[00:00:02] Speaker 03:
Good morning, Your Honors.

[00:00:03] Speaker 03:
I'd like to reserve five minutes of my time.

[00:00:07] Speaker 03:
My name is Stephen Jonkis, and I represent Dr. Paul Thomas, who is here in the courtroom.

[00:00:13] Speaker 03:
This case is the subject of a book, The War on Informed Consent, The Persecution of Dr. Paul Thomas by the Oregon Medical Board, written three years ago.

[00:00:26] Speaker 03:
The foreword was written by Robert F. Kennedy Jr., current presidential candidate.

[00:00:33] Speaker 03:
Mr. Kennedy wrote, we simply do informed consent, said Dr. Thomas, in summarizing his alternative ethical approach.

[00:00:43] Speaker 03:
And for doing what should be done for every child, he has been pilloried in the mainstream press and attacked by the medical establishment.

[00:00:57] Speaker 03:
And he lost his career.

[00:01:02] Speaker 03:
Dr. Thomas was extraordinarily successful.

[00:01:07] Speaker 03:
Dr. Thomas's patients do not get autism.

[00:01:11] Speaker 02:
I'm assuming everything you're saying is true.

[00:01:15] Speaker 02:
Does it make a bit of difference with respect to the issue in front of us?

[00:01:19] Speaker 03:
Yes.

[00:01:20] Speaker 02:
Why?

[00:01:20] Speaker 02:
Tell me why.

[00:01:22] Speaker 03:
because the Oregon Medical Board made up a rule.

[00:01:26] Speaker 02:
Well, let me start with the first issue.

[00:01:29] Speaker 02:
As I read the board's argument, it says it is entitled to absolute immunity, the board, not the staff members, under our case law.

[00:01:41] Speaker 02:
And if it is, then the merits or demerits of its decision make no difference.

[00:01:48] Speaker 02:
So what would be helpful to me is if you would speak to the immunity issues in this case, not whether or not you think Dr. Thomas's practices were correct or incorrect.

[00:02:01] Speaker 03:
Well, yes, Your Honor.

[00:02:03] Speaker 03:
The Supreme Court said in Buckley v. Fitzsimmons that we apply quite sparingly

[00:02:10] Speaker 03:
recognizing absolute immunity quite sparingly.

[00:02:14] Speaker 02:
But isn't this an agency of the state of Oregon and therefore entitled to the same?

[00:02:20] Speaker 02:
If you were suing for anything but damages, we would have a separate issue.

[00:02:24] Speaker 02:
But isn't this board entitled to the same sovereign immunity that the state would be when exercising the functions it exercises in this case?

[00:02:34] Speaker 03:
We didn't sue the board.

[00:02:35] Speaker 03:
We sued the individuals, the board members and the employees.

[00:02:39] Speaker 02:
As I read this, OMB was named as a defendant, and the trial judge found that OMB had absolute immunity.

[00:02:53] Speaker 02:
Am I wrong?

[00:02:53] Speaker 03:
They're talking about the employees and the board members.

[00:02:56] Speaker 02:
So you have no claim against the board itself?

[00:02:58] Speaker 03:
No.

[00:02:59] Speaker 02:
OK, I had misread your complaint to think that you did.

[00:03:02] Speaker 02:
OK, with respect to the now, help me with respect to the board staff.

[00:03:07] Speaker 02:
Tell me why they're not entitled to at least qualified immunity.

[00:03:10] Speaker 03:
Because they have to operate within their statutory authority to have absolute immunity attached.

[00:03:19] Speaker 02:
Even qualified immunity.

[00:03:21] Speaker 02:
I'm sorry?

[00:03:22] Speaker 02:
Whether it's absolute or qualified immunity, tell me how they operated outside their authority in, as I understand it, instituting proceedings that resulted in your client's suspension.

[00:03:35] Speaker 02:
Isn't that what they do as a matter of authority?

[00:03:37] Speaker 03:
They created a rule that violates Oregon law.

[00:03:41] Speaker 03:
They said, Dr. Thomas, you have the responsibility to vaccinate.

[00:03:47] Speaker 03:
That's the rule that they created, and then they prosecuted him under.

[00:03:51] Speaker 03:
That violates patient rights.

[00:03:54] Speaker 03:
The person who gets to make a choice of where their child gets vaccinated is the parent, not the doctor.

[00:04:00] Speaker 03:
The doctor's only role is to provide informed consent.

[00:04:05] Speaker 02:
You're arguing now I take it a matter of Oregon law, not constitutional law.

[00:04:12] Speaker 02:
Well, yes.

[00:04:14] Speaker 05:
I think that's right.

[00:04:15] Speaker 05:
And the difficulty I have is with the emergency suspension order is that, again, I'm trying to parse this carefully, but it seems to me that your premise is challenging for me because the board started or the suspension order started with the premise that there had been reports where patients hadn't been given informed consent, where they felt strong-armed and so forth and so on.

[00:04:40] Speaker 05:
I'm out here to talk to you about the

[00:04:42] Speaker 05:
you know, whether those allegations are well founded.

[00:04:46] Speaker 05:
But those were the allegations, right, to support the emergency suspension order, that people were not being given the opportunity to make their own decisions with the information.

[00:04:56] Speaker 05:
That was the public health concern, I think, sir.

