A group of Houston Methodist employees who sued the hospital system over its COVID-19 vaccine requirement have appealed a ruling dismissing the case.
Over the weekend, U.S. District Judge Lynn N. Hughes tossed the lawsuit, calling it “reprehensible” to compare the vaccine requirement to Nazi Germany’s medical experiments.
“Equating the injection requirement to medical experimentation in concentration camps is reprehensible,” Hughes said. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.”
[…]
Although the lower court judge thought the case had no merit, Woodfill could get traction from the 5th U.S. Circuit Court, known as one of the most conservative appeals courts in the country. On several recent occasions, the 5th Circuit has dealt blows to Hughes, a historically stubborn 79-year-old Reagan appointee.
The appeals court ordered him to re-sentence a defendant in a terrorism case who was accused of supporting ISIS overseas. After Hughes re-sentenced the man to the same abbreviated sentence, 18 months, which did not consider a sentencing enhancement, the government appealed and the 5th circuit removed the sentencing from Hughes’ court.
The 5th circuit also admonished Hughes for remarks he made on the record about female employees of the federal government. Hughes later barred the Houston prosecutor from appearing at the jury trial involved in that case.
More than half of frontline medical workers nationwide have received at least one dose of the COVID-19 vaccine, according to a survey from the Kaiser Family Foundation, a Washington, D.C.-based think tank. But as of April, nearly one in five said they did not plan on receiving a COVID-19 vaccine.
See here for the previous entry. It’s true that Judge Hughes can be a crank, but I kind of doubt that any of those previous instances will weigh on this case. For some analysis of the lawsuit and subsequent dismissal, this WaPo story has some good information.
Valerie Gutmann Koch, co-director of the University of Houston’s Health Law & Policy Institute, called the decision “another step in demonstrating the legality of these mandates, particularly in a health crisis like this.”
“There isn’t much there to rely on to argue these mandates should be illegal,” she said.
[…]
Akiko Iwasaki, an immunologist at Yale University, characterized the lawsuit’s claims as “absurd” in recent remarks to The Washington Post, noting that tens of thousands of people participated in the vaccine trials. The suit also repeats misinformation circulated widely online about the shots altering DNA.
The inoculations are seen as key to a return to normalcy, yet most employers have shied away from mandating them, concerned about the thorny politics and previously untested legal issues. Colleges and universities, along with Houston Methodist and a handful of other health-care institutions, are the exception.
Koch said the ruling shows “employer mandates of the covid-19 vaccine, particularly in the health care arena, are absolutely legal.” She said she expects to see more legal battles around vaccination mandates but noted she has “always predicted that they have very thin legal legs to stand on.”
There is precedent for vaccine requirements, she said, such as when health-care institutions require vaccinations during particularly bad flu seasons. Koch said she was “encouraged by the fact that this was dismissed as quickly and expeditiously as it was.”
Veronica Vargas Stidvent, executive director at the Center for Women in Law at the University of Texas School of Law, said the ruling is based on employment law in Texas, so the extent to which it sets a precedent for other jurisdictions is not clear.
“At least here in Texas, under this ruling, it’s pretty clear employers can require employees to get vaccinated,” she said.
Yeah, I don’t think it should be a surprise that Texas employment laws are much more favorable to employers than to employees. As Reuters notes, Judge Hughes wrote that “Texas law only protected employees from being fired for refusing to commit an illegal act and that the requirement is consistent with public policy.” I’ll be more than a little surprised if the Fifth Circuit decides that this is the place to take a stand in favor of the workers.
The Republicans are reprehensible. Their anti worker laws are a thing of the past. Ken Paxton’s defense of ERCOT is unbelievable. As progressives, we have the chance to snap the spine of the Republican party and defeat once and for all, but here we are, breathing new life into it.
