Explaining the Vaccine Mandate Lawsuits, with Medical Rights Attorney Rick Jaffe

Timothy Kowal, Esq.
January 4, 2022

In this timely episode of the California Appellate Law Podcast, health care litigator Rick Jaffe joins appellate attorneys Tim Kowal and Jeff Lewis to discuss the maelstrom of lawsuits challenging vaccine mandates in state and federal trial courts and appellate courts throughout the nation.

Rick’s practice focuses on cutting-edge medical and legal issues across the country, and he is the author of Galileo’s Lawyer, a book telling the stories of medical mavericks and giving an insider’s view on high-profile and controversial medical cases.

The three attorneys discuss why medical-rights litigation is different from other types of litigation. Rick then explains the three basic types of vaccine lawsuits that the courts are facing in late 2021 and early 2022: (1) challenges to the federal agency and police power; (2) religious conscience challenges; and (3) challenges to the state police power.

Attorney Rick Jaffe’s biography and blog, and Twitter feed.

(Get Rick’s book, Galileo’s Lawyer.)

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.


Rick Jaffe: my job is not really to make more. My job is to resolve a problem for

Anouncer: welcome to the California pellet podcast, a discussion of timely trial tips and the latest cases and news coming from the California court of appeal and the California Supreme court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis: Welcome everyone. I am Jeff Lewis

Tim Kowal: and I'm Tim Kowal, California department of podcasting license, pending moral character determination. In each episode of the California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who spread our PR split our practices evenly between trial and appellate courts.

And we work directly with trial attorneys to prepare cases for trial and appeal. In this podcast, we offer some of that perspective on various issues that arise both in the trial court and on the.

Jeff Lewis: Welcome to episode 21 of the


Tim Kowal: a big 21, where we're allowed to gamble. Now, Jeff, today we welcome attorney Richard Jaffe to the show.

Rick is a healthcare litigator. He focuses on cutting edge medical and legal issues. He got his JD from Columbia law school where he was a member of the Columbia law review and a stone scholar. And he got his BA with honors from the Hebrew university of Jerusalem, where he received the prize for academic excellence and that in the history and philosophy of science, Rick has admitted to practice in California, Texas, and New York.

So he's worked all over, but he works on litigation and criminal and administrative investigations involving significant healthcare issues throughout the country. I was interested to read about, and I picked up Rick's 2008 book Galileo's lawyer. It tells stories about medical Mavericks who faced off against the government.

And it gives an insider's view on some high profile and controversial medical cases. So welcome to the podcast.

Rick Jaffe: Thank you glad to be here. Yeah. You know,

Tim Kowal: and before we start, I did want to give this disclaimer and Jeff, I think this is the first episode we've done on. That's going to deal with some current events and we're going to be talking about some of the litigation.

Uh, that's currently in progress over a vaccine mandates throughout the country. And I know Jeff and I both tried to avoid bringing politics into this legal podcast. And I want to ensure our audience that that's not going to change. Now, just like every other episode, we're going to talk about, uh, issues on which people may have strong opinions.

The only difference is that in this episode, we're going to be branching out from debates. Typography. So I believe in, I also believe in disclosing biases whenever talking about controversial topics so that the audience can adjust their attendance accordingly. So in that spirit, I want to disclose that while I'm not ideological about vaccines, I am generally supportive of the challenges in some of these vaccine mandate cases.

And Rick, the reason I wanted to bring you on is because every week, even, almost every day, there are these new court rulings coming down, having something to do with vaccine mandates. And I saw that you wrote a great post on your blog helping make sense of a lot of these court rulings. And I thought our audience would benefit from hearing you talk about it and.

But before we get to that, I have been following your blog for a couple of years. Rick Jeffy, esq.com. It's an excellent resource for staying in it, staying on top of a lot of these current, you know, cutting edge medical litigation issues, including health policy, medical, marijuana, stem, cell patients, rights, vaccines, and medical board prosecutions.

I wondered if you would tell us a little bit about why you began writing on these topics.

Rick Jaffe: Well, I've been doing this healthcare law gig for a long time, you know, upwards of 35 years. And actually in 2016, a friend of mine had base of health. Freedom person asked me to do a blog on his post for his blog on what I thought was wrong with the American healthcare system.

So I spent some time doing that and, you know, I have a perspective I do. I've done FDA work criminal. Licensing work, all kinds of work for, you know, that it's involved in the healthcare system. So I end up writing this blog and it got pretty good response. So I ended up decided I started, well, why not do my own blog at the time?

In 2016, there were the big issue in healthcare policy was stem cells. They were about to revise the guidance documents for what is legal. And we don't have to go into that now, but basically the FDA's view was they could regulate a person's own stem cells if they re removed and reimplanted to the person.

And that's something, that's one of the issues where I just, I think it's. So during that whole process of, of review of these guidelines by the FDA, I started doing posts about the testimony I in effect was reporter following the two or three day hearing before the FDA on these revised guidance documents, which of course of documents published by the federal government on various topics saying giving their best, most recent analysis.

So I enjoy doing it and I like writing and I have been struggling with,

Tim Kowal: and where are you practicing in this area

at the time?

Rick Jaffe: Oh yeah, I I've done a great deal of work on stem cells. I did the first two criminal cases, criminal federal criminal stem cell cases in the country. And where was that? That was in 2003 and 2004.

I mean, my guy

Tim Kowal: practicing

in New

Rick Jaffe: York, I was in Texas, Texas. So at that time, these were the first two clinics that offered stem cell treatment in the country. And then, and then I represented the guy who, who, who, who started it and then did that case. I got that case on, you know, like a lot of lawyers in criminal cases, you don't hear about the good stuff.

So I got that. They never went to indictment. They offered, they want them to plead out, you know, I called them. I thought, no, we had some pretty good evidence, made a presentation and it just disappeared the next to day I got post indictment and then all that. So it's just a field I've been working with. I wrote the first opinion, as far as I know, allowing or not allowing, but basically saying that the use of what's called mesenchymal stem cells and autologous treatment to treatment in the same day surgical procedure was allowed.

And that started a whole floodgate of all of these clinics. Now they're like a thousand of them. And as a result in the last 10 years, the FDA has tried to stop. Culminating in this guidance document saying that you can't use your own stem cells if they'd been removed and more than minimally manipulated.

So that's an area. That's one of my areas of interest. I have a few different areas of interests that I focus on stem cells.

Tim Kowal: Yeah. Well, and you know, personally, I've been interested in getting involved in some of these areas that you write about like medical board prosecutions, but frankly, I find it daunting the, the level that I perceive to be the level of, you know, high level of medical knowledge that you would need to be effective in that area.