[00:04:59] Speaker 03:
Not really, Your Honor.

[00:05:00] Speaker 05:
Well, that's how I read it.

[00:05:02] Speaker 05:
If you could circle back, if you can take that as the premise of the question, I struggle with why absolute immunity wouldn't attach to the board members.

[00:05:10] Speaker 05:
What's your best shot at convincing me that the board members are not entitled to absolute immunity?

[00:05:14] Speaker 03:
Chalkboard versus Brandt.

[00:05:16] Speaker 03:
Quote, state law must authorize the prosecutorial or judicial function to which absolute immunity attaches.

[00:05:26] Speaker 03:
So they are outside their scope when they make up a legislative rule, a rule as a legislature would, and says, you violated that rule, and therefore, you lose your license.

[00:05:39] Speaker 05:
But that's an Oregon.

[00:05:41] Speaker 02:
I'm sorry.

[00:05:41] Speaker 05:
No, no, no.

[00:05:42] Speaker 05:
I interrupted you, I think, Judge Horwitz.

[00:05:43] Speaker 05:
Go right ahead.

[00:05:44] Speaker 02:
No, but see, my difficulty is that's an Oregon law argument.

[00:05:48] Speaker 02:
I mean, if Oregon law said all doctors must prescribe vaccines to children,

[00:05:54] Speaker 02:
You might be able to attack that law, but that's essentially what these guys thought it meant, at least in your broadest reading of the case.

[00:06:04] Speaker 02:
And then there was an emergency suspension, and you never pursued the hearing at which you could have raised all these issues in front of the board.

[00:06:13] Speaker 02:
including the Oregon law issues, taking them up to the Oregon courts if you thought they were wrong, and instead filed a 1983 action.

[00:06:21] Speaker 02:
So I'm having some difficulty figuring out how the board, even if mistaken about its authority, acted outside the scope of its privilege.

[00:06:34] Speaker 03:
It's not an Oregon law issue.

[00:06:35] Speaker 03:
The Chalkboard case is a Ninth Circuit opinion, 1989.

[00:06:39] Speaker 03:
So it measures.

[00:06:40] Speaker 03:
Well, I don't care whether you have a Ninth Circuit case.

[00:06:43] Speaker 02:
Tell me in this case why, if Oregon law said, clearly in writing, not prescribing vaccines to children, put aside the informed consent issue, violates Oregon law, then you wouldn't have this argument, would you?

[00:07:02] Speaker 02:
So what you're arguing to us is that they made up Oregon law, that it wasn't what Oregon law said.

[00:07:07] Speaker 02:
And I'm not sure why in a 1983 action we're supposed to figure out what Oregon law is.

[00:07:15] Speaker 03:
It's not what Oregon law is.

[00:07:17] Speaker 03:
It's the right to inform consent.

[00:07:20] Speaker 03:
And the board, I mean the emergency order itself said his failure to adequately vaccinate children is grossly negligent.

[00:07:28] Speaker 03:
Okay?

[00:07:29] Speaker 05:
His failure.

[00:07:30] Speaker 05:
They said several things in that order.

[00:07:32] Speaker 05:
My understanding is that your argument about why they're not entitled to qualified immunity is that they exceeded the scope of their statutory charge.

[00:07:40] Speaker 05:
Yes.

[00:07:41] Speaker 05:
All right.

[00:07:41] Speaker 05:
And what's your best shot, if you would please, at convincing us that the board acted, and we'll talk about the staff members in a minute, how they exceeded the scope of their statutory authority?

[00:07:52] Speaker 03:
Because it made up a duty.

[00:07:55] Speaker 03:
they've made up a duty that he had a requirement to vaccinate.

[00:07:59] Speaker 03:
He has no such duty.

[00:08:00] Speaker 05:
Is it your same, I appreciate you've articulated that, that's helpful to me, and that is your argument for the board members as well as the staff members?

[00:08:09] Speaker 05:
I understood your argument as the staff members is that they fabricated evidence.

[00:08:13] Speaker 03:
Yes.

[00:08:13] Speaker 05:
I understood that that was a different argument, but I also don't know how they did that, so I'm going to ask you to

[00:08:18] Speaker 03:
Well, the staff members, even under the court's precedent, judges, people sitting on the board for their judicial functions, have immunity.

[00:08:28] Speaker 03:
But they don't have immunity for investigation, for writing laws.

[00:08:33] Speaker 03:
And the staff doesn't have immunity for anything but prosecutorial.

[00:08:37] Speaker 03:
What's prosecutorial?

[00:08:39] Speaker 05:
We look to the function they're performing, absolutely.

[00:08:41] Speaker 05:
It's adjudicated body, which is what Judge Herbert was just walking you through.

[00:08:45] Speaker 05:
And then to the extent the staff members are investigators, that's their title, but we don't go by title.

[00:08:50] Speaker 05:
We go by function.

[00:08:51] Speaker 05:
I'm with you all the way down to there.

[00:08:52] Speaker 05:
And one of their functions is to investigate.

[00:08:56] Speaker 05:
And I take your complaint to argue that in the course of doing that, these folks fabricated evidence.

[00:09:01] Speaker 05:
But it seemed to me just the one conclusory allegation in the complaint.

[00:09:04] Speaker 05:
I couldn't figure out what it is they did other than report forward complaints they had received from members of the public.

