General

COVID-19 Legal Cases to Watch

BST Holdings v. OSHA 5th Circuit Stay

The “traditional stay factors . . . govern a request for a stay pending judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the traditional stay standard, a court considers four factors: 

  1. “whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
  2. whether the applicant will be irreparably injured absent a stay;
  3. whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
  4. where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

Each of these factors favors a stay here. — 5TH CIRCUIT 11/12/2021

"IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order." 11/12/2021

The Biden Mandate — the Emergency Temporary Standard (ETS) exceeds OSHA’s statutory authority.  The stated goal of the ETS, which is to “increas[e] a workforce’s vaccination rate.” 86 Fed. Reg. 61437

Petitioners petitioned for review of this ETS mandate on the grounds that

  1. it exceeds OSHA’s authority under its enabling statute,
  2. it exceeds Congress’s authority under the Interstate Commerce Clause, and
  3. it exceeds Congress’s authority under the nondelegation doctrine.

5th Circuit's Order issued 11/6/2021

Before the court is the petitioners’1 emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard2 (the “Mandate”) pending expedited judicial review. Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.

  • [OSHA] was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.
  • the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
  • But health agencies do not make housing policy, and occupational safety administrations do not make health policy.

Marik v Sentara Healthcare, Case No , Norfolk Circuit Court, VA

This suit arises after the hospital issued a prohibition on October 6, 2021, limiting the medications that would be dispensed for prevention or treatment of COVID, claiming that their efficacy/safety is not supported in peer reviewed, published RCT: ivermectin, bicalutamide, etoposide, fluvoxamine, dutasteride, and finasteride.  The prohibition continued, “These medications should only be prescribed if the patient is enrolled in a clinical trial.”  Since the COVID Pandemic began in March 2020, Dr. Paul Marik has treated his Sentara GICU patients with an evolving MATH+ Protocol of anti-inflammatory agents which has
saved lives, and in his real-world experience, has substantially reduced COVID mortality.  Dr. Paul Marik 

Breach of the Duty of Informed Consent - Count 1

In the hospital setting, this right is exercised with and through the advice of the patient’s attending physician, and a hospital’s attempt to silence the attending physician, and to bar him from discussing with and offering to patients alternative treatments that he in the reasonable exercise of his professional judgment believes appropriate, violates both the “patient[s’] right to receive medical care in accordance with [their] licensed physician’s best judgment and the physician’s right to administer it.” Doe v. Bolton, 410 U.S. 179, 197 (1973).  The prohibition interferes with this right.    

Violation of Health Care Decisions Act - Count 2

Under Virginia’s Health Care Decisions Act, individuals have the right to execute an Advance Directive not only to declare in advance what treatment they choose not to receive in case of incapacity, but “to specifically direct” the treatment they are to receive, so long as that treatment “is medically appropriate under the circumstances as determined by [their] attending physician.” Va. Code§ 54.1-2984 (emphasis added). 38. The statute does not say, “as determined by the hospital.” It specifically and expressly says, “as determined by [their] attending physician.” Id. (emphasis added) The prohibition interferes with this right.

Violation of Va. Code § 18.2-499? Remedy under Va. Code § 18.2-500?

§ 18.2-499. Combinations to injure others in their reputation, trade, business or profession; rights of employees.

A. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor. Such punishment shall be in addition to any civil relief recoverable under § 18.2-500.

B. Any person who attempts to procure the participation, cooperation, agreement or other assistance of any one or more persons to enter into any combination, association, agreement, mutual understanding or concert prohibited in subsection A of this section shall be guilty of a violation of this section and subject to the same penalties set out in subsection A.

C. This section shall not affect the right of employees lawfully to organize and bargain concerning wages and conditions of employment, and take other steps to protect their rights as provided under state and federal laws.

Code 1950, § 18.1-74.1:1; 1964, c. 623; 1972, c. 469; 1975, cc. 14, 15; 1994, c. 534.

