Litigation Update: Vaccination Mandates

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The ongoing, high-decibel, public debate over vaccine mandates has entered its litigation phase.  Please join us for a conversation with one of the country’s leading vaccine and civil rights litigators, Aaron Siri of Siri|Glimstad.  Mr. Siri will provide a litigation update and summarize the issues and strategic challenges facing litigators, their clients, and policy makers.  Our host will be Robert Destro, former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor and Professor of Law at The Catholic University of America.  Together, they will discuss the evidentiary and human rights issues facing lawyers who plan to challenge the public health regime.

Featuring:

Aaron Siri, Managing Partner, Siri Glimstad 

Moderator: Robert Destro, Professor of Law, Catholic University of America

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To receive a copy of the documents referenced during this webinar, please email pg@fed-soc.org with the subject line "Vaccination Mandate Documents."

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Robert Destro:  Good afternoon, everybody. My name is Bob Destro. I am a professor at the Catholic University of America's Columbus School of Law. We'd like to welcome you this afternoon to our litigation update on the vaccine mandate issue that's been going on now for quite some time. What I'm going to be doing here today, first and foremost, I'm going to welcome my co-panelist here, who's our featured expert for today, Aaron Siri, who's the founding partner of Siri Glimstad in New York and around the country. I've also posted on "sharing the screen" about a little bit of background information for all of you, in case you're interested.

 

      So, what I'd like to do, just as getting started, is to give you a little bit of background. My background is I'm a civil rights lawyer, myself. I was the Assistant Secretary of State for Democracy, Human Rights, and Labor during the initial phases of the lockdowns. And my boss at the time—former Secretary Mike Pompeo—asked me to pay particular attention to the human rights aspects of the emerging public policy response on the Covid-19 epidemic.

 

      And so, what we thought we would do is use today's program to aim it at attorneys and engaged members of the public who are interested in the human rights aspects of the issues being litigated. And from my perspective, success today is to give you a good sense of what the cases are about, what the challenges facing the litigators are going to be, and, basically, to get a sense from all of you after we're done -- to get a sense of what other programs you would like to see in this space.

 

      So without further ado, I'd like to introduce you to Aaron Siri. Aaron is, as I said, the founding partner at Siri Glimstad in New York and around the country. And I want to thank you for taking your time, Aaron. Aaron's one of the leading litigators in the field of vaccines. And Aaron, welcome. And tell us a little bit about yourself and about your firm.

 

Aaron Siri:  Thank you. Thank you for having me and for the invitation to participate today.

 

      Historically, I was a commercial litigator at Latham & Watkins for six years until I opened my own firm about eleven years ago. And then did that until we started doing plaintiff-side class actions. And somehow, through twists of fate, I ended up doing vaccine-related work to the point where, today, we've got about 16 professionals at the firm. And that's with two new recent hires that pretty much focus on vaccine-related work.

 

      A number of them only do vaccine injury cases in the Federal Court of Claims Vaccine Injury Compensation Program. A number of them only handle vaccine exemption work. And a number of folks focus, in large part, on civil rights, with regards to mandated medical products. And that includes various -- a broad umbrella that includes FOIA requests, challenging mandates, representing parents who -- against government-coerced medical products, and so forth.

 

Robert Destro:  Well, you know, that's a great segue into our -- the person who has become our vaccine guru, if you will, is Tony Fauci, who has said the other day that vaccine mandates, that all of these safety things, have nothing to do with civil rights. And you were talking about how your firm deals with some of the civil rights issues here. Can you tell me a little bit about what those are?

 

Aaron Siri:  Sure. With regards to Dr. Fauci, I think he said it very well at a congressional hearing when he was asked about the externalities with regards to the policies being implemented by the health authorities. I don't recall who asked him the question, but somebody asked him. A member of Congress said, "Well, what about the economic costs? What about the various societal harms? What about other issues other than controlling the virus?" And Dr. Fauci, I think, honestly answered him and said, "Look. When it comes to economics, there's the fed board." They can deal with that, basically. And labor issues, there's a Department of -- there are different departments of government that deal with the various other things. His role -- the Department of Health and Human Services, under which the NIH is, and the FDA, and the CDC -- their role is to control the virus. And that's what they're going to do. And if there are other issues, turn to the other departments of government.

 

      And so, with that, it's not surprising that Dr. Fauci is not mindful of civil liberties, individual rights, the founding -- the core principles that have made this country what it is. It's the notion that individual rights should be respected, not when it's easy, but when it's difficult. Because if individual and civil rights are only respected, are only honored, when it's easy, they're not much use. It's precisely when they abut with the majority view when it's challenging to uphold them. Right? And certainly, I would say that those rights really should not be contingent on the ebb and flow opinions of what, effectively, are unelected public health officials.