[00:09:13] Speaker 03:
They said a reason why Dr. Thomas should lose his license is because of patient D. Patient D is a young nine-year-old boy who had a scalp injury.

[00:09:23] Speaker 03:
He got tetanus.

[00:09:25] Speaker 03:
And they put it in this report as though Dr. Thomas was his doctor.

[00:09:30] Speaker 03:
And that is false.

[00:09:32] Speaker 03:
Dr. Thomas was never his doctor before he got injured.

[00:09:36] Speaker 02:
So this takes me back to my question about not pursuing your remedies in front of the board.

[00:09:42] Speaker 02:
You're asking a federal court to make a factual finding about whether or not Dr. Thomas was this patient's doctor.

[00:09:52] Speaker 02:
That's precisely what the healing in front of the board should have been about.

[00:09:57] Speaker 02:
They said, here's an emergency suspension, but you have a right to a prompt hearing.

[00:10:02] Speaker 02:
You could have gone to that hearing and said, look, this is all a mistake.

[00:10:05] Speaker 02:
Dr. Thomas didn't do this.

[00:10:07] Speaker 02:
He didn't do that.

[00:10:09] Speaker 02:
But instead, you file a 1983 action that says they fabricated evidence.

[00:10:14] Speaker 02:
So you're not putting a federal court in the first instance of making the kind of findings that should have been made in the administrative proceedings.

[00:10:22] Speaker 03:
His federal claims were violated.

[00:10:24] Speaker 03:
His federal claims were violated.

[00:10:25] Speaker 03:
He did go to administrative proceedings.

[00:10:27] Speaker 05:
You mean federal rights were violated?

[00:10:29] Speaker 03:
His federal rights, his constitutional rights.

[00:10:31] Speaker 02:
He didn't go through the administrative proceeding.

[00:10:32] Speaker 02:
He only went up to the point of the emergency suspension.

[00:10:36] Speaker 02:
He never invoked and the order for the emergency suspension says, you know, we'll have a hearing.

[00:10:42] Speaker 02:
You can challenge this.

[00:10:44] Speaker 02:
You can bring in evidence to show that we're wrong.

[00:10:46] Speaker 03:
Well.

[00:10:46] Speaker 02:
And you never did.

[00:10:47] Speaker 02:
And I don't know whether you have to, but I must say that troubles me in this case.

[00:10:51] Speaker 03:
Well, he did.

[00:10:52] Speaker 05:
And the problem with administrative- When you say he did, this is an important point.

[00:11:00] Speaker 05:
Judge Hurwitz is pausing.

[00:11:01] Speaker 05:
This is an important point.

[00:11:02] Speaker 05:
We have this emergency suspension order.

[00:11:05] Speaker 05:
Was there any further action at the administrative level to exhaust any of the other avenues?

[00:11:09] Speaker 03:
There was a complaint filed in April of 21.

[00:11:11] Speaker 05:
OK.

[00:11:11] Speaker 05:
So when you say he did, did you mean your client did exhaust other administrative avenues?

[00:11:16] Speaker 03:
He settled.

[00:11:17] Speaker 03:
Because that administrative, for all due respect, that administrative process is a kangaroo court.

[00:11:24] Speaker 05:
Well, wait a minute.

[00:11:24] Speaker 05:
So this is an important point, and I think Judge Hurwitz and I are both struggling with it.

[00:11:28] Speaker 05:
So if you could back up, we have the emergency suspension order in front of us, sir.

[00:11:32] Speaker 05:
Right.

[00:11:32] Speaker 05:
Now you're talking about something else that seems to be beyond the scope of our record.

[00:11:36] Speaker 05:
I don't mean to hijack your question.

[00:11:37] Speaker 03:
No, no.

[00:11:38] Speaker 05:
I'm very interested in this.

[00:11:39] Speaker 05:
But we're trying to figure out what else happened here that we don't know about.

[00:11:42] Speaker 03:
Well, the complaint is about the emergency suspension.

[00:11:45] Speaker 03:
Right.

[00:11:46] Speaker 03:
But he did.

[00:11:46] Speaker 03:
There was a complaint filed by the board in April.

[00:11:51] Speaker 03:
Five months late, it had to be filed at the same time for them to actually file the emergency complaint.

[00:11:56] Speaker 02:
On which you would have been entitled to have a hearing, correct?

[00:11:59] Speaker 03:
And he went through that process.

[00:12:00] Speaker 02:
When you say he went through the process, was there ever a hearing in front of the board?

[00:12:05] Speaker 03:
I didn't represent him, so I don't know the intimate details of that.

[00:12:08] Speaker 03:
But yes, he went for a year or so.

[00:12:11] Speaker 03:
He ended up settling.

[00:12:12] Speaker 02:
Well, but how it ended up is a separate issue for me.

[00:12:16] Speaker 02:
And whether or not that settlement bars some of these claims would be interesting, too, if we'd been provided with it.

[00:12:22] Speaker 02:
But I have a very narrow question.

[00:12:25] Speaker 02:
The emergency suspension order says you're entitled to a hearing.

[00:12:28] Speaker 02:
And it has to, because we've done something that is an emergency without a hearing.

[00:12:33] Speaker 02:
We'll give you a prompt hearing thereafter if you want one.

[00:12:36] Speaker 02:
I can't find any evidence in this record that such a hearing was ever requested.