And I wondered, I wonder what your opinion on that is. Should that be a barrier to entry? Should, should attorneys be scared off from litigating in these spaces? If there, if it's something that is of interest to them, if they don't have that high level of


Rick Jaffe: you know, if it's, if it's a new field, I wouldn't like to do.

That, that lawyer's first client or second client. So I think it really, you know, it depends. I mean, I don't think it's really, I think in terms of the space, if you broaden the question out, especially if you consider vaccine cases, a lot of these vaccine cases are straight up constitutional law cases, which lawyers feel very comfortable with, even if you don't know the specific procedures.

So if you broaden it out to the current litigation, you know, I mean, if you, if you, if you have a client and you have con constitutes a claim in terms of the medicine in medical board case, you know, look, lawyers, litigators have like a bathtub mentality. They get, they, they learn quick, right? They fill up the bathtub quickly and then they empty that out.

I mean, you know, I, I used to say, I don't want my kids to be lawyers. Cause I feel lawyers are smart people that have no towels. And one of the, one of the talents is they can learn quickly and that's what litigators do. And that's what you do as an appellate lawyer. Right. And that's what you train do. So I think in general, you know, we're pretty quick studies, the more you know, about the med a medicine, the better and most that just as an observation, most of the practitioners in California and in Texas and, and in New York, that's what I know most about.

Most people are pretty much specialized that or in, they could do medical mal, you know what I mean? So they work on, on an area in Texas. Most of the private board lawyers in Austin are former workers in the, uh, medical board department. So you have this kind of a specialized bar, but anybody can practice in there.

And it just depends on what your level of comfort is. And frankly, who's going to hire a guy. Y, you know, that is going to say, yeah, it'd be really a fun thing to do. And you know, I'd like to get involved in the field. So I think, I think that's it, that's, that's, I think it's unlikely from a practical point of view that a doctor is going to risk someone that hasn't done something, you know, in a field.

So cause it's, it's their license. So, but in general, I mean, yeah, I mean, it's just a specialized body of knowledge. Look, their drug cases. I mean, a lot of medical licensing is substance abuse for doctors, right? So that's an area where it doesn't require expertise. I mean, you, you know, so I think it's, let me tell you about one big advantage of this stuff in medical board worker, administrative law, all of the things that you people focus on in the appellate court cases like comments or like fonts, none of that really matters.

Even the niceties of here. Yeah. You know, so it's, it's much more wild west. It's more informal. You don't have a, you don't really have a hearsay rule. It just what general people or recommend.

Tim Kowal: Yeah.

Well that, something about that, I don't want to say it bothers me, but I, I have a concern that whenever an area of law becomes so, so specialized that other, that generalists have this barrier to entry, that they can't get involved.

It, it worries me that, uh, you know, that judges could make rulings that no, one's going to understand it doesn't matter if they're published. If no one can understand them, it's got so much jargon and, you know, eight syllable words in there that are the medic. You, you can't read it without a medical dictionary by your side.

I wonder if it takes it out of the, the, you know, the rule of law,


Tim Kowal: to speak.

Rick Jaffe: I don't think that's a problem. I think by and large, the opinions of the judges, most of whom do not have medical training. Very readable. But on the other hand, what happens in California and the medical board cases in most of these, these cases have tried before the office of administrative hearings and these offices.

And there are a few around that the state will have two or three judges who specialize in these medical board cases because they hear their, their clients are administrative agencies throughout. That could be the real estate construction business. It could be insurance, it could be anything. So what they do do is target certain judges, judges who've developed some expertise.

I haven't seen one thing. I will say one good thing. I will say about the administrative law judge's opinions. And I don't have much good things, many good things to say, but one of the good things I'd say the opinions are, are very, very. And understandable by also, I don't, I think it's a, it's a concern, you know, but I haven't seen that issue in New York.

For example, they have, they have a commercial division that only handles sophisticated commercial cases and they have judges that only handle malpractice. So, and look, I don't have to tell you about the patent bar, right? Where you have to be a member of the patent bar to do it. And in order to do that, you have to have a, a background, a BA or a BS in engineering.

So this is kind of a hybrid of that. It's not the patent bar and it's not the general bar and, and. You know, I think there are easier ways to get into the field than, than medical board, which is basically administrative law. I mean, you know, maybe like these vaccine cases, I mean, you know, and the good thing about these vaccine cases, it's all out there.

All these bleedings are out there. So I mean, but, but in general, lawyers are smart guys. Appellate lawyers are very smart people. They have to be very precise thinkers and there's nothing inherently. It's not rocket science. You know what I mean? It's all learnable.

How much are your practices before the medical.

I, it depends now, you know, a good chunk of it, maybe half. I mean, I do some of this, the straight litigation. It really depends over the course of my career for awhile. I was doing a lot of FDA criminal work and insurance fraud or chiropractics, you know, the, these niches, like the NBDC model where doctors get together with chiropractors for reasons.

So I was doing that for a number of years and it just, it's just really what comes in, what interests me and lately it's been medical board work. And the vaccine issue is mostly what I've been doing, but I still do stem cell work. I do deceptive trade advertising for, for doctors who get in trouble with, with government agencies.

But, but it's, it's a lot of medical board work throughout the country.

Tim Kowal: But what is it that peaked your interest in the vaccine work?

Rick Jaffe: Well, you know, their freedom of choice issues. Right. And it really just, I just got roped into it. I just, I knew someone who it was about the time. It was the time that they're the main bill.

And this is SB 2 77, which was, is California law in effect from 2016 to 2019, which removed the personal belief exemption. But supposedly made the medical exemption more

Tim Kowal: robust. And these are further childhood vaccines that are exactly kids to go to K through 12.

Rick Jaffe: So there was a big brouhaha about that. A lot of, a lot of biting before the legislature, then they tried to have a recall and a group of physicians starting an organization to, to challenge the law and then to try to figure out how to write medical exemptions under the normal.

And so, so really it was just happenstance. I happened to know some of these members and I had a reputation from my work in Texas and they invited me to this meeting and I'm a pretty cynical guy and I'm pretty blunt person and told these guys not to do it. They were going to get in trouble. It was just, it was a crazy idea.

But of course, you know, I mean, in a movement, people want to do what they want to do. So all these doctors got together and they started doing it and then they started getting in trouble and they started getting trouble. So I started doing, you know, I got one case. The other case I eventually ended up with six or seven of these cases where investigations that the board was doing about these doctors who were writing these exemptions that were not in compliance with federal gosh, you know, contraindications.

So I just started doing a lot of these cases. And, and then, and then the biggest thing is they went after some. And there's newspaper reports. And they went up to the San Francisco city attorney when, after a doctor for his medical records for the patients that he wrote, because he was based in San Francisco.