The people who don’t want to get the vaccine are not “anti vax.” They are nurses, which means they know more about The Science than you do. Indeed, I suggest you look on VAERS and read some more about the side effects that have happened. When the “experts” tell you that the deaths are very rare, you should keep in mind that the stopping point of other vaccines has been maybe 50 deaths total.
I am sure that the rabid enforced vaccine people mean well, but the information is being ignored by our news sources. I am certain that Valerie Gutman Koch would not want to get into a discussion with someone about the pros and cons, and definitely would not want to debate the issue on public TV. Kind of like Joe Biden ignored Putin’s idea that they debate on a live broadcast. This allowed Joe to meet with him privately and bumble away in private before being asked if he still thinks Putin is a killer and then choke on trying to answer that, when he said, unequivocally, just a coupla months ago that Putin is a killer.
Dr. Hochman, are the side effects from the vaccine just as rare as (1) getting sick from COVID, or (2) dying from COVID ?… or rarer ?
Overall, I don’t know. Definitely I would suggest conducting a risk assessment on your personal situation. The spike protein in Covid causes the same damage whether from the illness or the vaccine. The problem is that the vaccine spreads it throughout multiple organ systems immediately.
For those who have already had Covid, there is no good reason to get the vaccination. For teens, there is no reason to get it. VAERS has some cases of 15 and 16 year olds dying. There are some cardiac events reported;
https://ottawacitizen.com/news/local-news/increased-risk-of-heart-muscle-inflammation-linked-with-mrna-vaccines-seen-in-ottawa
If these vaccine enforcers were following the science, they would be considering this stuff. And not labeling those who choose not to get the vaccination as anti vaxxers. That is disinformation. You have to do your own analysis, that’s all I’m saying. Maybe wait for the Nova vax. Definitely if Methodist cared about people, it would wait until the Nova vax comes available before trying to force vaccinations. Note that the current vaccines have emergency use authorization, not full FDA approval. Also let’s not forget that the survival rate of Covid is over 99%. I believe that people should get the facts, and make a decision based on the facts, not the screeching of “experts.” I’m sure most of those people mean well, but let’s not get carried away.
CAVEAT PLEBS
Re: “Koch said the ruling shows “employer mandates of the covid-19 vaccine, particularly in the health care arena, are absolutely legal.”
From an argument analysis perspective, this is really a problematic statement, starting with the superlative “absolute” which implies that there is no room for disagreement, and that anyone who dares to disagree is subject to being condemned. Unfortunately, this has become typical of our public discourse.
NOVEL VIRUS-FIX ENTAILS NOVEL LEGAL CHALLENGES
On a novel legal issue – also called “issue of first impression” in legal parlance, there cannot be any absolute legal certaintly because there is no prior binding precedent that is directly on point to control the outcome, i.e. the discretion of trial court judges.
Such a legal dispute has to be situated within existing law and existing judicial precedents, which is something of a creative endeavor on the part of the plaintiff’s attorney in the first instance. If you are against employer vax mandates (your client’s position), you will obviously be looking for anything that might support the proposition that the employer can’t legally do it. Some of it may be flimsy, as demonstrated here.
Second, what is legal is a function of what the relevant lawmakers (including judges) have authoritatively said on the matter, and it will vary by jurisdiction. This is a matter of legal research, not of the state of the art of bio-medical scientific inquiry. And if an issue is new, statements about legality will have to be in the nature of predictions (intelligent guesses) of how a court would rule when the novel issue is properly presented in a case.
So here, the relevant jurisdiction is Texas (the state of the United States), whose law Judge Hughes duly applied. What he cited is the public policy exception to the Texas at-will employment doctrine, which is a judge-made doctrine. The employer is not required to keep the employee on staff unless the employer has contractually agreed to a limitation of at-will employment and as long as the employer doesn’t fire in violation of a statute (such as Texas Commission of Human Rights Act and its federal counterpart).