[00:12:42] Speaker 03:
And so tell me, am I missing something?

[00:12:46] Speaker 03:
I don't know that it's in the record, but it was requested.

[00:12:49] Speaker 05:
OK, so this is important, because you started by saying he lost his career.

[00:12:54] Speaker 05:
Of course, we take that very seriously.

[00:12:56] Speaker 05:
You appreciate all we have is the emergency suspension order.

[00:12:59] Speaker 03:
Right.

[00:13:00] Speaker 03:
And he was terminated at a doctorate and never practiced again.

[00:13:07] Speaker 02:
As an emergency matter with the ability to seek a hearing to contest that.

[00:13:12] Speaker 02:
The state says never sought a hearing.

[00:13:15] Speaker 03:
There was a hearing, and Your Honor, the... Well, but help me.

[00:13:18] Speaker 02:
Where in this record can I find evidence that he sought a hearing?

[00:13:23] Speaker 03:
It's not about that part of the process.

[00:13:26] Speaker 03:
It's about their emergency suspension, unauthorized emergency suspension of him.

[00:13:33] Speaker 03:
And the medical board is not accountable.

[00:13:36] Speaker 02:
Let me ask the question differently, because I want to make sure we're not missing each other.

[00:13:40] Speaker 02:
Let's assume, for purposes of your question, this question that you're right.

[00:13:44] Speaker 02:
The emergency suspension was improper.

[00:13:47] Speaker 02:
but that the order that it came down with said, this is an emergency, and we're doing this without a hearing.

[00:13:52] Speaker 02:
But you have a right to hearing, and let us know, and we'll have a hearing about the suspension order.

[00:13:59] Speaker 02:
And so I'm trying to figure out whether or not he actually sought a hearing about the suspension order, as opposed to later responding to a complaint or did anything else.

[00:14:09] Speaker 02:
And I think the answer is no, is it not?

[00:14:12] Speaker 03:
No, because it was superseded by the complaint filed five months later.

[00:14:16] Speaker 02:
Five months later.

[00:14:16] Speaker 02:
But in the intervening five months, he never saw the hearing.

[00:14:21] Speaker 02:
Or at least we agree on that.

[00:14:23] Speaker 03:
I think that's correct, Your Honor.

[00:14:24] Speaker 02:
OK.

[00:14:24] Speaker 02:
That's helpful.

[00:14:25] Speaker 02:
I'm just trying to get the records.

[00:14:28] Speaker 03:
I'm way over my time for reserving.

[00:14:29] Speaker 03:
You're fine.

[00:14:30] Speaker 05:
We've taken it.

[00:14:31] Speaker 05:
You're not yet.

[00:14:32] Speaker 05:
But we have helped you with that.

[00:14:33] Speaker 05:
So we'll give you some more time.

[00:14:34] Speaker 05:
Let me make sure Judge Winn hasn't had an opportunity to get an award edgewise.

[00:14:38] Speaker 05:
I'm fine.

[00:14:38] Speaker 05:
OK.

[00:14:38] Speaker 05:
All right.

[00:14:39] Speaker 05:
Do you want to maybe reserve the rest of your time?

[00:14:41] Speaker 05:
When you come back, we'll put two minutes on the clock for you.

[00:14:44] Speaker 03:
You bet.

[00:14:44] Speaker 05:
OK.

[00:14:45] Speaker 05:
Thank you very much for your patience with our questions.

[00:14:47] Speaker 05:
We'll hear from the opposing counsel, please.

[00:15:00] Speaker 01:
Yeah, please, the court.

[00:15:01] Speaker 01:
Colin Moore on behalf of the defendants in this case.

[00:15:07] Speaker 01:
So there's nothing on the record about kind of the post-emergency suspension process.

[00:15:14] Speaker 01:
So anything that, I mean, I do have information on that if the court is interested in what happened after that, but it's all outside of the record.

[00:15:21] Speaker 02:
You know, I guess my question is not indirect.

[00:15:24] Speaker 02:
I can't find anything in the record to suggest that there was a post-suspension hearing.

[00:15:29] Speaker 02:
Is my reading of the record correct?

[00:15:31] Speaker 01:
Your reading of the record.

[00:15:32] Speaker 05:
That's correct.

[00:15:33] Speaker 05:
It's not that we're inviting you.

[00:15:34] Speaker 05:
I didn't mean to suggest we're inviting you to go outside the record.

[00:15:36] Speaker 05:
I'm just trying to remind people

[00:15:37] Speaker 05:
I thought opposing counsel and Judge Herbert were talking past each other.

[00:15:41] Speaker 05:
Maybe it was just me.

[00:15:41] Speaker 05:
But I don't have any request for a hearing.

[00:15:46] Speaker 05:
And we didn't miss it.

[00:15:48] Speaker 01:
Nothing in the record.

[00:15:50] Speaker 02:
If that's true, what's the significance of it?

[00:15:56] Speaker 01:
I mean, I think to your point, the significance is I think a lot of what plaintiffs complain in this case is the board's view of what the standard of care is in these cases.

[00:16:05] Speaker 01:
And I think, you know, to the extent

[00:16:08] Speaker 01:
This 1983 action is being used to advance that view.

[00:16:13] Speaker 01:
It's inappropriate because the proper method of challenging what a standard of care would be in these circumstances would be to go through that.