 

§ 18.2-500. Same; civil relief; damages and counsel fees; injunctions.

A. Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff’s counsel, and without limiting the generality of the term, “damages” shall include loss of profits.

B. Whenever a person shall duly file a civil action in the circuit court of any county or city against any person alleging violations of the provisions of § 18.2-499 and praying that such party defendant be restrained and enjoined from continuing the acts complained of, such court shall have jurisdiction to hear and determine the issues involved, to issue injunctions pendente lite and permanent injunctions and to decree damages and costs of suit, including reasonable counsel fees to complainants’ and defendants’ counsel.

Code 1950, § 18.1-74.1:2; 1964, c. 623; 1975, cc. 14, 15; 2003, c. 578; 2005, c. 681.

Legal and Practical Road Blocks –

Who is Paul Marik, MD?

Paul Marik, MD is board-certified by the American Board of Internal Medicine in Internal Medicine and Critical Care Medicine. He is a Fellow of the American College of Physicians, the American College of Chest Physicians, and the Society of Critical Care Medicine. He holds the EVMS Foundation Distinguished Professorship in Internal Medicine. He has authored or co-authored over 520 peer-reviewed journal articles on diverse topics in the critical care setting, including Sepsis and Myocardial Infarction; most recently, co-authored 10 papers on treatment of COVID-19. He has authored four critical care books, as well as 80 book chapters, and has delivered over 350 lectures on that subject at international conferences and visiting professorships, and received numerous teaching awards, including the National Teacher of the Year award by the American College of Physicians in 2017.

Paul Marik, MD is a licensed physician in the State of Virginia (License #: 0109-542065). He has specialized over the past 35-years as a bedside clinician, lecturer and author in the field of critical care medicine. He is a tenured Professor of Medicine at the Eastern Virginia Medical School (“EVMS”), and the Chief of EVMS’s Division of Pulmonary and Critical Care Medicine within its Department of Internal Medicine. He is also the Director of the General Intensive Care Unit (“GICU”) at Sentara Norfolk General Hospital (“Sentara Hospital”), the corporate defendant named in this action. Crucially, over the past 12 years He has served as the attending physician of record to all patients (up to 20 at a time) in the Sentara Hospital GICU during his regular one week per month 24/7 call rotation.

Paul Marik, MD is the developer of the EVMS COVID-19 Protocol, and one of the developers of the similar MATH+ Protocol, (“MATH+” Protocol stands for Methylpredinose – Ascorbic Acid (Vitamin C) – Thiamine (Vitamin B1) – Heparin + Ivermectin – Statin – Zinc – Vitamin D – Famotidine – Melatonin) and a founding member of the Frontline Critical Care COVID Alliance.

On March 16, 2021 the Virginia Board of Medicine reprimanded Dr. Marik for prescribing controlled substances to 5 individuals “outside the limits of his license and absent a bona fide practictioner-patient relationship”

America’s Frontline Doctors, etc. et al v. Becerra et al

Suit challenging the The Emergency Declaration and the Vaccine EUAs   – The DHHS Secretary has failed to satisfy the “criteria for issuance” of the EUAs set forth in § 360bbb-3(c). The Vaccines are not effective in diagnosing, treating or preventing COVID-19. Absolute Risk Reduction (“ARR”) is a critical measure of the impact of a medical intervention, reached by comparing outcomes in a treated group with outcomes in an untreated group in a randomized controlled trial. The NIH has published a study that indicates the ARR for the Pfizer-BioNTech COVID-19 Vaccine is just 0.7%, and the ARR for the Moderna COVID-19 Vaccine is 1.1%. The benefits of the Vaccines when used to diagnose, prevent or treat COVID-19, do not outweigh the risks of these experimental agents. This is particularly so for children, for whom COVID-19 presents 0% risk of fatality statistically. There are multiple adequate, approved and available alternative products that have been used safely and effectively for decades. For example, the evidence suggests that Ivermectin consistently has an ARR that far exceeds that of the Vaccines.

