Law.com

Lawyers Stumped by Measles Outbreak

BY JUSTIN CHAN

As the measles virus continues to spread across the country, furious parents are looking for remedies, both medical, and, of course, this being America, legal as well.

But, in this instance, health care lawyers agree: No matter how angry people are that they and their children have been exposed to a disease many thought had been eradicated in this country, there is almost no recourse under law. No federal vaccination mandate exists and many states allow parents to claim medical and religious exemptions, meaning that people cannot be held criminally responsible if their children are the source of an outbreak.

Can those parents be held civilly liable instead? It depends, said Meredith Duncan, a health care lawyer at Polsinelli.

“If there were a situation where the parents misled a school or institution that had a [vaccination] policy, that would open them up to civil liability,” she said. “But if they’re refusing treatment in states where the mandate is not necessary, it is difficult to make a case.”

Parents have more flexibility if the infection spread at a private school or institution than at a public school, Duncan explained. Public institutions follow state regulations, so if a state allows exemptions, parents are not required to vaccinate their children to send them to public school. Private institutions, on the other hand, function independently and may have stringent vaccination rules, making it easier to hold parents accountable if they don’t vaccinate their children.

Duncan noted that any attempt to bring a civil case is complicated by a broader debate about whether the state can step in if it feels an unvaccinated child’s parents failed in their parental duties.

“This is not just a vaccination issue,” she said. “This is also a child welfare issue. I think that’s what makes civil liability against parents so difficult.”

A recent case in Michigan highlighted a new willingness to characterize the failure to vaccinate as indicative of parental neglect: A court was asked to order four children to get the measles vaccine against their parents’ wishes. The child protective service workers overseeing the children also asked to remove the mother and father’s parental rights. The judge has yet to make a decision, but the case is one that ventures into “new territory,” the parents’ attorney told the Detroit Free Press.

Making an argument to hold doctors civilly liable may be hard as well, said Kathryn Stalmack, also of Polsinelli, a specialist in health care litigation. Although these parties face a legal liability for exposing people to certain infections such as H.I.V., they don’t necessarily run into such risk in cases involving diseases like measles. Physicians don’t need to tell patients about the potential consequences of foregoing a measles vaccine and are, therefore, not legally responsible if an outbreak happens.

“Without a federal or state requirement mandating physicians to inform, it’s going to be very difficult to prove [liability] in a civil matter,” Stalmack said.

Given the paucity of viable legal options, states have recently pushed for restrictions on exemptions. California officials introduced legislation to get rid of vaccination waivers for non-medical reasons.

In the meantime, another option remains: class actions. “Most attorneys are not going to be interested in suing the individuals,” said Lowell Brown, head of Arent Fox’s health care practice group. “They’ll be interested in class actions maybe against associations or organizations that might be urging parents not to vaccinate their children.”

Those targets include groups like the National Vaccine Information Center, which suggests a link between vaccinations and regressive autism. Although multiple agencies such as the Centers for Disease Control and World Health Organization have repeatedly disputed the relationship, the NVIC’s insistence that there may be one has led to accusations of spreading misinformation. These claims can be pursued under the law, but chances are there won’t be many, given the current state of the legal system, Brown said.

“People who propagate debunked scientific or medical theories are not subject to liability,” he said. “They ought to be subject to professional derision and, perhaps, some kind of penalty.”

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Midweek Recess: Girls Gone Wild, Supreme Court Superheroes and Alaska’s New “Law School”

BY LAW.COM STAFF (Justin Chan, Nathalie Gorman and Laurel Newby)

Welcome to Law.com’s Midweek Recess, in which we round up some tasty tidbits from the week’s legal news cycle. We’ll be here every Wednesday, so grab a cup of coffee and take a little break. It’s all downhill to the weekend from here.

Not ‘Wild’ about You – Joe Francis, of Girls Gone Wild fame, is ticking off a judge by refusing to return three cars belonging to his now-bankrupt company. Francis claims that he couldn’t retrieve the cars (which are “(i)a 2007 Cadillac Escalade… (ii)a 2012 Bentley flying Spur… and (iii) a 2012 Bentley Flying Spur,” in case you care) because a Mexican strip club owner took them as a consolation prize after a promotional deal between Girls Gone Wild and his, erm, venue, fell through. Francis’s lawyer argues that he cannot pay cash for the cars because “he doesn’t have any money.”