[00:16:19] Speaker 02:
Well, but there's no exhaustion requirement for 1983 actions.

[00:16:23] Speaker 02:
So I'm trying to figure out, again,

[00:16:26] Speaker 02:
Well, to the extent he was making a procedural due process argument, and maybe he is, it seems to me not going forward with an available hearing might hurt that.

[00:16:36] Speaker 02:
But his argument much more seems to be a substantive one, which is that.

[00:16:40] Speaker 01:
Correct.

[00:16:40] Speaker 02:
And I think, as a legal matter, you punished him for something you shouldn't have punished him for.

[00:16:46] Speaker 02:
And so why does the absence of a hearing affect that claim?

[00:16:52] Speaker 01:
I don't know that it does as a legal matter.

[00:16:54] Speaker 01:
I think, I mean, at the end of the day, what we're looking at is the action of the plaintiff is challenging in his complaint, and whether or not they fall within the scope of absolute immunity.

[00:17:05] Speaker 01:
And I think so, kind of, we're focused on the emergency suspension order, and what the board's function is in that.

[00:17:14] Speaker 01:
Is it quasi-judicial, quasi-prospectorial?

[00:17:15] Speaker 02:
I want to go back to Judge Kristen's question, if I can.

[00:17:19] Speaker 02:
focus on not the board members themselves, but the staff members.

[00:17:25] Speaker 02:
And one of them, as I read the complaint, is really only being sued in his supervisory authority.

[00:17:31] Speaker 02:
But the staff member that was supposed to have fabricated evidence, if there isn't absolute immunity, why isn't an allegation that somebody fabricated evidence enough to get past qualified immunity at the pleading stage?

[00:17:47] Speaker 01:
Well, I think to step back, I think our position is there is absolute immunity for the staff members in this case.

[00:17:53] Speaker 05:
Why isn't it much more like a social worker?

[00:17:56] Speaker 05:
We've said social workers who are out in the field doing investigation work would be afforded only qualified immunity, and that there is no protection if someone actually were to falsify evidence.

[00:18:08] Speaker 05:
I have another problem with a falsification allegation, which is I think it's insufficiently, I think it's very vague and conclusory.

[00:18:14] Speaker 05:
But just paper over that if you would for a minute.

[00:18:17] Speaker 05:
Why isn't this closer to a function served by a social worker and a child in need of aid cases?

[00:18:24] Speaker 05:
We have said those folks are not entitled to absolute immunity.

[00:18:26] Speaker 01:
I think the short answer is you have to look at, as you acknowledged, the functions that are being challenged.

[00:18:32] Speaker 01:
And so we're not looking at the title as an investigator.

[00:18:36] Speaker 01:
And applying that functional approach here, I think that the best reading of plaintiffs' allegations against the staff members is that he's challenging staff actions that are quasi-prosecutorial.

[00:18:48] Speaker 05:
Well, why?

[00:18:48] Speaker 05:
One of them is initiating a letter saying, hey,

[00:18:51] Speaker 05:
Doctor somebody's made a complaint against you, but that's it's it recalls for a response, but not a response to the board It's not like a notice to appear or a complaint summoning, you know an official with Response to the board.

[00:19:05] Speaker 05:
It's it's a it's a correspondence.

[00:19:06] Speaker 05:
That's my word, but you know communication between the Respondent and this the investigator once seem to be very pre litigation forgive me for interrupting it

[00:19:18] Speaker 01:
Yeah, I see your point.

[00:19:18] Speaker 01:
I think my reading of the allegations, I think the better reading of the allegations is that really when plaintiff is alleging that investigators falsified or wrote misleading allegations and fabricated evidence, that was in the context of the board's, the investigator's contribution to the emergency suspension order.

[00:19:40] Speaker 05:
It kind of wound up that way.

[00:19:42] Speaker 05:
But you don't know how that's going to turn out.

[00:19:43] Speaker 05:
That's with 2020 hindsight.

[00:19:45] Speaker 05:
And I think that's what we don't do.

[00:19:46] Speaker 05:
So the investigators are going out, presumably sending out other types of letters to other care providers that don't wind up advancing to the point of an adjudicatory hearing.

[00:19:55] Speaker 01:
Yeah.

[00:19:56] Speaker 01:
Well, and I think that's the challenge in these cases.

[00:19:58] Speaker 01:
The case laws try to draw this line between what's advocacy and what is investigative.

[00:20:03] Speaker 02:
Do any of the cases deal with staff

[00:20:07] Speaker 02:
that are part of the adjudicative agency.

[00:20:11] Speaker 02:
When we look at the social worker cases, they're a little bit different because this social services agency itself doesn't adjudicate the case.

[00:20:19] Speaker 02:
A court does.

[00:20:19] Speaker 02:
And so they're like prosecutors in the sense that they are outside parties that come to the adjudicative agency.

[00:20:27] Speaker 02:
And I'm not sure I know the answer to this question.

[00:20:29] Speaker 02:
Does it matter that they are adjuncts of the adjudicative agency themselves?

[00:20:34] Speaker 01:
Well, I think it does.

[00:20:35] Speaker 01:
Yeah, I think they are, as we know, these types of agencies are serving, wearing many hats in these cases.

[00:20:41] Speaker 01:
And so a professional staff is assisting along the line of this process.