So we resisted not up suing the San Francisco city attorney's office got a lot of publicity for that. And were

Tim Kowal: you successful in fending off that request?

Rick Jaffe: Yes. But in the sense that what is success success for an attorney is if you, if you fight to a draw and don't turn over records, you win. You know what I mean?

I, I never got, so I defended and the goal wasn't necessarily to get a judgment on the case. The goal was to stop the medical record. So we worked out a settlement whereby you know, the doc was already out of Dodge. He had already moved out because he got fired from his job. He had gone and. You know, I think the city attorney, so office, because of all the publicity realized it really wasn't in their interest to, to continue going after the doctor and the city attorney, their attorneys were reasonable, they're smart.

They got what they needed. I got what I needed. You know, I didn't declare victory. There was no need to do anything. I just needed to have them not get the records. So in that regard it was a success, but it's not like I have got some big decision and, you know, in my line of work, you know, it's not usually about getting the Supreme court to rule in your favor, you know, when you're dealing in my kinds of issues, if you live to fight another day, right.

And sometimes that's good enough. And that always, that doesn't always happen and it hasn't been happening lately. But in that particular case, It worked out. They never got the records.

Tim Kowal: Didn't you didn't get the big, get the big precedential decision. Are you, are you ever looking out for those cases that you can take up and get a big appellate opinion?

That's going to set precedent

Rick Jaffe: all the time. I mean, I made my name. We made our name 30, 40 years ago by making a lot of law in the field wall on rocket cheering, you know, against insurance companies. We, we established in the eighties on the right to a assumption of risk. So, so malpractice is a departure from the standard of care.

But what happens if the patient once a departure from the standard of care, alternative health, right? Don't they have the right. So the answer is we established the New York, the principal of my firm, you know, that patients have the right to seek unconventional healthcare. But if they do, they can express Lee, assume the risk and they.

They can't Sue for malpractice. So that was the biggest, one of the biggest precedents we ever established in the healthcare field. So you're always looking for that, but you know, you have to find the right case and it's hard to find the right case in a straight vaccine mandate case because of, you know, we live in pandemic times, but sure.

I'm always looking for that. But ultimately in my job, I mean, maybe it's different from the appellate court, like a guerrilla warrior. My job is not really to make law. My job is to resolve a problem for our client and which trot, which hopefully results in him continuing to do what he had been. It's just a different job then, you know, you

Tim Kowal: mentioned a SB 2 77, which was the, I think it was a 2015, the California bill that repealed the personal belief exemption for the childhood vaccines.

And then following that a couple of years later was SB 2 76, which limited the. Medical exemption. So after my personal belief and religious exemptions were, were, were repealed, the only thing left was for parents who did not want to comply with the vaccine mandates as to any, any, or all of the vaccines was to get a medical exemption from their physician.

And you mentioned representing some doctors who were writing some exemptions who were come after by the medical board. Um, and so SB 2 76, understand was the re was the legislative response to that to limit the medical exemptions that doctors could write. They had to comply with basically the, the, the CDC guidelines had some other limitations in it.

And I wondered that that always struck me as creating a bit of a tension between public health and private practice of medicine and public health being, you know, public health officials always, you know, they look at demographics, they, they don't, they don't know the names of any patients. They don't have any patients.

They, they only have the entire millions of people in the. That are their charge. Doctors don't have the public in their charge. They have individual patients. And so there's a little bit of a tension there. And for example, the AMA code of medical ethics says it has a provision that the patient physician relationship that says that the relationship between patient and physician is based on trust that gives rise to physicians, ethical obligations to place patients welfare.

Above obligations to other groups and to advocate for their patient's welfare. And it goes on to state that quote, a physician is ethically required to use sound medical judgment, holding the best interest of the patient as paramount and quote. So that will set the public officials who advocate vaccines on grounds of public health.

Uh, seem to have a little bit of a disconnect with doctors who I think ethically cannot advocate for vaccines, just because it advances a, an important public policy. They have to justify the administration of every individual vaccine on the basis of whether it's going to help the individual patient before me.

I wonder if that struck you as, as it does me as a tension between public health and. Private medical practice.

Rick Jaffe: Yeah. I'm going to click that, that AMA quote in my brief that I'm going to submit next week. Thank you. But that is a, that is the fundamental problem because it's not just public health officials.

It's doctors, which in California seemed to take the position that consideration of the public health is a factor in the standard of care, which it really shouldn't be because it's unethical. And this is the argument that we've been making in all these cases that, you know, the only obligation of the physician is to do what's best for the patient.

And, and really considerations of public health cannot be, cannot be that you can't consider them, especially. And remember what's going on? What's going on here? I mean this whole SB 2 77 was a result of this measles outbreak and Disney. Disneyland. And, and there were 177 cases that something like that knows fatalities.

And I think they eventually showed that almost 40% of the cases were not wild. They weren't, they weren't, you know, back really VAX symptoms of vaccine. So, you know,


Tim Kowal: think, are you referring to the phenomenon of shedding?

Rick Jaffe: Well, yeah, it could be shedding that's right. So, so, so it was only, only 60%. Where were, where were a lot, what were wild, right?

I mean, they did genomic testing, so that's exactly right. So, so that, that caused this whole removal, the SB 2 77. And you know, there is the bottom line is you are right. In my opinion. Anyway, there's a fundamental tension because a lot of the justification for childhood vaccination for diseases like polio, polio is a case where they don't have.

Wild polio and more it's all vaccine. And you have diseases for which an individual as an extremely small percentage of succumbing to the disease. And yet they mandated for everyone. And there are people according to the, the, the folks, you know, that I represent and their followers where the risk of vaccination is much greater than is recognized by the medical authorities as embodied in the federal CDC ACEF guidelines or the regular guidelines because vaccine vaccine adverse reactions are under under-reporting.

And typically when you go to your doctor, you tell your doctors, my kid has X, Y or Z. There'll be told that's the right thing, take two Tylenol. And it will be better in a couple of days. And that adverse event never gets reported to record it. So that's the thing, you know, I mean, that's the position that they have and, and the, and, and most of my clients say this in one context or another, my only job is to consider the patient.

I cannot consider the public health, you know, and these conditions of these patients are such that, you know, vaccine is not in their vaccination is not in their best interest, at least compared to the, the risk of contracting these diseases. Most of which either do not exist in this country or not fail.

That's essentially. You know, that's their position and my advocate, their position. I'm not, I'm a health care worker. Right. And I, I have some feelings which I personal beliefs, which I don't really express all the time, but that is the argument. Yeah.

Tim Kowal: I want to go back to another question. I wanted to ask you about medical boards and I wondered your opinion to the extent to which you think they are necessary.