Sandra Klein of the U.S. Bankruptcy Court was unimpressed with that argument. She opined that Francis “seems to have a rather nice lifestyle” for someone who’s totally impoverished, citing his recent Mexican voyage with Kimye as evidence. She also noted in the court papers that Francis’s story about the strip club owner was somewhat “suspect,” since he keeps changing his mind about where the club is supposedly located.

Klein recommended that an arrest warrant be issued for Francis for civil contempt, pending his return of the vehicles and his payment of fees he owes the new trustees of Girls Gone Wild.

We understand that Francis is upset about his fall from whatever sort of grace it is he once had. We get that he probably just wants the cars as a reminder of the times when he was able to make tons of money off exploiting young women. Nonetheless and even so–really? Might be time for him to call his friend the adult entertainment impresario and get them back. Bentleys are nice, but not so much worth jail time.

Fill ‘Er Up – A jury in West Palm Beach sent a request to the court for a whiteboard and markers — and “a big bottle of wine, LOL.”

We’re not sure about the nature of the criminal case, but we gather it was a stressful one for the jurors, requiring lots of diagrams and plenty of liquid courage. 
Or they were all just bored out of their minds and looking to get a rise out of the clerk and the judge, in which case, well … we’re with you, Florida friends. We’re with you.

Can You Say SCOTUSCon? – Our colleagues at The National Law Journal recently had the brilliant idea of asking attorney Steven M. Klepper of Kramon & Graham in Baltimore to imagine each of the Supreme Court justices as superheroes (he’d done this previously for former justices on a blog).

The result? Pure high-court-nerd delight. If you like this sort of thing, you’ll spend an inordinately gleeful ten minutes clicking through the slideshow of The Nine in action-hero gear (it definitely makes a change from the robes).

So, who was whom? Well, we don’t want to give it all away, but, a few tidbits (PARTIAL SPOILER ALERT): Justice Clarence Thomas is Hawkeye, because, as Klepper puts it: “Hawkeye claims, ‘I see better from a distance.’ Thomas sees constitutional issues from 227 years’ distance.”

Justice Stephen Breyer is Batman, which makes us happy, partially because we feel like he would really get a kick out of it. 
And RBG is Wonder Woman. Obviously.

In Alaska Law School We Trust…or Maybe Not – Ever thought about visiting Alaska, or, better yet, studying law there? Well, one woman decided to take matters into her own hands and create its first in-state legal institution, which she questionably named “Alaska Law School, In God We Trust.” Sounds like a great idea, right? The only problem is that no one approved its establishment, according to the Alaska Dispatch News. The Alaska Commission on Postsecondary Education now wants the state attorney general to issue a cease-and-desist notice to Daun DeVore, the law school’s purported founder and dean until the situation is resolved.

The school’s website, thealaskalawschool.com, is now defunct, but it reportedly described some very unique educational offerings. For instance, law students tired of taking classes and seminars in boring, old classrooms might instead take them inside two large ships (yes, you read that correctly). The school promised “a global law library of Alexandrian proportions, comprised of hard copy law books, many in their original languages world wide.” In addition, the school would host “a talent show and Reindeer Award (much better than an Oscar)” for Alaska’s legal community.

While the whole enterprise sounds like it has the potential to give new meaning to the phrase “cruising through law school,” it seems like it’s most likely a sham. Too bad. We kind of wanted a Reindeer Award.

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This Week by the Numbers: Pay Gap, Job Numbers and… Sexting?

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BY JUSTIN CHAN AND SHONITRIA ANTHONY

12

Nearly 10 years after the U.S. Supreme Court ruled anti-sodomy laws unconstitutional in Lawrence vs. Texas, 12 states still have them on the books.

 

37

A professor claims his former lover/ research assistant sent a picture of his genitals to his wife and 37 associates — and he’s suing her for defamation. Just one more reason why sexting is never a good idea.

 

82%

What the buck? Female lawyers and judges earn 82 percent of what their male counterparts make, according to a report from The New York Times blog The Upshot.

 

$38.4 million

The amount that one of Samsung’s damages experts says the company owes Apple if Samsung is found to have infringed Apple’s patents. Apple’s damages expert named a figure over $2 billion. We could say that we’re surprised by the disparity between the two estimates, but let’s be real: These parties don’t agree on much.

 

88.6%

The percentage of Columbia Law School’s 2013 graduates who found full-time law jobs that were not paid for by the school by itself. That’s more than any other school, according to a trove of data released by the ABA on how last year’s graduates are faring in the job market. But don’t tell that to the folks at Whittier Law School, which rounds out the bottom of the list. More than half of that school’s graduates were unemployed or underemployed nine months after graduation.

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