Judge Hughes often issues rather shortish opinion orders, so there is no discussion here of employment contracts (which may or may not address the issue of vaccinations as a condition of employment), nor of employment laws that prohibit adverse personnel actions that are discriminatory based on specified criteria that currently don’t include vaccination status, though Congress could in theory pass a law to prohibit discrinination based on vaccination status.
As for construing and applying Texas at-will employment law, it’s based on prior judicial decisions by the Texas Supreme Court, and the Fifth Circuit doesn’t get to modify those rulings. They could at best send a novel question to the Texas Supreme Court using the certified question procedure, or guess how that state court of last resort would answer the legal question presented (make a so-called Erie guess).
JURISDICTION-SPECIFIC RULINGS
To the extent a federal court bases a decision on Texas law, it does not answer the question of whether employer mandates are “legal” nationally or globally. Such a ruling couldn’t form the basis for a general statement as to legality of employer vax mandates, not to mention in absolute terms.
As for Woodfill’s argument that rely on federal (as opposed to state) law, they have potentially greater nationwide relevance (because federal law is binding nationwide), but a decision of a U.S. district court does not ceate precedent in the strict sense of the term, and is subject to further review by the relevant Circuit Court of Appeals.
THE UNIVERSE OF POSSIBLE LEGAL ARGUMENTS
More fundamentally, Judge Hughes’ ruling rejected the legal arguments that were presented to him. That does not amount to a rejection of all types of challenges that *could* conceivably be made, including challenges relying in another state’s law. Or challenges that might be made by a better lawyer under existing Texas and/or federal law. And that limitation will carry forward to the appellate level.
Whether or not the Fifth Circuit affirms the dismissal, its ruling will not “absolutely” settle the matter.
The Russian bot, relabels himself a progressive, but the falsehoods continue.
Jason, provide a link from VACER that mentions Covid and the side effects.
https://vaers.hhs.gov/
As to your Canada link, this what the expert from there had to say;
“Liu said cases of myocarditis linked to vaccination were still quite rare and had mainly been mild, …
Liu’s message is that the benefits of vaccination outweigh the risks, especially with cases of COVID-19 continuing to circulate and new, more dangerous, variants on the horizon.
“While these symptoms might be concerning, the outcomes are usually very benign,” he said, “and it is still pretty rare.”
A little bit of truth to help spread the big lie that originates in Russia.
Valerie Koch is a law professor, so I would say that she has a JD. But, when you work at a university, and you are high profile, you have to keep the federal government happy, and full of tax dollars, because the universities rely on federal funding to stay afloat. (as do the hospitals, of course). You also have to consider that Moderna needed money. It never had a big blockbuster. And J&J needs money to pay off the talcum powder deaths I see on TV all the time, the ads for lawyers who will get you money if you died from the death powder from J&J.
Those of us who are progressives have kept an eye on the BIGGEST WEALTH TRANSFER IN HISTORY due to Project Fear and Operation Stay Safe. While Mark Boom is boomin’ and Jeff Bezos is flying out to space for a little bit of fun, you are hoping that you can afford a half pound of hamburger and maybe just maybe get out to Lake Livingston for an afternoon. But you are going along with it and supporting it.
I will put my Green New Credentials against any progressive. When I saw the failed Abbott regime say you should put your thermostat to 78, I was baffled. mine is at 82. I bought gasoline for the first time this year a few weeks ago, in mid May, for the first time since Christmas. I will have a Green Off with any progressive.
The Canadian article is one example. Like I said, other vaccines stop at 50 deaths…I am giving you the real information to MAKE YOUR OWN decision.
https://www.medalerts.org/vaersdb/findfield.php?IDNUMBER=1225942
CONTRA DECLAMATORY ABSOLUTISM
Re: “Valerie Koch is a law professor, so I would say that she has a JD. But, when you work at a university, and you are high profile, you have to keep the federal government happy,”
ASSESSING ARGUMENT VALIDITY
Hochman correctly deduces that being a law prof warrants the assumption that the person holds a JD, at least as a general rule. He goes on to attribute motive or a conflict of interest to the law prof’s specific statement. Even assuming arguendo that this innuendo has an arguable basis, it does not go to the merits of the specific argument itself, or the critique thereof.