 

Robert Destro:  Well, this is a great way to get into -- our audience should know that Aaron and I have spent a good deal of time on the phone prepping for this. And one of the most interesting aspects of this for those of us who do not do vaccine litigation is we talked at some length about the mindset or the cultural background that infuses this area.

 

      I mean, as we know from the Jacobson case, which was decided back in 1905, there has been controversy over vaccines since even around the beginning of the 20th century. Now we're more than a hundred years in, and one of the most interesting points that Aaron made to me—which I'd like him to discuss here—is how the debate, and how the litigation, is shaped somewhat by what we would call a structural conflict of interest that exists with the CDC and with HHS on this topic. So could you talk a little bit about how that structural conflict of interest affects our understanding of the issues?

 

Aaron Siri:  Sure, happy to. The historical debate around vaccines -- when you read through some of those materials from even the 1800s, it's very different, actually, I would say, than the debate that's happened and the cultural cognition around that seen over the last 30 years. Even up until 30 years ago, you could have a discussion about vaccines. There was reasoned debate to be had without an immediate onslaught of ad hominem attacks. That doesn't really seem -- there's not a lot of space for that, as you probably are aware. I mean, there's fact-checkers and a culture war that oftentimes meets even reasonable concerns that are raised about any vaccine product with, typically, an onslaught of ad hominem attacks rather than the addressing of substance.

 

      And the question is, how did we get here? Why is it the way it is? Because it wasn't always like that. There are drugs that are very beneficial to society. Right? We value them. We think they save lives. They help people. But yet, people can criticize them. People can say, "Hey, look. Antibiotics, statins -- those are great. They reduce heart attacks. They reduce infections. But some people are harmed by them." People can have that discussion. You can say that, and nobody lobs an ad hominem attack at you. And federal health authorities don't get up in arms when you make those statements. They don't feel the need to go and censor those statements on the internet and otherwise.

 

      And why is that? What is the difference between criticizing a drug that the medical community accepts as incredibly life-saving and important, and criticizing a vaccine -- when you put that label on it? And I believe the difference is that, when it comes to vaccines, the federal government, in particular, has taken over the role of promoting those products. It doesn't promote statins, but it does promote vaccines. And more than that, it also defends vaccines in the Vaccine Injury Compensation Program. Literally, it is the respondent in vaccine court, defending those products.

 

      And so, when an entity goes out and it widely promotes this product -- and here, that's what federal health authorities have done. Even with the Covid vaccine, the FDA was doing that -- the FDA itself, the agency responsible for making sure it's safe, and licensing it, and promoting it. That means they have tied their own reputation to this product. And things that are said negatively about it also reflect badly on them.

 

      If I may just back up just a little bit more, with that kind of overall gloss -- get into a bit more of the actual structural conflict, the nitty-gritty of it. And here's where I think it originates, in a bigger sense. And I think if we understand where the structural conflicts in vaccines generally come from—and this really comes from the law, in many ways—we can understand the paradigm in which Covid vaccines were dropped into. And I think it helps understand more about how Covid vaccines are -- the cultural cognition that exists around them, including what you deal with when you have to go to court over these products, and how you deal with them, and how they're dealt with in various legal contexts today.

 

      Leading up to 1986, there were really only three routine childhood vaccines. And they actually, typically, weren't even mandated in many places. But the amount of liability from the injury caused by those products, collectively, exceeded the revenue they were producing. The U.S. Supreme Court, in Wyeth v. Bruesewitz, even explained that the liability for what was then the DPT product—diphtheria, tetanus, pertussis—exceeded by 200 times, according to Wyeth, the expected liability from injuries from the product, and litigation related thereto -- the revenue to be generated.

 

      Now, Congress, in its wisdom, decided that, instead of letting the market force these companies to make a better product—as we do for all other consumer products—it was going to make an exception for vaccines. And this is pretty much only true for vaccines, unlike other products. It passed the National Childhood Injury Act of 1986. And what that effectively did was give complete immunity from liability to vaccine manufacturers—for pharmaceutical companies—for their vaccine products. If you're injured by, pretty much, all vaccine products today—starting in 1986—you can't sue the manufacturer.

 

      And so, what that did is it took the normal market forces that we rely upon in this country to assure product safety—to make our planes better, our cars safer, our drugs safer, everything you see around us—and they removed that incentive. Corporations are set up to assure profits for their shareholders. That's a good thing. Right? That incentivizes them to do something productive for society. But the threat of -- either the threat of financially paying for harms, or the actual having to pay for those, conforms our conduct to assure safety for the public, too. And it makes that economic goal align with the public safety interest.

 

      Once that's been removed, what you're left with is what I think the scholarly literature would often be considered the weaker and second line of defense to assuring product safety. And that is the regulatory agencies. Okay? But here's where this second structural conflict comes into play. The same federal health agency that's statutorily required to promote vaccines is also required to assure safety. Promoting a product and assuring its safety can come into conflict.