I, I, I assume that most people think medical, medical boards are critically necessary and that without them, there's all these predator doctors or plaques that are going to cause a lot of harm to unsuspecting members of the public. And I wondered if through your years of experience dealing with these kinds of cases in medical boards, whether you w w what's your opinion about their, their importance in our public life and maintaining the integrity of the medical profession.

Rick Jaffe: Well, of course, I make my living in large part by representing doctors and medical board. So, you know, so I look, but I think that, I think I'm an objective guy. You know, I think that what happens with my perspective, and this is just my bias. My bias is that medical boards tend to go after the low hanging fruit and the low hanging fruit.

And in medical board work or doctors who have beliefs that are not within the mainstream and do things that are not considered standard of care, which essentially is my practice in front of the medical board. That being said, there's a lot of medical board work that deals with substance abuse, or it could be boundaries issues, and it could be incompetent doctors.

So, you know, Medical boards have evolved over, I don't know, a hundred, 150 years. I mean, they're, they are necessary. I think they're yeah, sure. I think they're necessary. I mean, it, you know, I mean, one of the main things that, the difference between, I don't know if you're aware of this, the difference between medical board law and malpractice law, civil malpractice law is that in medical board law, the board does not have to prove harm, right?

Unlike civil malpractice and the reason for it. And that's, that's something that doctors typically are late. People don't understand. And the stated reason for that is a medical board is trying to protect the public's interest and they don't have. Until someone has been injured and rather catching before that happens.

So in general, they're not going away from a practical point of view. Many of them are overzealous. There have been attempts to limit their powers. The biggest problem I have with medical boards is, is, is really the fact that there's a cartoon. I was going to try to download it, but you know, you've got to pay for it or something like that.

Here's the cartoon. I'll, I'll set it up. You have a dog with a tie. It's a courtroom setting a dog with a guy who's the defense lawyer, a Gog with a note guy who's sitting next to him. Who's the defendant. The judge is a cat and the jury is a cat. And the judge says to the defense counsel, you know, these cats say they can give him a fair and impartial verdict.

And that's how I feel most of the time when I go before. Medical boards, because especially with my kinds of clients, because to get on a medical board, it doesn't mean you're the biggest medical genius. It mostly means that you have political connections because they're normally appointed by the governor.

So you have people that know how to get along, know how to advance their career. Maybe they're good doctors, or maybe they're good layman, but, but they're not, they're not necessarily, you know, well, I don't want to say any more than that, but, but, and so that's what you have and they have certain predispositions.

And the biggest problem is ultimately the medical board is the judge and the jury. And sometimes in some states, they're even the. Right. Uh, and they supposedly keep things separate now in California. And a lot of states, they have, uh, the administrative office of administrative law here. Right. But something which most people in California practitioners don't know is that I was told recently by an LJ and the settlement conference, that it's not the purpose of the opposite of Mr.

Of to, to determine the standard of care that's set by the medical board. The job of these hearings is just see whether the practitioner has complied with the standard of care, which makes my job representing Maverick doctors, who almost by definition do not follow the standard of care. Very, very difficult.

So, so, so as, because they're the client, the client of the office of administrative law here, this is, is the medical board and other departments. And I think. Okay. So there's certain parameters of that. So as a result, it's not like that is the biggest difference between a board work and civil litigation.

It's the jury. You have an impartial jury. And my, I much prefer being in front of a jury. I don't get there very often in my kind of work. I wish I did. I much prefer going before a jury. And oftentimes I think, man, how did it get to the point where I now talk the judges? It, you know, it's all I do is fuck the judges by and large, even in these vaccine cases, you never talked to a jury and

Tim Kowal: it is a standard of medical care.

You said that's, that's the charge of the medical board, right? It determines the standard of care. Is that reviewable somehow,

Rick Jaffe: theoretically it's reviewable by, by this grid of administrative.

Tim Kowal: And then we'll just look at the record and you, you know, you better have brought a competent expert to advocate for an alternative standard of care or an expansion or modification of the standard of care.

So that, so that a superior court judge ruling on this rid of administrative mandamus can decide whether the medical board aired,

Rick Jaffe: right. And that's the way it goes. And actually in this taste that I'm still losing, I had, I had actually had a superior court judge say that the standard of care is, as I said, but he said, even under that statement here, you should have been revoked.

So, so, so it, it gets, it gets complicated, but judges, I think this is also in connection with this vaccination litigation. All the vaccine litigation judges are not doctors. They don't view themselves. They're very deferential to medical. They're comfortable. That's why, that's why you're comfortable with having judges saying, I think under the first amendment free exercise clause, you have a religious right to exemption.

They're really comfortable about doing that. They're not as comfortable saying, look, I think the prevailing opinion by, you know, infectious disease doctors is incorrect and I'm going to, you know, go with the defense, the plaintiff's experts that challenges the medical authority there. They're just not, that's not what they do.

They're not comfortable doing that. And that I think is the biggest problem. And the reason why all these straight challenges based on the mental medical experts. Fail because you can't judges aren't, don't feel themselves equipped to make those kinds of decisions and very people and people don't understand or appreciate that.

Even some of the lawyers in the field.

Tim Kowal: Yeah. Well, I, I picked up your book Galileo's lawyer. I think you wrote that back in 2008 and I started reading a little bit of it, and I wonder if you come to this because you know, talking about these medical Mavericks that reminded me of this book, I read earlier this year by Candice Maillard called destiny of the Republic.

And it was about James Garfield. And you probably know he was, he was the president who was assassinated just very short, just very after only a brief tenure in office. And I wasn't aware, and I think most people were not aware. He didn't actually, uh, succumb to the. The assassin actually failed. He died of sepsis because Joseph Lister had come up with the antisepsis theory, but that was not yet the standard of care.

The write it as a, as a quack. You know, I think there were, there was a Dr. Gross, who was a president of the medical Congress at the time, arguably the most famous surgeon in the country regarded sepsis, as dangerous said, the sepsis theory is dangerous. And as a result, James Garfield died from sepsis caused by his doctors, poking their fingers around.

And I'm looking for that bullet. When at that time there were a lot of civil war veterans who were walking around with a lot of, you know, bullet fragments banging around inside them harmlessly for the rest of their lives. That could have been James Garfield's fate. But instead these doctors conforming to the standard of care prevailing at the time, dug their fingers into them, gave him sepsis and Guild the president.

Rick Jaffe: That's the first guy that killed too. I mean, Washington died. I think he died of a bloody. He was sick and they just bled them to death because at the time bloodletting was the standard of care. And th the art, the, the doctor that we use in my field to make that point is not Lister, but Simone who basically introduced the antiseptic practices and surgery, you know, so you're a fan.