[00:20:48] Speaker 01:
And so I think it does matter in that you want to look at,

[00:20:56] Speaker 01:
kind of where along the continuum of the process it falls.

[00:20:59] Speaker 00:
I mean, I struggle with the same thing because the briefing sort of lumps defendants together as one group, but there's got to be an analytical difference between the board members and the staffers.

[00:21:09] Speaker 00:
But do we know from the allegations

[00:21:13] Speaker 00:
as it stands, what their role is, right?

[00:21:17] Speaker 00:
Do we have to import some outside knowledge about how these boards really work and the functions that the staffers play in that process?

[00:21:26] Speaker 00:
Should we do that in this case?

[00:21:27] Speaker 00:
Are we permitted to do that or are we stuck with the allegations as they stand right now?

[00:21:32] Speaker 01:
Well, I think that goes to the problem that we're papering over for the minute, which is that the allegations themselves are very conclusory, and we don't have information as far as what the role is and what the role that is being alleged was problematic.

[00:21:48] Speaker 02:
Couldn't that be fixed with an amendment?

[00:21:50] Speaker 02:
I mean, for the first time today, because it's not in the record,

[00:21:54] Speaker 02:
we hear what the precise allegation of making up things is.

[00:22:02] Speaker 02:
Had that been alleged in the complaint, would that be sufficient to, and assuming that we're only now dealing with qualified immunity and not absolute immunity.

[00:22:11] Speaker 01:
Right.

[00:22:12] Speaker 01:
I mean, I think if there had been perhaps a

[00:22:15] Speaker 01:
Yeah, I mean, I think, yeah, we have to have more than we have, which as far as what is just identifying what the fabrication of evidence is, or the, sorry, I lost my train of thought there.

[00:22:30] Speaker 02:
So let me rephrase the question for you.

[00:22:32] Speaker 02:
Let's assume for a moment we're only dealing with qualified immunity, that we don't think the staff members are entitled to absolute immunity.

[00:22:41] Speaker 02:
And a better complaint had been filed that said what I accused the staff members of is making up a relationship with a patient that didn't exist.

[00:22:51] Speaker 02:
Yeah.

[00:22:51] Speaker 02:
Would that be enough to get past qualified immunity?

[00:22:56] Speaker 01:
I mean, I think the district court got into this a little bit.

[00:23:00] Speaker 01:
A fabrication of evidence claim requires- As opposed to a mistake.

[00:23:05] Speaker 02:
In other words, I don't think anybody thinks that a mistaken accusation or negligent one would give rise to liability.

[00:23:12] Speaker 01:
Yeah, and there are certain elements to that kind of claim that need to be alleged and need to be facts supporting that.

[00:23:18] Speaker 01:
And so I think the answer to your question is not necessarily.

[00:23:22] Speaker 01:
I mean, it depends on whether those things, and there's a causation element to the fabrication of evidence claim.

[00:23:26] Speaker 01:
And there's, I think, got to be some factual allegations that would support an inference of deliberateness or willfulness.

[00:23:36] Speaker 01:
And so not necessarily.

[00:23:39] Speaker 01:
I mean, it would really depend.

[00:23:39] Speaker 02:
We're at the pleading stage here, right?

[00:23:42] Speaker 05:
Yeah.

[00:23:43] Speaker 05:
But see, that's an interesting point, because at the top of the hour, we were talking about how, and I think this is right, we're very careful about absolute immunity.

[00:23:53] Speaker 05:
Imagine what it can paper over.

[00:23:56] Speaker 05:
is very concerning.

[00:23:56] Speaker 05:
And so we're pretty parsimonious about that.

[00:23:59] Speaker 05:
It sounds to me like there isn't a scenario under which we could say that somebody who's wearing this investigator hat is definitely always on one side of the line or the other, because we're, by definition, talking about the function he or she is performing in any given day.

[00:24:11] Speaker 05:
Is that a fair?

[00:24:11] Speaker 01:
I think it's a fair characterization.

[00:24:13] Speaker 01:
I mean, again, we don't have this information on the record as to what the job title and duties of the investigators are.

[00:24:22] Speaker 01:
I think there are probably functions that they perform that are police-like, which is kind of on one side of the line.

[00:24:30] Speaker 05:
So on this record, it seems to me that that would certainly mitigate against any kind of a disposition that pronounces that an investigator

[00:24:44] Speaker 05:
on these allegations would be entitled to absolute immunity.

[00:24:48] Speaker 05:
Well, my point is we don't really know.

[00:24:49] Speaker 05:
If the premise is that somebody with this job title could be in this particular scenario

[00:24:55] Speaker 05:
working as a staff member to an adjudicatory board might be performing a more investigative role on a given day, then I'm pushing back on your notion that we should be decreeing that those individuals, there's two of them, would be entitled to absolute immunity.

[00:25:15] Speaker 05:
It feels to me like we don't know enough.

[00:25:17] Speaker 01:
I mean, I think to kind of fill out that, we look at the allegations.

[00:25:20] Speaker 05:
And because at the end of the day... That problem is the allegations are vague.

[00:25:23] Speaker 05:
So now let's forget the papering over part.

[00:25:24] Speaker 05:
These allegations are quite vague.

[00:25:26] Speaker 01:
But if we take the allegations at face value that the investigators wrote misleading allegations, let's take that one first.