 

      Congress has recognized that, intuitively, in other areas. When it comes to, for example, promoting transportation, Department of Transportation promotes all forms of transportation. But if there's a safety issue, it created a separate independent body, the National Transportation Safety Board, because it recognized there's a conflict there. So it separated those into two completely separate governmental agency boards, basically.

 

      Similarly, with nuclear energy, there is a department that promotes nuclear power in this country because nuclear power has its place, according to Congress. But they recognized that promoting nuclear power conflicts with assuring the safety of those plants. And so, it created a separate, completely independent board to oversee safety. That makes sense. But when it comes to vaccines, there is no separation. They're all handled in the same department. They're all part of the Department of Health and Human Services, which includes, as I mentioned earlier, the CDC, NIH, FDA, and a whole host of other health agencies.

 

      Now, if it would just stop there, maybe that -- that structural conflict alone is a problem. But there's an even worse structural conflict. And it's this. Okay? It is that you can sue for a vaccine injury under the 1986 Act, which is -- for those who are interested, it's 42 U.S.C. § 300aa-1 et seq. It goes up to, like, I believe, 34 sections. Not that long. It's an interesting read. And what it does is it creates the right to sue, but you sue the Secretary of the Department of Health and Human Services. You're suing the very department, the very health agencies that are responsible for vaccine safety.

 

      And they're statutorily required to defend against any claim that a vaccine causes injury. The Department of Justice is their counsel. There's no discovery as a right. You can't depose the pharmaceutical companies or get documents from them. And so the health agencies -- if they publish any study that shows a vaccine causes an issue, it will effectively use against them -- essentially is an admission against interest. So that, obviously, has a chilling effect.

 

      If CDC published a study showing that a certain vaccine can increase the risk of asthma—maybe it causes even .5 percent of asthma cases—that's going to cause an immense amount of liability to the federal government, effectively -- the money that comes out of money sitting in the treasury.

 

      So in any event, that is the structural conflict, I believe, that you were talking about. And it overlays how vaccines have been treated by our federal health agencies. And I think what it does is it creates an environment in which our federal health agencies view themselves as the defenders and promoters of vaccine products. And that's what Covid-19 vaccines -- it was dropped into that paradigm where professors at major universities have reached out to our firm.

 

      They can't understand why the science, like a natural immunity -- why there's, like, 70 studies showing that natural immunity is at least as good and is more robust than vaccine immunity, but yet, the CDC does two studies. They're not peer-reviewed, they're published in their newsletter, and then they rely on that for policy for vaccines. And when you understand that backdrop and the way in which vaccine -- the entire structure in which they work, it does make a lot of sense.

 

      I'll make two other super-quick points —and I know this is a long answer to your question -- and it's this. When you look at the budget in the federal health agencies, there is an Immunization Safety Office at the CDC. The only figure we've ever been able to find is that that office gets 20 million bucks. And it appears that a lot of their studies, in large part, have been about flu shot in pregnant women. They're about looking at policies that have been longstanding and seeing -- confirm their safety, whereas the CDC's budget is in the billions for promoting and purchasing vaccines. And overall, there's billions and billions more spent on the promoting and defense function. And so, I think that you could see that structural conflict play out in terms of dollars as well.

 

      And so, that is the overall paradigm I think anybody who's going to litigate in this arena needs to understand. And here's, I think, why. I think, over time—over the last 30 years—that constant public promotion by federal health agencies has created a cultural cognition in the minds of most Americans around these products that are not necessarily -- that are often based on conclusory statements that are not based, necessarily, on underlying substance. And you're going to deal, oftentimes, with a trier of fact that has a cultural cognition about these products— because they are products. That is the result of that structural conflict that has driven, almost without any opposition—there are no class-action attorneys, there's no product liability attorneys, there's pretty much nobody pushing back on whatever narrative the pharmaceutical companies and the health agencies, who, in unison and lockstep, promote these products over the last 30 years.

 

Robert Destro:  Well, that's a great segue into -- you were talking about the trier of fact and about this understanding. But most attorneys who are going to be getting involved in these cases—or who have filed them—are imagining that they're going to be able to get access to records and to do some discovery, perhaps even, in their wildest dreams, take Tony Fauci's deposition. What has been your experience in terms of getting information out of the FDA? And then I know that you're currently engaged in some very interesting FOIA litigation to get access to these records. Tell us a little bit about that.

 

Aaron Siri:  Sure. In terms of getting records out of the federal health authorities, the most efficient way, typically, is through a Freedom of Information Act request. And when you say, "interesting," I think you're referring to two recent FOIAs that we have -- I think got a little publicity. One is that, on behalf of a group of over 30 scientists across the country at major universities, we filed a FOIA request with the FDA to release all of the data relied upon to license the Pfizer vaccine—Pfizer Covid-19 vaccine.