So we might feel, they always say, well, Selma Weiss was ridiculed for saying that you should disinfect your hands before you, you do what, when he was doing his, there was a lot of deaths in birds, you know, a birth procedure. So he recommended that you wash your hands, you know, alcohol and whatnot beforehand.

And he dramatically less than, than the number of deaths and childhood. That's what we, that's what we use.

Tim Kowal: Well, now that we spent about 40 minutes on these preliminary questions, let's get into the, the actual interview. I wanted to talk about your, your Roundup of the vaccine litigation across the nation.

Now on your blog earlier, this, this month, December, 2021, we're recording this and you have a post titled the whirlwind of COVID mandates and mandate litigation continues. And we'll post a link to that article in the show notes. And you described in that article, the various lawsuits and did so in a way that made a lot of sense to me.

Would you mind telling your, our re our audience, how you, how you kind of conceptualize the vaccine litigation landscape? I think you put them into kind of three different buckets.

Rick Jaffe: Yeah, there's subcategories too, but so basically the first category is traditional actions against municipalities or state law vaccine manner.

something vaccine mandates. I mean, George Washington ordered his troops and valley forge to get the smallpox vaccine. I mean, help win the war. Vaccine mandates have been around since, before the founding of the country in the states, under the state police power. So that, that, that, that have been, they have been upheld throughout the 19th century.

What happened in 1905, the vaccine mandate issue came before the Supreme court in Jacobson, as you all know, right. And that case upheld a mass, Cambridge, Massachusetts smallpox vaccine, under a theory of call it, you don't have the right to infect somebody else. Right. And then when you join a society, you give up certain rights.

So it was basically a view of your, your rights. Uh, to your own bodily integrity extend only to your body. If they go you'd all have the right to infect anybody else. So that was

Tim Kowal: at that time, the, the levels of scrutiny had not yet been developed by the footnote four of the Caroline products case. So we didn't, we don't have the benefit now, knowing whether Jacobson was decided under a rational basis or a strict scrutiny type of standard.

Rick Jaffe: That's true, but I'm not sure that's really important because they did have a level of review and they did say something about there has to be some connection. There was a standard review. It was different. I have a unusual view of that. I think that the current standards review. Result oriented and almost worthless.

I mean, it, you know, I mean, I, I think that they're there after the fact, justification's the standard of view you use largely determines your result. Right? I don't find that it has much predictive power, you know, so I would argue that Jacobson used different words, but they basically said there has to be some, you know, it's completely irrational, then maybe you can do it.

So maybe it was a low standard review. That being said, it doesn't so much matter what Jacobson said. It's how it's been interpreted since. Right. People talk about the $5 because what they upheld is a criminal sanction of $5. Well, we'll pay the $5 every, all the anti-vaxxers say, well, that only says you got to, you know, get a mandate or pay the five bucks.

Right. But what they forget is that in 1921 or 22, the Supreme court applied Jacobson to school mandates and said, we've already decided the inside the issue of whether you can mandate vaccines, you can under Jacobson. And since that time, every court has affirmed the ability of state or municipalities or counties to require mandatory vaccination.

And let me make a distinction mandatory versus compulsory. They don't line you up and stick in your arm. That's compulsory. What they do is in order to take advantage of a certain other benefit, like go to school, work for someplace. You have to get the vaccine that's mandatory vaccines. So Jacobson said what it said, but in the ensuing hundred years, it was, it was interpreted to basically allow vaccine mandates under the state police power.

And that is the first cat. Of vaccine litigations that would encompass the San Diego school districts, a mandate for vaccines, which is on review. That would include all the removal of the personal belief exemption under SB 2 77 and all the litigation. It would include any, it would include the New York health state and New York city mandatory vaccines for healthcare workers and police officers.

That's all challenging. The state's police power and the guiding rule is Jacobsen. And so far that has upheld. That is one class of Lydia. Okay.

Tim Kowal: So the first, the first bucket of vaccine challenges are these traditional action actions against state law. And, and you, you include local district mandates in those challenges as well.

And you think that probably at the apex at some point, the issue is, uh, that, that you're looking that a lot of people are looking to be decided is whether Jacobson is going to be affirmed, whether there are any nuances to it, whether it was limited to something more severe, like smallpox, chickenpox also falls under the same rule.

Okay. So that's, that's the first bucket. What's the next bucket, the next classification of these current challenges to the vaccine mandates

Rick Jaffe: recently, what you've had is the federal government getting involved in this. Historically the federal government has not been involved in vaccine mandates. There was no language from a hundred years ago in some Louisiana case saying it's the province of the state governments.

So what you have now is. What happened as Bidens went to a bunch of agencies says, figure out how we can oppose a federal mandate. Even though we said that he wasn't going to, because, you know, maybe he was justified in doing it. Maybe it wasn't not what we're here to discuss. We're not playing politics, but he sent this memo out.

I think perhaps metaphorically to all the different agencies, he says, come up with rational justifications for vaccine mandates. And so far as I can tell, they came up with three agencies, raised their hands, OSHA, which covers work workplaces, CMS, Medicare, which covers hospitalizations. And the third is the federal government's contracting with entities who get money from the government to do things so contractors.

So those are the three different two agencies and one area of federal level. The binder administration has says, well, look that gives us the authority to impose a vaccine mandate. So what has happened in the last, since those laws or regulations have been placed as you've had litigation around the country, challenge it, the, the right, the ability of the federal government to impose a vaccine mandate because basically the vaccine mandates have been historically the province of the state governments under the police power.

And I think one of you mentioned the point earlier at some point that this isn't even the federal, this is not Congress. This is essentially administrative action, right? And that raises a whole host of problems, especially in the context of the Supreme court. And when I think is going to be to continue to treat.

On the administrative state, which we see in other areas like with the doctrine, which I'm sure you're familiar with Chevron deference to administrative agents. So, and some of the Supreme court judges, I think, uh, especially the three on the hard, right. I mean, they're, I mean, they've been talking about getting rid of them, uh, or, or, uh, uh, Thomas has been talking about getting rid of the administrative state and Chevron for a long time.

So, and they they're now limiting it. And that is I think, directly related because it's just a backlash against the administrative state. And this would be just another, if not super exciting. Of the federal administrator and state interfering and people's lives are. So the argument is

Tim Kowal: okay, so this, the second bucket is, is challenging, challenging vaccine mandates that are coming down from the federal government.

And you broke that into agencies and then also federal contractors. And it seems like the, probably the lead among the lead challenges, lead arguments, and those challenges are going to be kind of procedural constitutional structural type of arguments, whereas

Rick Jaffe: the powers reserved to the state. Yeah, yeah,

Tim Kowal: yeah, yeah.