Case Number: 2:2021cv00702
Filed: May 19, 2021
Court: US District Court for the Northern District of Alabama
Presiding Judge: Corey L Maze

CASE SETTLED - GEORGE MASON UNIVERSITY GRANTED EXEMPTION TO ZWICKI BASED UPON HIS NATURAL IMMUNITY POST COVID ---CASE VOLUNTARILY DISMISSED WITHOUT PREJUDICE) LAW PROFESSOR TODD ZYWICKI v. GEORGE WASHINGTON (GEORGE MASON UNIVERSITY)

Geoge Mason University Law Professor Zywicki had previously recovered from SARS-CoV-2 and had a positive IgG Spike Antibody assay and a positive SARS-CoV-2 Nucleocapsid result.  Professor Zywicki’s semiquantitative antibody reading measured 715.6 U/ml— approximately 900 times higher than the baseline level of <0.8 and comparable to that possessed by vaccinated persons who share his age and health profile.  He received an unbroken string of positive COVID-19 antibody tests on July 25, September 29, and December 16, 2020, and February 9 and May 25, 2021

COUNT I: VIOLATION OF THE RIGHT TO REFUSE UNWANTED AND MEDICALLY UNNECESSARY MEDICAL CARE

By failing to narrowly tailor its Policy to only those employees who lack immunity, GMU’s Policy forces employees like Professor Zywicki, who have robust natural immunity, to choose between their health, their personal autonomy, and their careers in violation of  constitutional rights to refuse medical treatment.

COUNT II: VIOLATION OF THE UNCONSTITUTIONAL CONDITIONS DOCTRINE AND THE FOURTEENTH AMENDMENT’S RIGHT TO DUE PROCESS

An overarching principle, known as the unconstitutional conditions doctrine vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.  If the state policy burdens a constitutional right by imposing undue pressure on an otherwise voluntary choice with a nexus to the exercise of a constitutional right it is illegal. Where one party has at stake an interest of transcending value, like medical privacy and autonomy, the margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of the basis for denying that liberty.  GMU has not and cannot show that the school’s forcing Professor Zywicki to take the vaccine reduces any risk that he will become infected with and spread the virus to GMU students and personnel. 

COUNT III—VIOLATION OF THE SUPREMACY CLAUSE

State law is pre-empted to the extent that it actually conflicts with federal law.  Article VI, Cl. 2 of the United States Constitution. The Emergency Use Authorization (EUA) statute mandates informed and voluntary consent. See John Doe No. 1 v. Rumsfeld, No. Civ. A. 03-707(EGS), 2005 WL 1124589, *1 (D.D.C. Apr. 6, 2005) (allowing use of anthrax vaccine pursuant to EUA “on a voluntary basis”). See also 21 U.S.C. § 360bbb3(e)(1)(A)(ii). 48. It expressly states that recipients of products approved for use under it be informed of the “option to accept or refuse administration,” and of the “significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown.” Id

Distinguishing Jacobson v Massachusetts

“But [Jacobson v Massachusetts] addressed issues of medicine, disease, and society that are increasingly irrelevant. Jacobson’s rationale has little to say about two recently developed controversial vaccines.”  Harvard Law Review

Leading Causes of Death

John Hopkins Medicine – “Analyzing medical death rate data over an eight-year period, Johns Hopkins patient safety experts have calculated that more than 250,000 deaths per year are due to medical error in the U.S.”  

“In 2020 and 2021, that number skyrocketed exponentially with the almost universal failure of physicians to provide prompt life-saving early therapeutic treatment for COVID-19 aimed at inhibiting the replication of the virus instead of the “go home and come back to the hospital when you are deathly ill” non-treatment. ” – Tom Roberts, JD

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal or medical advice.  You should not act upon the information without seeking the advice of an attorney or a physician.  Nothing herein creates an attorney-client relationship or a doctor-patient relationship.