 

      The FDA has been saying for months they intend to be absolutely transparent when it comes to this product and licensure of this product. And these independent scientists at major universities and medical schools across the country, they wanted to see that data. The FDA did not give them anything. And then when they did not, we brought a lawsuit for them. And in the exchange of our, effectively, briefing, thus far in the case—it's in the form of a status report—the FDA has taken the position that they want to produce, at a clip of 500 pages per month, the, apparently, over 320,000 pages of documents that Pfizer provided to the FDA, which the FDA relied upon to license its product. Working out that math, that's over 20,000 days to produce the documents that they reviewed in 108 days to license the product. So that would take us to the year 2067, if I got that math right.

 

      So that's one case. And the judge has scheduled a conference and ordered some additional briefing. And so we're going to brief that and, I guess, see what the judge has to say on that one. And then the other FOIA request I think you were referring to was with regards to natural immunity. And as you know—and I think everybody knows, at this point—the CDC and the federal government have taken the position that if you're vaccinated, you can keep your job, you can stay in school, you don't need to be separated from the military, and you can engage in most of the other things we think of when we think of liberty under the Constitution—go into a restaurant, walk in the street, and enjoy the normal city life, most places.

 

      But if you're not vaccinated with the Covid-19 vaccine, the federal government has taken the position that you need to be separated from the military, that you, a federal employee, need to be separated from employment. You need to be fired from your job. And also is encouraging, it appears, for schools to mandate this product and expel students whose parents -- who are not complying with the Covid vaccine mandate. And then, obviously, they have also mandated it for hospital workers, and so forth.

 

      And so the question is this: the CDC has numerous documents clearly showing that those that have received the vaccine can still become infected and transmit the virus—published studies with precisely that. And the question then is, "Well, okay, you're going to let folks who are vaccinated enjoy all their civil liberties, even though you know—you have documentary proof—that they can become infected with, and transmit, the virus. Well, do you have any documents --" my client, ICAN, wanted to know "-- does the CDC have any documents showing that those with natural immunity who aren't vaccinated—those who were previous infected—can they also become infected with, and transmit? Is there any proof that they can do that?"

 

      And so we submitted a FOIA request to the CDC asking precisely that question. And the CDC's response is that, no, they have no records. They have no records of anybody that's been previously infected with Covid and is unvaccinated becoming re-infected and transmitting the virus.

 

Robert Destro:  Well, this raises a couple of questions. Considering we're billed as doing a litigation update, that the -- I should tell everybody I've done quite a bit of looking. There's not a really good place yet where we can see where all the pending cases are and what their status is. And so we will try and make that available as soon as we find one. I've tried to avoid giving you links to very partisan-style organizations because what we really want is just kind of a what's going on around the country.

 

      But I want to come back to this question about the culture war around the vaccine and to raise a question that I certainly have written about and spoken in FedSoc settings about. And that is how do you litigate these cases? I mean, you've got -- most of the cases that we're looking at now are medical exemption/religious exemption. The OSHA case is about the authority of the federal government, in the first place, to litigate these cases. And so you've got almost a -- kind of a Youngstown Sheet and Tube v. Sawyer. Where did OSHA get the statutory authority? Where did the president get the statutory authority to even issue an executive order? Because if he doesn't have that authority, he's just ruling by decree.

 

Aaron Siri:  Yes.

 

Robert Destro:  So you have that question, which is -- I now believe, has been assigned to the Sixth Circuit to resolve by the multidistrict panel. But once you, then, get into assuming he does have the authority, then you, Aaron, were just raising the rational basis question, which is: well, you're drawing a distinction between the unvaccinated and the vaccinated. What's the basis for the distinction? Now, if you are a litigator, and you're going in to see some district judge who is affected by this kind of cultural background, this cultural conditioning, what do you say to her?

 

Aaron Siri:  Well, when you look at the landscape of all the cases -- and you're right, this is a litigation update. So when you look at the broad landscape of cases out there, from the cases that are challenging the OSHA mandate that says that employers with 100 employees or more need to vax or test their employees, to the federal government's mandate on federal employees, to health care workers, mandate for the military -- there's a lot of state mandates. There are local mandates. If I take my experience—in terms of litigating mandates from the past—and I apply them here, and you look at the cases that have been successful and those that haven't, there's actually a consistency, I would say, between the pre-Covid vaccine litigations and the current ones, and it's this: there's a consistent theme, I would say.

 

      When you're challenging a vaccine mandate, you typically need a basis that I would call a non-scientific basis for challenging it. That basis is often that the government agency department body that issued the mandate has exceeded their authority. That has typically been the most successful ground for challenging vaccine mandates in the past. That doesn't mean you don't want to raise scientific arguments in those cases as window-dressing equities—as secondary constitutional arguments—but you often will need an argument not of that basis to prevail. All you need to do is look at the dozens of cases out there—or the hundreds, over the last two, three years—and you can see that consistent theme.