That's a 10th amendment. And then. So these are going to be a more procedural type of challenges where, you know, and maybe lurking in the background, there's still the Jacobson type of question, but that's a police power question, which is not, not among the federal powers. You'd have to. I think the, the government is going to have to find some sort of constitutional hook that authorize it, authorizes it to make these challenges.

And I think maybe in maybe lurking in the background may be a chief justice Roberts opinion in the Obamacare, the affordable care act case, which held that the commerce clause does not support the imposition of the, of the mandate to buy health insurance. Instead it was upheld as a tax. So if there's not a, if there's not authority to authorize the authorizing the federal government to impose a required.

To private individuals to buy healthcare. I'm not sure that there's a majority on that court, particularly now who's going to buy that there is a federal authorization to require citizens to, to, to accept a, a jab of a, of a, of a private medical

Rick Jaffe: product. Right. Well, I think, I think you're right. I think there have a hard time finding a constitutional justification.

I think what there w w what the issue is going to be is more statutory. So, and the OSHA case is I think there's, there's some tests. The test is whether there's a emergency and whether they have the power of the statute. So that that's an area where. You know, the Jacobson litigation, I think is, but under the statute, in terms of the OSHA stature, just really not clear.

I mean, how long has this emergency going to last? It's going to be 10 years. I mean, now we're the Omicron, then we're going to be the Democrat. And then there re how long do you have this power? Right. So I think there's probably the best argument to be made against that is the statutory argument that it exceeds the authority of the federal government under the OSHA laws to mandate something like that.

That, cause I mean, like, I agree with you. I think the constitutional question, I'm not sure what it is, but if there is one it's a loose , you know, so that's a second bucket now that's the third bucket. Now a lot of this litigation, right. Has to do with whether or not there is some kind of religious accommodation or exactly.

To a mandatory vaccine. All right. And, and, and let me make a fourth bucket here, just to tell you what this is, all of the buckets we've been talking about are government versus an individual, right? As all of your listeners know the, the, the constitution of the, the, the, the, the amendments that we're talking about really affect the relationship between the individual and the state in a why in the 14th amendment.

So private employers is a completely different issue, right? You don't have, you don't have necessarily a constitutional right to avoid a vaccine that your employer mandates. I mean, certainly not. You know, it's not a Jacobson issue. It's not necessarily a constitutional, so that's a completely different kind of issue as, as like a third and a half bucket.

But the third bucket are these. Religious exemptions. Now, what has happened is some courts, district courts, and even appellate court have given stays in the course of the proceeding of these religious exemption cases, because either there was no religious exempt or mostly because there was no religious exemption or accommodation, but most of those stays have been vacant.

So you've had that New York, you had that in Indiana. So, and that has to do with whether the constitution requires a religious exemption under, I guess it would be the free exercise clause. So that's the third

Tim Kowal: bucket. Yeah, I wondered a few. I know we're going a little bit long already, but I am a little bit confused about that argument on the religious exemption.

I wondered if it, I had heard about with other vaccines, there, there were claims of religious exemptions because they there's a religious objection to abortion abortion. And some of, some of these vaccines may contain strands, you know, from aborted fetal cell lines. And so that was the basis of the objection.

Is, is that the basis of the objection to the, to the COVID vaccines in the, in the religious exemption argument? Or is it something different?

Rick Jaffe: No, I, I think you're right. I think it's, it offends their religious beliefs because the vaccines were developed with the use of a boarded fetal tissues. And that's against the religion.

It's not against, it's not against the. Traditional religion as, as determined by the powers that be in the religion. There's no religion other than Christian science. I think that, that, you know, wouldn't allow it. I mean, all the major religions have coming out in favor of the vaccines. So, you know, so I, I think the interesting legal question is the courts have three years ago, couple of years, 2019, the New York courts upheld the removal of the religious exemption to vaccines on constitutional grounds.

There's no constitutional right or religious exemption. Connecticut did that recently. There's no constitutional right to a personal belief exemption. So this is in my view, this is a murky area because historically the general concept of a religious exemption, many states. But when they remove it, they're allowed to remove it because there's no state or federal constitutional protection here.

I guess the argument is, well, it's specific because we're against the practice. You know, some people would argue that it's completely pretextual because these people also don't have objections to using other drugs that ha that were, that were used fetal stem cells and they didn't even look to see. So, you know, so this is an issue that has not been litigated at trial yet.

Right? All we have is a bunch of declarations about people professing their religious beliefs. I had a case where the guy, you know, wanted me to go to, you know, some hearing. Yeah. You know, for his religious beliefs is what are your religious beliefs, you know? And, and, you know, the problem is. It's sorta hard to pin down.

I mean, it's easy to state, but you know, we all know what religious people are, you know, and these, and, and these people that profess these religious beliefs, it is claimed or indistinguishable from other people. Now, maybe there's some arms, right? Maybe there's some fundamental Christian or Christian science is I get Christian science.

They don't believe in medical intervention. So this is an issue which has not been tested through cross examination, that hearings, because everything is just this initial procedural through motions for preliminary injunctions and appeals. So they take the, they take the record as it is. And that's why I think that's why a couple of the Supreme court justice Kavanaugh and call me barracks.

You know, when they rejected the taking these cases up, the religious cases up says, look, we need a better. Yeah. You know, and that's, that's, that's a legitimate thing we need to record and have this tested and we can't just decide these cases on, on declarations.

Tim Kowal: So, and thus far their decisions have been not no, but just not yet.

Is that

Rick Jaffe: right? Well, this is, uh, this is an appellate issue for you. I mean, the so-called shadow docket. You could probably lecture on that. So, you know, look, the shadow docket, I think the Supremes are starting to think is, is just being abused and, you know, and, but look what they did look, what they looked at, what they did on the issue of restrictions in churches.

You know, the first south Pentecostal case, you know, when five to four in favor of holding the regulation of church gatherings to 25%. Okay, which was different than hardware stores, you know, on the obvious reason you go to a hardware store for 10 minutes and you go to church for an hour and a half, you know what I mean?

So that was upheld by five, four Ginsburg died, you know, and then all of a sudden it was five, four, the other way, with this opinion, by my courses, you know, there's no way that there's no planet can kind of hardware store be open and a church closed or church can be limited. I mean, which is a, you know, it's understandable, but it's a mechanical, you know, argument.

I mean, it's, there's no rationale behind it. I mean, I, I, you know, if you liked that decision, you liked that thing, but it's not based on medical science. So, but that it's it's politics. So, so if you look at that, that was the first shadow docket case. And then the Cuomo case came down, you know, on the same thing.

So what happened is. All you appellate lawyers, you know, re read those two decisions and said, man, we can get to the Supreme, you know, right quick. And we're going to do the same thing. So what happened is every single one of these cases, religious exemption case, they cited Cuomo. They cited the second south Pentecostal case and they say, look, it's our religious beliefs.