[00:25:34] Speaker 05:
Forgive me for interrupting.

[00:25:35] Speaker 05:
Is that the one that comes closest to being sustainable?

[00:25:41] Speaker 01:
I wouldn't say either of them are closer.

[00:25:43] Speaker 05:
I think they're both... Well, what other allegations are there?

[00:25:47] Speaker 01:
the fabrication of evidence.

[00:25:48] Speaker 01:
I think those are the two.

[00:25:50] Speaker 05:
Are you distinguishing between?

[00:25:51] Speaker 05:
I thought those were the same thing.

[00:25:52] Speaker 05:
When I asked how did they fabricate evidence, I thought you said, well, by misleadingly presenting that patient D was his patient from the inception.

[00:26:00] Speaker 01:
Well, from the complaint, the allegation is that investigators wrote misleading allegations and essentially fabricated evidence, but based on the reliance on secondhand information.

[00:26:14] Speaker 01:
And so I think

[00:26:16] Speaker 05:
OK, I took the fabrication of evidence to be the title attributed to the first scenario, but I think I'm just splitting hairs.

[00:26:23] Speaker 01:
Go ahead.

[00:26:25] Speaker 01:
OK, so I think in looking at the complaint as a whole and in context, and I think the proffered amended complaint actually spells this out even in more detail.

[00:26:35] Speaker 01:
But I think what plaintiff is really getting at and challenging the actions of these investigators is their role in drafting this emergency suspension order.

[00:26:43] Speaker 01:
And I think that action clearly falls in the line of being closely associated.

[00:26:48] Speaker 02:
I didn't understand that that was the allegation.

[00:26:50] Speaker 02:
But if it was, if I'm drafting an order for the adjudicative person to sign.

[00:26:56] Speaker 05:
That's different.

[00:26:56] Speaker 02:
That's different than the accusation that I made was false.

[00:27:01] Speaker 05:
But it's certainly not limited to that.

[00:27:02] Speaker 05:
That's the problem we've got.

[00:27:03] Speaker 05:
It seems to me that there's one foot at best.

[00:27:05] Speaker 05:
There's one foot in each camp and on a ramp, right?

[00:27:09] Speaker 05:
And there was an attempt to amend.

[00:27:11] Speaker 05:
We can see what the amendment would be.

[00:27:13] Speaker 01:
Right.

[00:27:13] Speaker 01:
And I think the amendment actually makes it clear that the allegations are aimed at the investigator's role in drafting the emergency suspension order.

[00:27:22] Speaker 01:
Those are.

[00:27:23] Speaker 05:
OK.

[00:27:24] Speaker 05:
I'm not sure I read it that same way.

[00:27:25] Speaker 05:
But at this point, I'd just be laboring.

[00:27:27] Speaker 05:
Did you have a question?

[00:27:28] Speaker 02:
Yeah, I did have a question.

[00:27:29] Speaker 02:
And if it's not in the record, tell me.

[00:27:32] Speaker 02:
But I think I learned for the first time today that a complaint was settled.

[00:27:37] Speaker 02:
Is there anything in the record about that?

[00:27:40] Speaker 02:
that, a complaint being settled.

[00:27:44] Speaker 02:
And you're not asserting settlement as a part of this suit, and you're not asserting claim preclusion or anything else.

[00:27:52] Speaker 02:
So is there a settlement in this record somewhere?

[00:27:55] Speaker 01:
There's nothing in the record.

[00:28:00] Speaker 05:
Anything further?

[00:28:01] Speaker 01:
Thank you.

[00:28:01] Speaker 01:
Thank you.

[00:28:09] Speaker 03:
Steve Jankis again for Dr. Thomas.

[00:28:12] Speaker 03:
I'd like to point out that ER65 through 66 is an example of the allegations with respect to patient D, which were so misleading that the press said, Dr. Thomas is guilty because he didn't give this kid a tetanus shot.

[00:28:36] Speaker 03:
Patient E

[00:28:38] Speaker 03:
So we have a number of pages here of allegations regarding each of the patients.

[00:28:46] Speaker 03:
So I would also point out that we sought to amend our complaint, and the court disallowed it.

[00:28:54] Speaker 02:
Well, we do have your proposed second amended complaint.

[00:28:57] Speaker 03:
Yes.

[00:28:57] Speaker 02:
Your proposed amended complaint.

[00:28:59] Speaker 02:
And if that were the complaint and I were reading it, would I conclude that you're complaining about the staff members drafting the emergency suspension order or that you're complaining about the allegations made?

[00:29:19] Speaker 03:
I'm sorry, the second one?

[00:29:20] Speaker 02:
Yeah.

[00:29:22] Speaker 02:
A fair reading of your proposed amended complaint with respect to the staff members, what are you complaining that they did?

[00:29:30] Speaker 02:
Are you complaining that they fabricated evidence or that they did something wrong in drafting the order?

[00:29:36] Speaker 02:
Because if it wasn't drafting the order, then it seems to me, as Judge Christin may have suggested, we're getting closer to being adjudicated.

[00:29:46] Speaker 05:
So what is the allegation?

[00:29:48] Speaker 05:
What did the staff members do?

[00:29:49] Speaker 03:
What did they do, according to the complaint?

[00:29:50] Speaker 03:
They created these allegations that were misleading, and then they drafted them up.