 

      So going now to this OSHA case—the OSHA cases that have now been consolidated in the Sixth Circuit—you can see that principle play out, I think, quite well. OSHA is designed to regulate workplace safety, not public health. And President Biden's comments about the purpose of this OSHA regulation that he asked OSHA to implement, makes clear this is about public health in general, which is also something reserved for the states. But more importantly, all of OSHA's power really arises out of the Commerce Clause, and it really hinges on workplace safety.

 

      And so, I think the Fifth Circuit didn't find a difficult time issuing a stay saying this exceeded the OSHA's authority. Those arguments, courts are a lot more equipped to deal with. Judges are more comfortable, in my experience, parsing the lines of authority that agencies, departments, legislative bodies have than they do getting into the nitty-gritty science of things. And so, I think that's why this OSHA -- and our firm will also be one of the firms involved in the Sixth Circuit matter. But that's why I think that case is likely to be successful in terms of striking down that mandate.

 

      But there's another, probably, fundamental reason why the mandate shouldn't be, in the opinion of, certainly, many of my clients—and we've argued this recently and we'll see how that plays out, but it's a more difficult argument to make, admittedly—is that, going to your point earlier, what's the purpose of the mandate? Yes, the problem with the OSHA one is that it tries to regulate public health in general. But what is the real purpose? The real purpose is to prevent the spread of the virus.

 

Robert Destro:  Yep.

 

Aaron Siri:  The CDC director herself, on CNN, to Wolf Blitzer, said, "It doesn't stop transmission of the virus." And there's studies that CDC has done in Massachusetts and Wisconsin have borne that out. Those who are vaccinated and those who are unvaccinated—forget natural immunity, just unvaccinated, or vaccinated—both become infected. Both become infected and transmit the virus and have similar viral loads in their nasal pharynx.

 

      Well, the compelling state interest that's typically been relied upon in Jacobson and its progeny for saying that the state can impinge on fundamental rights such as bodily integrity and parental choice is that this product -- a product can stop infection transmission. But if it can't, then that compelling interest is not there. Then what's left? Just the impingement on the constitutional rights. Right?

 

Robert Destro:  Yeah.

 

Aaron Siri:  But as much as that argument is -- the problem is that it requires -- even though the science shows that, it requires overcoming the judge or the trier of facts' cultural cognition about vaccines in general—that they do stop infection transmission. And even when the CDC is saying it doesn't, you will face a very hard time getting a judge -- getting, I think, many judges to, nonetheless, go against that cognitive norm that they have about these products.

 

      So to sum up, I would say that if you're going to bring a challenge to a vaccine mandate, you typically have a basis, such as exceeding authority, that's a clear legal line that judges can just easily wrap their head around. And then, use any of the backup arguments -- the scientific arguments as a backup, including because -- whenever there's any question at all about science, it usually—almost always—goes to the favor of the government.

 

Robert Destro:  Well, you know that --

 

Aaron Siri:  I hope I answered your question.

 

Robert Destro:  No, no, no. You did. In fact, that's great. Because the -- when we were talking yesterday, you made this specific point. Whatever you do when you litigate these things, don't litigate to change the policy. Litigate for your plaintiff. And you were worried about how your plaintiff is going to get lost in your fight with the Secretary of Defense, for example. And you gave a really, I think, interesting example about the late Ruth Bader Ginsburg and how she prevailed in one of her most basic cases by focusing on a man. And she didn't lose her plaintiff. What do you mean by don't lose your plaintiff?

 

Aaron Siri:  Well, as we all know, there are three branches of government. Article III of the Constitution only gives courts the authority to decide cases in controversy. And that, basically, means you typically -- most places, it means that you need an individual with a harm or an imminent harm. And courts—and, I think, many judges—take that obligation seriously -- that they're there to adjudicate the issues and harm that's before them in that specific case.

 

      Now, of course it may have wide policy ramifications. But in the first instance, that is what judges—courts—are designed to do. And I think my comment to you was just that some of the cases, they focus -- it's important to focus on the policy, to a degree. But you also want to make sure that you plead your client's case in all of those cases and that you articulate precisely why your client is injured by it, how it affects your client's rights, and then, from there, build-out. But don't let your client and specific plaintiff, or plaintiffs, get lost in the mix. I think that a lot of times, that can make the case -- it can have a negative consequence a lot of times, and not be helpful. That's what I believe we discussed.

 

Robert Destro:  Yeah. And can you give us an example? You and I talked yesterday about a case you litigated against the Massachusetts Department of Health. I thought that's a good illustration. So you can tell the audience about what we mean when we say that.

