By Traci R. Gentilozzi
The Daily Record Newswire
The children of a divorced couple must be kept up-to-date on their vaccinations because it is in their best interests to be immunized, the Michigan Court of Appeals has ruled.
After the plaintiff mother and the defendant father divorced, the defendant discovered the plaintiff had discontinued their children’s vaccinations. The plaintiff and the defendant disagreed whether the vaccinations should be updated and so they took their dispute to the Oakland Circuit Court.
When Oakland Circuit Judge Mary Ellen Brennan denied the defendant’s motion to vaccinate the children, he appealed. In December 2014, the Court of Appeals vacated the trial court’s ruling and remanded the case. On remand, the trial court held the defendant did not show the vaccinations were in the children’s best interests.
On appeal for the second time, the Court of Appeals reversed, finding the trial court based its decision on inadmissible evidence.
“We need not remand to give the circuit court a third chance, however, as the record permits only one resolution of the issue presented,” the appeals court said.
Along with its ruling that the children must be vaccinated, the Court of Appeals gave a specific timeline for the trial court to follow and stringent orders for the trial court to:
• direct the children’s pediatrician to produce letters stating whether the administration of any vaccinations is “medically contraindicated,” and
• order that the children are subject to vaccinations in “strict compliance” with the letters.
“The course of vaccination must begin within 21 days of the entry of the circuit court’s order on remand,” the Court of Appeals said.
The decision is Kagen v. Kagen. Judges Peter D. O’Connell, Stephen L. Borrello and Elizabeth L. Gleicher were on the panel.
‘Forceful’ decision
Birmingham private practitioner Ronald J. Bajorek, who represents the defendant, said he was surprised by the tone of the decision.
“I have never read a more forceful opinion,” he noted. “The court said, ‘Enough is enough and these kids are getting vaccinated, now let’s get this show on the road.’”
After the first remand from the Court of Appeals last December, the trial court let the plaintiff bring in her evidence, which Bajorek said he “vehemently” opposed. “But the Court of Appeals has now said a lot of that evidence had the attributes of supermarket checkout tabloids.”
Bajorek said he believes this is the first appellate decision that “puts vaccines on trial.” And although it’s an unpublished decision, he said it is still helpful to attorneys.
“It can be used to show that a panel of the Court of Appeals has a very strong tendency to go in favor of vaccinating children,” Bajorek said. “It can also be used to show a trial judge that, unless you have serious sources that say vaccines can have a detrimental effect on children or you bring in a medical expert to show that vaccines are contraindicated, unless you have that proof, you don’t have a claim.”
Bajorek said he does not anticipate an appeal, particularly since the Court of Appeals has given a stringent timeline for the vaccinations to occur and the mother was not represented by counsel.
Inadmissible evidence
According to the Court of Appeals, the trial court wrongly admitted hearsay and unreliable evidence.
First, the trial judge improperly permitted a list of vaccination ingredients from Wikipedia.com. “We cannot fathom that a document containing content that can be altered by anyone at any time could possibly ‘demonstrate circumstantial guarantees of trustworthiness,’” the appeals court said.
The trial court also erroneously allowed an article from a holistic medicine blog. “[A]n article from a doctor unconnected to any scientific study does not share the characteristics of trustworthiness necessary to be admitted under MRE 803(24),” the panel wrote.
Further, the trial judge erroneously let in an article from Snopes.com. “Snopes.com is a website that ‘has come to be regarded as an online touchstone of rumor research,’” the Court of Appeals said.
In addition, the trial court should not have let the plaintiff offer an article from Health Impact News, purportedly presenting the dangers of vaccinations. The article “reads like a tabloid story of the late doctor’s persecution at the hands of vaccine advocates,” the appeals court noted.
The plaintiff was also improperly allowed to introduce an article from Dr. Russell L. Blaylock. “Dr. Blaylock’s website references neither scientific research nor peer-reviewed medical literature,” the panel observed.
The last document erroneously admitted was posted on the World Association for Vaccine Education website.
“The circuit court completely failed to address this document at the hearing and made no record consideration of the document’s admissibility in its written opinion and order,” the appeals court said. “We have no ground to deem the document trustworthy and cannot affirm the circuit court’s admission of it.”
The Court of Appeals then turned to the best interest factors in MCL 722.23.
“A review of the parties’ evidence clearly supports that vaccination of children is in their best interests, unless the child’s medical condition contraindicates vaccination,” the appeals court wrote.
“The reports generated after public-agency research and investigation, including those presented by [the plaintiff], establish that the benefits associated with vaccination far outweigh any dangers.”
Moreover, no evidence supported that the children have a compromised immune system or a history of seizures, the Court of Appeals said.
The record “contains no support whatsoever for the circuit court’s factual finding that there exists in the medical community a ‘legitimate debate … as to the safety and necessity’ of the vaccines recommended for the Kagen children,” the appeals court concluded. “Indeed, the evidence overwhelmingly preponderates in the opposite direction.”
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