[00:29:55] Speaker 02:
But the only thing that's... They drafted the allegations up, not the order?

[00:29:59] Speaker 02:
I'm trying to read your... I've got your second amendment, your amendment.

[00:30:02] Speaker 02:
No, we don't know.

[00:30:03] Speaker 02:
I'm trying to read it and say, what do you think you allege?

[00:30:05] Speaker 05:
What's your allegation?

[00:30:06] Speaker 05:
I just need... What's your allegation of the staff member's day long?

[00:30:08] Speaker 03:
drafted it up and they wrote the draft order.

[00:30:12] Speaker 03:
They investigated, they concluded misleading allegations, which I characterize as falsifying allegations, and they wrote the draft order.

[00:30:25] Speaker 03:
And none of that is prosecutorial work.

[00:30:29] Speaker 03:
entitled to.

[00:30:30] Speaker 02:
Why isn't writing the draft order, which is the question I think Judge Kristen posed before, something like what my law clerks may do for me when they draft an opinion?

[00:30:41] Speaker 02:
They may be dead wrong.

[00:30:45] Speaker 02:
The buck stops with me.

[00:30:47] Speaker 02:
The buck stops with the board.

[00:30:50] Speaker 02:
Drafting an order strikes me as different than making false allegations, which is why I'm trying to parse the two.

[00:30:57] Speaker 03:
The Supreme Court cases on this that talk about prosecutorial immunity

[00:31:02] Speaker 03:
Only talk about getting ready for trial and conducting trial.

[00:31:06] Speaker 02:
I'm not worried about prosecutorial immunity here.

[00:31:09] Speaker 02:
I'm starting from the premise that you disagree with, that the board members have absolute immunity because they're in a quasi adjudicative role.

[00:31:17] Speaker 02:
And if they are, I'm trying to figure out why somebody who drafts an order for them, putting aside making false allegations, I understand that, why somebody who drafts an order for them doesn't have the same immunity they do.

[00:31:30] Speaker 03:
Because they're not the judge, only the judging function.

[00:31:34] Speaker 05:
Sir, I just have one more question, if I could.

[00:31:36] Speaker 05:
I'm trying to figure out, now that we understand that there was a request for a hearing and then a settlement, and we're only looking at the emergency suspension order, what relief are you looking, hoping to secure today?

[00:31:50] Speaker 03:
that the defendants are entitled to immunity and remand to continue with the case.

[00:32:01] Speaker 02:
You're only making damages claims, correct?

[00:32:03] Speaker 03:
We have damages claims.

[00:32:04] Speaker 02:
You don't have any other claims in your complaint.

[00:32:07] Speaker 03:
I'm sorry.

[00:32:07] Speaker 03:
I didn't hear you.

[00:32:08] Speaker 05:
Do you have any claims other than damages?

[00:32:09] Speaker 05:
That's what I'm trying to get at.

[00:32:10] Speaker 03:
Oh, no.

[00:32:11] Speaker 03:
Damages claims.

[00:32:12] Speaker 05:
That answers my question.

[00:32:14] Speaker 05:
We took a lot of your time, again, and you are well over it.

[00:32:17] Speaker 05:
But are there concluding remarks you'd like to make?

[00:32:20] Speaker 03:
Well, I'd like to say that I believe the judges are not, the board members are not entitled to qualified immunity because they went beyond the scope of merely judging.

[00:32:32] Speaker 03:
They went beyond the scope of merely judging.

[00:32:35] Speaker 03:
They invented a rule and said, you didn't follow our rule that you have to vaccinate kids and therefore you're guilty.

[00:32:42] Speaker 03:
They can't do that.

[00:32:44] Speaker 03:
They created a rule, and they can't do that.

[00:32:47] Speaker 03:
The doctor has to give informed consent.

[00:32:51] Speaker 03:
That's his duty.

[00:32:52] Speaker 03:
It's his obligation.

[00:32:53] Speaker 03:
He cannot lie to his patient and say, take vaccine A, because the CDC recommends it, when he knows that vaccine A is dangerous and hurts kids.

[00:33:05] Speaker 03:
So the board is saying, you have to tell the parents to take vaccine A. As a matter of fact, you've got to ensure that they take vaccine A.

[00:33:14] Speaker 03:
That's not the board's role.

[00:33:15] Speaker 03:
They're outside their scope of what they're supposed to do.

[00:33:19] Speaker 03:
They are untouchable because you cannot, because of this absolute immunity idea.

[00:33:24] Speaker 03:
They have no accountability.

[00:33:27] Speaker 03:
Going to the administrative process, there's no damages in the administrative process.

[00:33:30] Speaker 03:
There's no judge.

[00:33:31] Speaker 03:
There's no jury.

[00:33:33] Speaker 03:
There's no discovery.

[00:33:35] Speaker 03:
There's no depositions.

[00:33:37] Speaker 03:
It's a kangaroo court, the administrative process.

[00:33:41] Speaker 03:
So the only way that people like Dr. Thomas can get their rights vindicated is through the federal courts.

[00:33:52] Speaker 05:
Thank you for your advocacy.

[00:33:53] Speaker 05:
Thank you both for your helpful advocacy on this important case.

[00:33:57] Speaker 05:
Thank you.

[00:33:58] Speaker 05:
We're going to take this under advisement.