Regardless of who the person is, the argument must stand up to scrutiny. The quoted purported expert locution here does NOT, even by its own terms. Here is it once more:
“Koch said [Judge Hughes’] ruling shows “employer mandates of the covid-19 vaccine, particularly in the health care arena, are absolutely legal.”
If a proposition is “absolute”, it cannot be “particulary” absolute in one instance as opposed to another, the two instances here involving the distinction between medical-sector employment and other employment.
And there would, of course, be a meaningful substantive distinction between those two sectors: Hospitals treat people who are generally in poorer health and more susceptible to infection and bad outcomes due to greater physiological vulnerability. That could be a legitimate basis for differential treatment of health-sector employees.
THE HEALING ARTS
One might additionally question the application of the term “arena” to venues of service provision where legal combat does not take place. When you think like a lawyer or a law professor, or a partisan hack, alas, those semantic choices might have become second nature.
Rhetorical ratcheting-down-training anyone?
Academic discourse de-escalation?
I do have a quibble (a very small one) with Judge Hughes ruling. There are some other anti-retaliation provisions in Texas law, most notably in the Health & Safety Code (and no, I’m not going to do Jared Woodfill’s legal research for him). To have sued under Sabine Pilots was the height of stupidity. But hey, look at the source.
Marc, not sure that the suit was based on Sabine Pilot precedent. That is being fired for refusing to commit an illegal act with potential criminal charges against the employee.
This is more a question of why can’t Methodist wait to have the requirement until the Nova Vax vaccine is available. It’s much likely going to be safer than mRNA vaccines.
PUBLIC POLICY BY JUDGE-MADE DOCTRINE
I haven’t seen Woodfill’s complaint, and I am not sure it’s worth reading it.
According to the legal trade press coverage of the case, however, he did plead a Sabine Pilot claim, among others. In any event, it would be suprising if Judge Hudges would expressly overrule an unpleaded claim. A ruling on this argument alone strongly suggests that Woodfill had invoked it.
Here is the case cite if interested to learn what a Sabine Pilot claim is all about:
Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).
It is also known as the public policy exception to the employment-at-will doctrine (which, of course, also constitutes public policy, albeit judge-made “common law” policy of long standing):
Tex. = Texas Supreme Court aka Supreme Court of Texas (SCOTX). This is the highest policymaking court in and of the State of Texas in civil matters.
EXCERPTS FROM THE OPINION, SINCE CITED HUNDREDS OF TIMES
The sole issue for our determination is whether an allegation by an employee that he was discharged for refusing to perform an illegal act states a cause of action. This court in East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888), held that employment for an indefinite term may be terminated at will and without cause.
The courts of Texas have steadfastly refused to vary from that holding. However, in the last 30 years the courts of 22 states have made exceptions to the employment-at-will doctrine and numerous commentators have advocated exceptions to the doctrine. The exceptions advocated by the commentators and adopted by various courts range from very liberal and broad exceptions to very narrow and closely defined ones. See Comment, The At-Will Doctrine: A Proposal to Modify the Texas Employment Relationship, 36 Baylor L.Rev. 667 (1984) for a thorough discussion of the reasoning and decisions of other states concerning this issue.
https://scholar.google.com/scholar_case?case=4915292897050034013&q=sabine+pilot&hl=en&as_sdt=4,44
Thanks for the interesting comment. I would say that Woodfill should know better–getting vaccinated is not an “illegal act.” He needs to look at the safety of the vaccines, and have experts who can speak to the risks. It may be against the Belmont Report, but the Report distinguishes between “research” and “Practice.” Not sure that this would be research.
Another angle would be that Methodist should delay any requirement until the likely much safer non mRNA vaccine from Nova Vax is available.