So that's really what happened. And you know, I wrote a post about this assists guys. It's not going to fly. It's not the same thing. You know, I'm leaving used, had an opinion in, in Houston where he said, look, we're not gonna, we're not, you know, we're not gonna make law based on the vaccine preferences. And that's what we, and, you know, I've appeared.

So that's that, so that's how this, all this litigation started on the shadow doc. Okay. Yeah,

Tim Kowal: no, that's interesting that point about, you know, comparing churches and hardware stores. I mean, it's important too, to not be ideological about these things. Of course, religion is protected in our constitution and in our traditions and everything, but, you know, it's important to, to kind of look behind the curtain and, and, you know, not everything is a black and white issue.

You know, I would think that, you know, going back to Jacobson, you know, that was based on a smallpox outbreak and smallpox is a particularly severe disease and maybe not all diseases are quite as severe as that. And so maybe that rule it, even if it is to be upheld, it is not be a one size fits all rule.

Maybe, maybe different diseases call for different measures. And maybe, maybe when we get down to something like an Omicron variant, maybe that falls a little short. Um, but the standard, the same, the same kind of measures that we would justify in a smallpox outbreak, but those are the kinds of thinking and consideration.

I think that needs to go into it, not a black and white type of thinking, but gradations

Rick Jaffe: and therein lies the other problems, because that was a perfect segue to the other big issue who decides right. Who decides whether on the Cron coronavirus is severe enough to impose that, right. Who decides, and I, and for better and worse, depending on which side of a field you're in, that's the job of public health.

The authorities, public health authorities and backed by medical science. So which leads to the problem is what happens when you have the public officials, the great Tony Fowchee, you know, and all of his minions, they say what they're going to say about public health. And they say, we have to do this. We have to do it.

Then, you know, it doesn't matter that there's only 0.5% of people died. It's 800,000 people who decides, right. And what you have on the other side of that. And I know this because I actually filed the first case against mandates. Recently it was on the flu mandate, you know, during the COVID vaccine. But before there was a vaccine, I sued the UC for there, for the flu mandate.

And the justification was that. Well, you know, we got to keep the hospital beds for the COVID patients. And that seemed ridiculous to me, that's a collateral purpose and it was wrong. And I got five experts from around the world who, who, who, who analyzed all the data. And I had one UC professor, two UC professors, and put these five expert reports.

There was a brilliant job if I do say so myself, and it was very compelling. At least if you were against vaccines and the, you say came back with 10 experts, all of whom work, essentially infectious disease experts. We had none because of the infectious disease mafia. We went before the Oakland judge, you know, and here's what he guy told me.

Just to give you a sense of this says, you know, they were steps. I got to tell you something. I wouldn't feel comfortable going to the movies now with people that were not vaccinated. Okay. So w w so guess what, I th I lost it. I lost, I didn't get the preliminary injunction. They also said, you know, it's like Andy vaccinated, people, unvaccinated people are like drunk drivers who might, who want to draw it.

They might want to drive, but they're dangerous. That's what the judge told me. And it shows you their, their mindset. And ultimately, you know, the problem in these cases are the, is that the infectious disease mafia that's hooked into all the vaccines and the pharma, and most of the public health officials, whether you, whether they're right or wrong, have a position that, that COVID is dangerous.

It kills a lot of people, which apparent which it does. Right. And we need these restrictions. And so how does a judge decide that the institutionalist are wrong and we're going to go with instinct. The opinions of physicians who are extremely well credentialed, but none of them are infectious disease doctors because they all stick together.

So. Practical from the trenches point of view, this is the problem with all these cases that try to take on, on these public health issues. You know, it's the institutional versus non, and you're asking a judge to say, oh, we're going to disregard what the institutional Sage and who wants that responsibility that could result in the death of hundreds of thousands.

That's what these cases face from a practical litigation.

Tim Kowal: Well, and then also take it back to the standard of care issue that we talked about, the standard of care, who is deciding what is the standard of care when it comes to the vaccination policy? To what extent is that standard of care informed by public health officials who are concerned with large demographics rather than individual patients.

And that gets back to that tension between public health and our health and private medicine. Do we have a standard of care for private medicine that is driven by. Public health officials.

Rick Jaffe: Well, they, they, they, I can give you the answer to that. They can play the issue. They talk about the boat. They always use the conjunctive.

It's dangerous to the patient for not being vaccinated and to the public at large, because you're increasing the risk of infection for most of this diseases, which don't even exist in this country or are not fatal. So that is the answer. The conjunctive th th the use of a conjunction melding the two

Tim Kowal: together.

Interesting. Well I've monopolize all the time. And before we tax our listeners patients, Jeff, you had a question about some of the injunctions coming out of some of these cases and their effects. You want to put that.

Jeff Lewis: Well, yeah, sure. Look, I follow the headlines. I haven't read much of the cases. It seems like every week there's a nationwide injunction sought to block the vaccine mandates and then there's a court saying, Nope, it's just going to apply to this circuit or that circuit.

What is the current status of junctions against these vaccine mandates. And, and is it nationwide or is it limited to certain geographic regions or is that too hard? A question to ask?

Rick Jaffe: Well, okay. Let me tell you what I know. All right. On the issue of OSHA, this circuit, enjoined, it, those cases were consolidated to the sixth circuit.

The sixth circuit vacated the injunction, so it's effect, but the Biden administration has put off the January 4th deadline to February to see whether the Supreme court is going to wait. All right. That much. I know the San Diego case in falling into school district, the,

Tim Kowal: and in that case that the San Diego superior court, that's the one you're talking about.

Right. It just, it just enjoined the school districts mandate for, I think the K through 12 children on the basis of preemption grounds that if the state wants to mandate it, that's the state's business, but school districts cannot enter that field without the explicit consent of the legislature.

Rick Jaffe: Oh, really?

Day or two. Yeah.

Tim Kowal: I think that, that was just yesterday

Rick Jaffe: that I wasn't aware of a December 20th. Right, right. That I haven't followed him doing something else. The last I had heard. So preemption grounds. Well, that's an argument that's been made that basically because of mandatory, mandatory injunction is under the health and safety.

Uh, a mandate would have to be by the legislature as an amendment to the health and safety code. Right. And school districts don't have the right. What court did that, do you call

Tim Kowal: it court? No, that was just, that was a San Diego superior court.

Rick Jaffe: I don't think that's gonna, that's not gonna hold. I don't think, I don't think that's right.

I think it, I find it hard to believe it because there's litigation on the other side, that one of the arguments against the federal mandates is that it ought to be state or local specific to deal with the individual conditions of an area. So I'll go see what the appellate court does. I mean, I, and, and I think, yeah, well I'll after I've read the opinion, but I find it hard to believe that the school district cannot impose.