 

Aaron Siri:  Okay. Sure. So in Massachusetts, last year, I believe, at this point, the Department of Health—the State Department of Health—announced that all those attending college and school in Massachusetts, up to a certain age, need to receive the influenza vaccine, the flu shot. Our firm got calls, as we often do, about these issues. And we ended up bringing a case on behalf of one college student and one school-age child on behalf of the parents.

 

      And to the principle that we discussed earlier—just to step back, and then I'll talk about specific plaintiffs—we could have just went in and said that all of the meta reviews of all the scientific literature around the flu shot have concluded that it doesn't reduce community transmission of influenza, right, meaning it's personal protection. So if it's just personal protection -- look, we want people to take their asthma inhalers and their statins and exercise, but we don't kick kids out of school for not doing those things. There's not even a rational relationship between the two things, then.

 

      But to the principle I talked about earlier, we first look for legal arguments that a judge would find easier to deal with. And so, in Massachusetts, there is -- the statutory scheme actually does provide that the state health department can require additional vaccines not otherwise provided for in the Massachusetts statutes to school-age children. But it didn't provide that authority to the Department of Health vis-a-vis colleges. It didn't say you can require additional vaccines not already required by the state legislature for college students.

 

      So one argument we had was, well, the legislature clearly made a policy choice there. It said, "For school-age children, we'll let the Department of Health require additional vaccines, but not so for college." And then, separately, it had a procedure for implementing the regulations, vis-a-vis school-age children, which it did not follow.

 

      Now, when pleading that case, we didn't just make those policy arguments. We certainly did. We, obviously -- those were count one and count two. And we did make count three, and then four, and so forth -- the constitutional argument that I discussed at the beginning. But we obviously -- we made sure to plead our plaintiff's case. The child at issue in that case had a serious reaction to the influenza vaccine in the past. But yet, one that didn't meet the strictures of the CDC's contraindication and precaution list, hence, couldn't get a medical exemption. There's no religious exemption. There was no other exemption the child could get.

 

      And so, we made sure those facts were very clear about that particular child's specific situation. Good facts make good law. Bad facts make bad law. We've all heard that. And similar, there were a lot of particular -- I don't want to belabor, but there were a lot of very particular and unique facts about that college student as well. And we made sure that we pled all of those out so that we were talking about a very specific family and a specific college-age student. Their specific situations were clearly understood. The equities of their situations were brought to bear in the case. And then we overlaid that with the -- what I'll call the more technical argument of why the law should be -- this requirement should be struck down. We filed it. And the day before the Department of Health, Massachusetts, had to follow their opposition brief, they dropped the mandate.

 

Robert Destro:  Well, and this is a great way to get into that question because we have the political reality. We have the legislative and litigation reality that's going on. OSHA has just announced that it's going to put everything on hold for the time being. We'll have to see how that works in terms of the litigation. But can you talk a little bit about the politics of the litigation? We had talked about the attorneys general being involved, about what's the role of the legislature.

 

       I mean, The Federalist Society is in business to remind people that we have a limited government, that we live in a federal system. So there's a role for states. There's a role for individuals. One of the things I always tell my classes is that the beauty of Federalist 51 is that the framers gave us a system so that you always have someplace to go complain to. And so we have attorneys general getting involved. We have legislatures getting involved. Can you talk a little bit about that dynamic and how that affects how you litigate your cases?

 

Aaron Siri:  Yeah. I love your broad questions.

 

Robert Destro:  Well, the whole point is to let you talk, not me.

 

Aaron Siri:  Okay. Well, I guess I'll start by saying this -- and I'll try to make a few points that touch on that. One is that, on the cultural cognition point -- to the extent that you're one lawyer, going in on one plaintiff, challenging a vaccine mandate, it's a lot harder to overcome cultural cognition around these products. But when 24 attorneys general—which is what happened with Biden's OSHA mandate—write a letter to President Biden saying, "Your mandate on companies of 100 employees or more is illegal," and they file a suit -- when 24 attorney generals file a suit in court, that, I believe, in and of itself, changes that dynamic. It's not a fringe minority view, seeming to come in and -- it's 24 states going to a judge and saying, "We hold the view that this shouldn't be done." This is not coming from some fringe notion. This is coming from 24 states.

 

      Now, I don't think -- it shouldn't be that way. But obviously, there's what we would like individual civil rights and how they would like to be respected and treated, and then there's how they are respected and treated. And obviously, that helps. On that point, I guess I will say this. And I think this will answer your question, but I hope I'm not going too far afield. But it's this -- focusing on the Covid vaccine -- and all vaccines, they work differently. They have different safety profiles; they have different efficacy profiles. They all are different. People clump them into the term "vaccines," but they are quite different.

