaccines or separate vaccine shots to kids wouldn’t increase the number of children gravely injured and permanently disabled by vaccines? (I suppose that’s a rhetorical question, because the answer is that most of the vaccine mafia would probably agree with Offit and his view that an infant/child’s immune system is robust enough to handle even 10,000 vaccines).

Assuming just a linear increase, that would make the number of gravely vaccine injured, permanently disabled children around 70,000, per year (3 and a half times the old injury numbers). Maybe it’s less, but maybe it’s a lot more (and there might be some indication that it is a lot more based on what I understand to be the dramatic increase in autoimmune disease since in the last 30 to 40 years). But’s let’s just consider a linear increase to 70,000.

Here is some perspective

In 2018, 70,000 people died of opioid overdose, and that is called an epidemic and a crisis. So, if my relatively conservative speculation of the current annual number of vaccine gravely injured and permanently disabled children is in the ball park, why isn’t that a public crises?

I suppose the answer is obvious and right in the language quoted by Judge Newman because as Congress acknowledged back in 1983 “Childhood vaccines are essential to maintain the health of our society.”

But that raises the question: if 70,000 is the cost of maintaining the health of our society, is there some higher number where the cost would be considered unacceptable? No one in authority is going to answer that question. Instead, there is the mantra that vaccines are safe and effective and side effects are rare.

Nonetheless, I think it’s a question which should be asked, and repeatedly asked since back in the days when there was an arguably reasonable vaccination schedule, Congress itself acknowledged the grave injury and permanent disability of 20,000 children caused by just a relatively few vaccines given during childhood.

The other critically important thing about Judge Newman’s dissent

Actually, I’d say the most important part of the dissent is Judge Newman’s discussion of the new vaccine paradigm called adversomics/vacinomics/personal vaccinology. It may be the first or one of the first and most significant judicial recognition of this emerging vaccine paradigm.

From past posts, you’re probably getting that I think the only way the legal status quo and continued attacks on the vaccine concerned abates or changes is by a change from the last century’s,(but still accepted) one-size-fits-all vaccine paradigm. Judge Newman’s dissent is a very important starting point for the acceptance of the shift to personal vaccine determinations based on family history and genetic testing. Regrettably, the state of genetic testing in terms of vaccine risk assessment is still in the crude beginning stages. But……….

Let’s look at the conceptual intersection between the Congressionally admitted vaccine induced gravely injured and permanently disabled, and personal vaccinology, through the lens of “Childhood vaccines are essential to maintain the health of our society.” Hold those three ideas together in your head, shake them up and what do you get?

Honestly, I don’t see an end to mandatory vaccinations coming from this mix, nor do I see a right to a personal belief exemption.

But what I do see a need for families with a strong history of vaccine reactions or autoimmune disease to obtain as much information as they can about their child’s personal vaccine risk assessment, and make a risk/benefit assessment based on the best available evidence, and that would involve whatever genetic testing is available, mindful of its current limitations.

And that means a robust medical exemption option based on a doctor/patient interaction and analysis based on the best and most current tools available.

Vaccines may be necessary to protect the “public,” but Judge Newman’s dissent makes clear that the Government has known for decades that children will be gravely injured and permanently disabled by vaccines. We now have more injured children, but we also have a somewhat better understanding of which kids might be at greater. The idea that a vaccine exemption based on these tools and new information could be overturned by a government employee (who may or may not be a physician) using last Century’s analytical concepts seems to me to be a profound and unconscionable disserve to the future injured and their families who might have been saved by robust medical exemption process.

Here is the judge Newman’s opinion.
Decision – 2019 – oliver – scn1a – dissent in fed cir – 17-2540.Order.1-9-2019.1

This post and Judge Newman’s opinion is as good as I’ve got about why SB 276 (and the pending Oregon bill) should be rejected.

Good luck!

Rick Jaffe, Esq.