The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recent talk about vaccinations reminded me of two recent cases that I meant to blog about:
1. Phillips v. City of New York (2d Cir. Jan. 7, 2015) reaffirms that the government may mandate vaccinations. It may mandate vaccinations for everyone, and it can certainly mandate them for everyone who goes to public school. Seems quite right to me; there may indeed be a presumptive constitutional right to be free from unwanted medical treatment, but such a right can be trumped by the very strong public interest in preventing people from becoming unwitting carriers of deadly illness. (And not immunizing oneself creates a threat not just to others who choose not to immunize, or whose parents choose not to immunize them, but also to others who can't be immunized because of age or medical condition, or whose immunity is imperfect.)
Such statutes often do allow religious exemptions, but that's not a matter of constitutional obligation. In Phillips, the one of the plaintiffs did try to claim the exemption, but the trial court found that her "objections to vaccinations were not based on religious beliefs," and the plaintiff didn't appeal that finding.
2. Now a more unusual case, Kagen v. Kagen (Mich. Ct. App. Dec. 18, 2014) (some paragraph breaks added):
Following the parties' divorce, defendant Richard Kagen discovered that plaintiff Lenore Kagen had discontinued their children's vaccinations several years earlier [long before the divorce]. The pair could not agree on whether the children's vaccinations should be updated and brought their dispute before the Oakland Circuit Court.
The circuit court failed to describe the applicable burden of proof and made no consideration of any statutory best interest factor in deciding the matter as required by [precedent]. The court also abused its discretion in excluding from evidence government-issued statements about the safety, potential risks, and benefits of childhood vaccinations. We therefore vacate the circuit court's June 27, 2013 opinion and order rejecting Mr. Kagen's bid to vaccinate the children and remand for a continued hearing….
Mrs. Kagen asserted that she maintains religious objections to employing vaccinations that contain poisonous ingredients. She further contended that Mr. Kagen previously shared her concerns and joined her decision to forego further inoculations. Mr. Kagen, on the other hand, claimed that he was blindsided by his ex-wife's religious reformation and was completely unaware of the cessation of vaccinations until five years later.
Over Mrs. Kagen's objections, Mr. Kagen secured four vaccinations for their eldest daughter in February 2013. Mrs. Kagen then filed a motion in the circuit court to prevent any further unilateral action on Mr. Kagen's part, and Mr. Kagen filed a countermotion to update both children's vaccinations. The circuit court conducted a brief evidentiary hearing at which both parties testified. Mrs. Kagen reiterated that Mr. Kagen had joined her decision and she therefore filed documents with both the school and pediatrician indicating her intent to waive vaccinations for the children. Mr. Kagen testified that Mrs. Kagen never discussed with him any plan to stop vaccinating the children, and expressed his desire to have the children immunized.
After excluding the only expert evidence offered at the hearing – four statements from government agencies regarding the benefits of vaccination proffered by Mr. Kagen – the court denied Mr. Kagen's motion to vaccinate the children. The court credited Mrs. Kagen's testimony that the parties had previously agreed not to vaccinate the children. The circuit court concluded that Mr. Kagen failed to present sufficient evidence that a change in this course of conduct was in the children's best interests.
The court of appeals overturned the trial court's ruling:
A. The trial court didn't explain what burden of proof it applied – "whether the court utilized the preponderance of the evidence standard as required or incorrectly applied the stricter clear and convincing evidence standard" – and didn't explain how it was considering the best-interests-of-the-child factors. "Given these failures, we are unable to review the circuit court's best-interest analysis." The court of appeals therefore returned the case to the trial court for a further hearing, at which the court has to determine the children's best interests, by a preponderance of the evidence, and explain its reasoning on the record. "We will retain jurisdiction and consider the propriety of the circuit court's decision after an adequate record is made."
B. In deciding whether vaccination is indeed in the child's best interests, the trial court refused to admit government reports (from the Centers for Disease Control, the National Institutes of Health, the FDA, and a Michigan public health agency) on the grounds that they were hearsay – out-of-court statements made by people who weren't there to be cross-examined. That's often a sound basis for excluding evidence.
But not here, said the appellate court: The Michigan Rules of Evidence (like rules in many other jurisdictions) have an exception to the hearsay rule for statements that
hav[e] equivalent circumstantial guarantees of trustworthiness [to those justifying some of the other hearsay exceptions], if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
And these factors, the appellate court said, justifying admitting the reports. In particular, the trial court erred in excluding the reports on the grounds "that the best evidence about the safety and necessity of childhood vaccinations would have come from the children's pediatrician." The appellate court replied:
The pediatrician's live testimony would be nonhearsay derived from firsthand knowledge. However, as noted by Mr. Kagen, the children's pediatrician is a general practitioner and likely does not possess detailed personal knowledge on the safety, effectiveness, and potential risks of immunizations. The four reports proffered by Mr. Kagen were prepared by experts in the field of child immunizations and were based on scientific study. The fact that the reports were otherwise hearsay does not render them less worthy of belief. And, as noted by Mr. Kagen, it would impose an unreasonable burden to expect him to present the testimony of the government agents who compiled or prepared the reports.
Moreover, the evidence was reliable…. All four reports are official (formal) statements by government agencies. The presentation of this information in a public forum and as part of the authors' official duties suggests "that the declarant would have been likely to consider the accuracy of the statement when making it." … "The principal basis for the presumption of trustworthiness of public records is the assumption that public officials will properly perform their duties with accuracy and fidelity. Officials have the duty to make accurate statements, and this special duty will usually suffice as a motive to incite the officer to its fulfillment."
The proffered materials are also highly relevant to a material point, as acknowledged by the circuit court. The focus of the hearing was the parties' disagreement on childhood vaccinations. Mr. Kagen believed such vaccinations to be safe, necessary and in the children's best interests while Mrs. Kagen thought they are poisonous, unnecessary and contrary to the children's best interests. The opinions of these particular government agencies would certainly assist the fact finder in resolving whether the best interests of the children would be served by vaccination against disease.
And, finally, "the interests of justice" would be served by relying on the reports, rather than requiring parties to hire experts who could be cross-examined:
This is a custody matter; it would be cost prohibitive to require Mr. Kagen to present high-paid experts to testify regarding the benefits and safety of vaccinations. It does not unduly burden Mrs. Kagen's ability to present her side of the dispute; there are a plethora of studies regarding vaccination ingredients and side effects that she could present as well, assuming that the studies likewise meet the requirements of MRE 803(24).
The appellate court rejected, however, Mr. Kagen's argument that the trial court should have "take[n] judicial notice that vaccinations save millions of lives worldwide and have been deemed safe" – i.e., accepted this as uncontroversially true, even without requiring the introduction of evidence, the way a trial court could take judicial notice that Oct. 31, 2014 was a Friday:
Pursuant to MRE 201(b), for a trial court to take judicial notice of a fact, it "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
As Mr. Kagen's own evidence supports, there is an ongoing international debate regarding the risks and benefits of childhood vaccinations. This simply is not the type of fact over which a court may take judicial notice.
Finally, as to the supposed we-won't-vaccinate agreement between the Kagens, the appellate court responded thus:
The circuit court's decision to bind Mr. Kagen to his prior agreement is part and parcel of its failure to adequately consider the best interests of the children. Whether the parties had previously agreed on a course of preventive medical treatment for their children is certainly relevant. However, Mr. Kagen's reasons for changing his mind are equally important as they pertain to the children's welfare. On remand, the circuit court should consider these factors as relevant to the best-interest analysis.
Generally seems like a very sound analysis.