 

      With that said, with regards to the Covid vaccine, as we talked about earlier, the sign shows it doesn't prevent infection and transmission. That's why the CDC says if you're vaccinated, you should still wear a mask. Why do they say that? They said that on the heels of finding out in their Massachusetts study, oops, it doesn't prevent infection or transmission.

 

      Now, if it doesn't do that, then what is the compelling state interest? Well, I've seen pundits say, "Well, the vaccine still reduces hospital admissions. And we don't want to overburden the hospital system." Right? And so, for that reason, the state can still require you to have it to have a job, to go to school, to be in the military, and so forth.

 

      But if we let that argument stand, if that's going to be the basis for a compelling state interest, that's very concerning. Heart medicine, statins, reduce the burden on hospitals. Less people go in with heart attacks. Does that mean, to alleviate the burden on the hospital system, which kills -- is the number one killer of people in the country—heart disease. Right? It kills more people than anything else. So to alleviate the burden on the hospital system, can we force people to take a statin? And if they don't, they can't keep their job? They can't go to school?

 

      Because if a statin -- people who have heart disease is not contagious -- unless they're cooking really bad meals for their friends all the time, I guess it's contagious. But if the Covid vaccine also is not preventing infection and transmission, in that regard, they're similar. And so, that's why, when it comes to -- so that's one thing. I'll add another layer, and then I'll get to the conclusion.

 

      The other layer is this: with statins, the reality is, nobody makes you take them. And if you're injured by them, you can sue the pharmaceutical companies. But when it comes to the vaccines -- and in particular, let's just talk about Covid vaccine -- if you're injured by that product, you can't sue Pfizer, Moderna, or J&J. You can't sue them. You can't even sue them for willful misconduct under the PREP Act unless HHS, DOJ, agree that you can, effectively. Obviously, they're promoting the product. And they're supposed to be regulating it. For them to admit there was willful misconduct, it's going to boomerang on them. Right? It means they failed to do their job.

 

      So if you're injured by the product, you can't sue the company. The federal government has given them immunity from liability. And the only recourse, at the moment, is something called the -- a program called the CICP, which you have to basically prove injury in fact. Good luck doing that. And there's almost no damages to be had—fifty grand in lost wages and medical bills. That's about it. An award, potentially, for death, if that happens.

 

      And in any event -- so the federal government is giving immunity liability to these companies. You can't sue them. The federal government is conducting clinical trials, as they call it, in the manner in which they're conducting them. There’s lots of scientists that have raised legitimate concerns about their conduct. There are participants in those trials, including, for example, one of our clients, the de Garay family, whose daughter participated in the Pfizer clinical trial, who ended up in a wheelchair on a feeding tube, and which Pfizer reported to the FDA as a functional abdominal pain. And we're in the process of going back and forth with the FDA on that.

 

      So there are questions -- are legitimate questions, to be raised. So at the end of the day, if the FDA—if the federal government—wants to not let you sue, fine -- for injuries, fine. If they want to not do long-term studies of safety—we don't have years of safety data—fine. If they want to permit the companies to eliminate the placebo control group after two/two-and-a-half months into the trial, fine. If they want to do all these things, I guess, you know, what can you do?

 

      But the very last line of defense, the last stop on that train, is your ability to say no. And if you can't say no without losing your job, going to school, being able to go into a store, then there is no backdrop safety net. That's the backstop to all of this. They don't want to release the clinical trial data completely until the year 2076? That only becomes an issue because you have to take it. They don't want to let you sue for injury? That only becomes an issue because you were required, you were coerced, into taking it. All of these things are really an issue at the end of the day because of the coercion. And it's the coercion that also, then, drives the censorship. It drives all of the pernicious things that we see.

 

      And it goes all the way back to where we started this whole conversation. Why are drugs treated differently than vaccines? It's because the government coerces them, and promotes them, and defends them. If they didn't do those things, they would just be treated like other drugs that we value in society and the government wouldn't feel the need—in order to defend their own reputation, if nothing else—to put their thumb down on anybody saying anything bad about these products. And that's dangerous. That's scary.

 

Robert Destro:  Well, it is scary. And that's where we're seeing lots of, what you would call in another context, secondary effects of this -- basically, the lockdown, the monopoly that the government has over the information. I mean, they don't want to let you sit this thing out for another 50 years. For those -- many of us will not be around in 50 years. But more importantly, we need that information to make informed consent. And we also -- when you start looking at the constitutional rights side of this, where you say, "Okay. Let's assume you have the authority. Okay. Let's assume that you have a rational basis." The Fourth Amendment says you're not allowed to search or seize without a particularized form of an inquiry by a judge. But what they're doing is seizing everybody and saying, "Look. You've got to take this jab, or you lose your job."

