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Vax skeptics bellyflop in challenge to Houston hospitals’ mandatory jab policy

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(Reuters) - There may someday be a thoughtful legal challenge to a COVID-19 mandatory vaccination policy. But a heavily-publicized suit against two Houston hospitals that require workers to be vaccinated was not that case.

On Saturday, U.S. District Judge Lynn Hughes of Houston dismissed a suit by nurse Jennifer Bridges and 116 other health care workers at Houston Methodist Hospital and The Woodlands Hospital who alleged that they faced wrongful discharge from their jobs because they refused to be vaccinated. It took the judge a mere five pages to dispose of Bridges’ claims that she and other employees were being forced to serve as “human guinea pigs” in a medical trial, in violation of Texas employment law and federal protections for human subjects in clinical experiments.

“Bridges has not been coerced,” Hughes wrote. “Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

The workers’ lawyer, Jared Woodfill of the Woodfill Law Firm, had touted this case as “unlike anything seen in American jurisprudence,” and warned Hughes in his brief opposing the hospitals’ dismissal motion that “getting this wrong will have grave, wide-spread consequences.”

That brief, like the plaintiffs’ complaint, raised the specter of Nazi experimentation on concentration camp inmates. Woodfill’s dismissal opposition also cited the U.S. Supreme Court’s 1927 decision upholding forced sterilization of “feeble-minded” patients at a Virginia state institution, pointing out that the sterilization ruling, which he called “one of the darkest days in American jurisprudence,” rested on the same Supreme Court precedent that vaccine proponents rely upon to justify mandatory policies.

“Will this issue before this honorable court lead to yet another dark day?” the brief demanded dramatically.

I’d argue that Woodfill’s rhetoric was precisely the problem with the employees’ case before Hughes: It was heavy on dramatic pronouncements and conclusory assertions but light on legal arguments to refute the hospitals’ less-passionate but better-reasoned arguments for dismissal.

Plaintiffs lawyer Woodfill did not respond to my email query about the deficiencies Hughes described in the dismissal opinion. He told my Reuters colleague Karen Freifeld that he will appeal. "This legal battle has only just begun," the lawyer said in an email to Freifeld. "Employment should not be conditioned upon whether you will agree to serve as a human guinea pig."

Methodist lawyer Dan Patton of Scott Patton Law didn’t respond to my email. The hospitals said in a statement that the suit was frivolous, highlighting that nearly 25,000 employees have been vaccinated.

So far, there have been only a handful of cases challenging COVID-19 vaccine mandates, including a suit in federal court in Los Angeles by seven public school teachers and a case in federal court in Las Cruces, New Mexico, by two employees at a detention center. The Methodist hospitals’ case is the first to have reached a determination on a defense motion to dismiss. Its outcome suggests that vaccine skeptics who care more about winning in court than about drawing attention to their cause can definitely learn a few things from the hospital litigation.

The heart of the case against Methodist was the allegation that COVID-19 vaccination is, in effect, a giant human experiment because the Food and Drug Administration has only granted emergency use authorization for the vaccines. Under Texas employment law precedent, there are few exceptions to private employers’ right to fire workers at will. Employers cannot base such decisions on policies against the public’s interest. Nor can they require employees to commit illegal acts. In order to assert wrongful discharge claims, Methodist workers had to show that the hospitals’ vaccine mandate was not in the public interest and forced workers to breach the law.

The hospitals’ dismissal motion argued that plaintiffs failed on both counts. The Supreme Court’s landmark 1905 decision in Jacobson v. Commonwealth of Massachusetts makes clear that even public entities have a right to impose vaccine requirements to protect the public’s health. And the federal agencies charged with protecting workers’ rights, the brief said, have recently endorsed robust employer vaccine policies. “There is no law, governmental agency, or public policy that prevents Houston Methodist from mandating a vaccine,” the brief said.

The hospitals also offered more technical arguments that its vaccine-averse employees cannot rely on the Food, Drug and Cosmetic Act or the Health and Human Services Department regulation for research projects involving human subjects – the two bases for their demand for a declaratory judgment that the vaccine mandate is illegal. For one thing, the dismissal brief said, there is no private right of action under the FDCA, so plaintiffs’ declaratory judgment claim fails as a matter of law. For another, the hospitals said, the law applies only to the HHS Secretary, not to a private employer. And finally, the brief said, COVID vaccines are not a research project as the federal government defines clinical trials. The HHS regulation is simply irrelevant.

The plaintiffs’ 13-page opposition brief didn’t provide any precedent to back its assertion that, as a matter of logic, a vaccine program using medications approved only for emergency use is an ongoing experiment and therefore, “to put it plainly, according to federal regulations, Methodist employees are human subjects in medical research subject to federal regulation.” Instead, the brief argued that the case is one of “stark novelty,” addressing an unapproved vaccine that, according to the plaintiffs, has resulted in thousands of reports of adverse effects. (The CDC's reporting system calls for broad reporting of adverse incidents, which may not actually be caused by vaccines.)

The plaintiffs' brief devotes more than two pages to the alleged side effects, more than a page to the scary-sounding innovations of the Pfizer and Moderna vaccines and nearly a page to justifying their invocation of the Nazi-era Nuremberg Code, despite “uninformed, media-led ad hominen attacks.”

None of that helped with the Houston judge, who agreed with just about all of the hospitals’ arguments, from the public policy favoring vaccines to the inapplicability of federal regulations for clinical trials. If vaccine skeptics want to win in court, they’re going to have to find better arguments.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Read more:

Health workers sue Texas hospital over compulsory vaccinations

Judge tosses Houston hospital workers' lawsuit over vaccine requirement

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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