Health requirements. I'm somewhat familiar with these score school board rules and public health rules. And typically there's a great deal of power given to, well, maybe not school boards, but, but local public health officials. But anyway, so that would be a good thing. The answer is if the law isn't in effect, that would be a good thing in terms of, I, you know, these decisions, excuse me, are coming so fast and furious.

You have decisions all around the country, limiting their scope to different circuits, right? So there's no comprehensive. Decision on any of these things. I happen to think that that's going to be a pretty good reason why the Supreme is, are going to have to take this up. It's just, it's just too chaotic.

There's too much litigation. And there's too much contrary contradictory litigation. This is the perfect time. Even on the shadow docket with everything, they've got to come out and set some standards and some of these critical issues. And I hope they do soon because there's nothing worse than the chaos that has resulted from that because literally people are waiting whether they're going to quit, whether they're going to continue, you have a lot of people that don't, aren't going to take the vaccine and you know, they're struggling what to do.

And so I'm hopeful that the Springs will come in and give some clarity of the situation. Let me ask you this brick. I, you know, I'm not as skeptical as Tim, when it comes to vaccine backstop, boosted, my family's backs to boosted. And to be honest, I didn't really question it, but let me ask you this. What is the one thing that members of the public or people like me, who aren't super focused on this kind of vaccine litigation?

What is the one thing you would love to share with people like me that might surprise them or that they don't already know about the vaccine litigation? The COVID the vaccine litigation? Ah, I don't know. I think that's a tough one. I mean, I think there's been a lot of discussion about it and I think there's a lot of misinformation.

I, you know, I do this litigation that I do, but I make my own personal opinion. The decisions aren't vaccinated, boosted such a decision with the Johnson and Johnson. I think.

You know, what strikes me in general is something that I didn't know, it's not directly related to COVID is that most of the families that I dealt with who did not want to get their children vaccinated and got exemptions, most of them are, or at least a big chunk of them or pro-vaccine until they had a kid with a horrible vaccine reaction, which turned them into very skeptical.

So I find that the most interesting and troubling aspect, I mean, I talked to intelligent people, lawyers, and they were pro back. They never, they were just like you, they never thought about it. Ma I have a relative, right. I have a relative. Who's just a normal. You know, literally younger than me and athlete and they, because of COVID they got the flu shot and sure enough, if the guy didn't get Gillian bear syndrome, that guy was, he was in bulldogs.

The guy's like 62 years old, he would say competitive tennis player, no problems. The guy was struck down. He was in a hospital for a month. He's it's he was, it was like lightning out of the blue. Now did I think he still got the COVID vaccine, but he is now a lot more wary about it. So I think people underestimate, you know, the fact that many people have had and, you know, and, and by the way, Billy embarrassed is a known risk for the flu.

So you can say, well, it was just coincidentally. So many, many people that are against the vaccines are so because of personal experience and were formally pro-vaccine. So I would say that's one of the, that's one of the big pictures I don't, I, my view is I think probably COVID vaccines should be a matter of personal choice because I don't think these things were approved on the basis of preventing transmission.

Right. They were approved on the basis of preventing hospitalizations and deaths. And I think that ought to be a personal decision. I don't, to me, the evidence is pretty strong that it's working. So, and especially if you're older. So to me, it's about, you know, people might have the right to make the w w we allow people to make horrendous mistakes.

I mean, we'll help people to smoke. We send people off to war. We allow people, I mean, I stop against unprotected sex. We allow people to get certain rights. So in general, I'm in favor of allowing people what they want to do. If the vaccine were proven to stop transmission. And maybe it has, maybe they're saying it has, as opposed to just assume, then you could argue that you're you, you can mandate vaccines to prevent, you know, nobody has the right to be typhoid Mary and the constitution is not a suicide pact.

Right? So at some point let's put it, let me answer your question. If, if some new variant kills 50% of people, it's like, there are no atheists in the foxhole, you know, at the point that, that, that, that reasonable. There are no reasonable person, but think that the risk benefit is, is different. That's one thing.

So, you know, it's hard to say, but, but I think the biggest problem is that the public is not convinced that it stops transmission. And if it doesn't stop transmission, why the mandate? And like I say, they're, they're canceling events, new year's Eve events, even for vaccinated per. Right. So I think the problem is that the whole people that we think about the purpose of vaccination doesn't seem to hold water in this case, in terms of preventing the ill, the, the, the disease or the infection, and that's causing a lot of the public.

And I'll try to,

Tim Kowal: I'll try to answer Jeff's question. I have one just to bring back to a legal anecdote. I remember years ago, and I was, I was researching this prop 65 issue, and I just stumbled across this case that involved someone was, was arguing that vaccines should be labeled with the prop 65 warning because it contains some ingredients that, you know, allegedly are Christ-centered.

I mean, there's the prop 65 warning, obviously he's a little bit overinflated, but the, the, the holding of this case was something to the effect of, well, yes, even if it arguably contains these carcinogens. Ingredients, it doesn't need a prop 65 warning because the law will presume that the nurse or doctor is reading off all of the lists of, of adverse events.

Every time they administer one of these vaccines. And I remember thinking, you know, yeah, that's, that's not my experience. That's not the experience of anyone I know whose children have gone in for vaccinations. And I thought the line from all of her twists, you know, the worst, I would wish of the laws that it's, I would be opened by experience because that is, that is one of those presents or legal presumptions that just does not match with.

Rick Jaffe: Well, yeah, don't misunderstand me. Although, you know, I don't think we'll ever see eye to eye on vaccines. You know, there's been times in our country, you know, after nine 11 or in terms of terrorism or the stakes are big, or when there's a mountain of evidence against a criminal defendant where people criticize lawyers for poking at the government for questioning can the government do what the government's trying to do here.

And it's super important. We have lawyers like Rick, who question the government and say, Hey, the stakes are big. Let's take a minute and pause and ask, can the government do what it's proposing to do? So I appreciate all the work you do. Well, thank you. All right,

Tim Kowal: Rick, I want to thank you for joining us today.

We ran a little bit long, so we're going to, I think, I think Jeff we'll, we'll skip the Roundup of cases and save it for the next episode, but I did still have a lot of questions left for Rick and maybe, maybe you'll agree to join us again in the future. And we can do, if we can do an update for our audience, aware of where the, where the cases have taken us, you know, in a, in a few months time.

Sure. Alright. Well, I guess that,

Jeff Lewis: uh, that wraps up this.

Tim Kowal: Yeah. So if you have anyone in RNA audience suggestions for future episodes, please email us at cal podcast@gmail.com in our upcoming episodes. Look for tips on how to lay the groundwork for an appeal preparing for trial. The next time you have just

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Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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