 

      The federal contractors are between a rock and a hard place. And if you turn, as one of my good friends, who had an anaphylactic reaction to the Moderna vaccine -- she joined a Facebook group. And Facebook then censored the group. All of them were -- it was a private group. They were all survivors of adverse vaccine events. They were all enrolled in CDC and FDA studies. And Facebook shut them down. You know? And the idea is, "We don't want you spreading misinformation." Well, if there's only one approved narrative, and you can't get behind it until 2076, then you don't have a free market anymore, you don't have civil liberties anymore, and you don't have any effective recourse because it then becomes a pipedream for somebody like me to depose Tony Fauci because there's no way to do it.

     

Aaron Siri:  As I often say, if the government can coerce what goes on or in your body, then what's the value of any other liberty interest? And to this notion of 2076, I believe in freedom and liberty. And I believe most Americans do, too. They believe in individual rights. They want individual rights. They want those to have meaning. I think Americans should be able to get a -- if they want a product where the FDA wants to withhold safety completely -- all of the data until 2076, Americans should be able to get that product if they want. That's the point—if they want.

 

      And Americans should be able to take a product that they want, even if the federal government gives immunity to any liability for injuries to the pharmaceutical company. Fine. The issue is when they can't say no, it’s when somebody who's making ends meet—lives paycheck to paycheck—and is now told, "You take this product, or you don't have a job," because the government is making that decision, is coercing that. That's where I think you get into real impingements on individual and civil rights that are concerning.

 

Robert Destro:  Well, this is a -- we have a number of questions that I want to get to before we run out of time. One of the folks who is attending says, "I work for the legislative branch. I realize that many of the cases being brought wouldn't apply to me, but as a government employee, how far do my rights reach, since I'm repeatedly told, 'Oh that decision doesn't apply to us.' Our boss says we have to get it. So why don't I just have to do it?" And just as a precursor to the question, Federalist 57 talks specifically about -- we're in real danger if laws don't apply to the legislature that apply to everybody else.

 

Aaron Siri:  I think you just said it. I think you just answered the question.

 

Robert Destro:  Yeah. I mean, this is the -- where are these -- there's a very interesting lawsuit that Robert Kennedy, Jr. and Children's Health Defense has filed against Facebook, where they basically have said that "you have admitted that the federal government is coercing you." We see that in another context. We see that, as well, in terms of Facebook and YouTube, and others, censoring people at the behest of state election officials. So how does the fact that the government, and it looks like big tech, are shaping the narrative together -- how does that shape the litigation and the understanding of the judges?

 

Aaron Siri:  Well first, obviously, that's very concerning. Right? I mean, that goes to the heart of the First Amendment. And Biden's press secretary made clear that she, the White House, and the Surgeon General are working directly with these tech companies to identify and censor specific posts. But to answer your question more directly, when you look at the decisions that have come out—and there have been a number of cases already filed by many, and there's a number of decisions with regards -- that have challenged the removal of posts and so forth by big tech on exactly that basis—That it was done at the behest—as a cat's paw, basically—of the federal government.

 

      And judges have essentially said, "Unless you have direct proof of the federal government specifically directing that specific censorship --" they've dismissed those cases. So far, that's how they've all fared to date. It's not good enough that Adam Schiff -- Representative Adam Schiff sent a letter asking big tech to censor certain information, judges have said. So, so far, those cases have not fared well. None of them have gotten past the motion to dismiss stage.

 

Robert Destro:  Very good. And then there's a number of other questions. What about the -- and I see we only have a couple more minutes. And I've had some technical difficulties in getting that PDF of the Jacobson background out. So I will ask our friends at FedSoc to make that available on the event page afterwards. We'll make the slide available as well. But what about the private employers who—notwithstanding that OSHA has put this on the backburner—say, "Well, we want you to go ahead." Are they immune, too?

 

Aaron Siri:  They are usually protected by workers' compensation. So that actually is one of the only real exceptions to the ability to get compensation for a Covid vaccine injury at the moment, is if your employer does require it and you're injured in the workplace, you can file a workers' comp case. So at most, the employer is typically just looking at a potential increase in their premium for workers' compensation.

 

Robert Destro:  Right. And that's where we see the -- kind of that assumption is that everybody needs to be vaccinated because -- as a state department blog post was referring to the unvaccinated as "plague rats," which is that cultural understanding that the people who are not vaccinated are dangerous to themselves and other people. But with that, I think we're just about out of time here. Aaron, I want to thank you so much for participating. Thank you to our friends at The Federalist Society for setting this up and for the great technical assistance. And I'm sure we'll have other opportunities. Please, all of you who are listening, let us know about other programs you'd like to see along these lines, and we'll go from there. Thank you so much.

 

Aaron Siri:  Thank you.

 

Evelyn Hildebrand:  Thank you. And I'll have to add -- oh, I apologize. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for participating and sending in questions. I'm sorry to cut this short. I know you could go a lot longer. We welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today.

 

      We are adjourned.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.