OA579: The New Blueprint for Anti-Vax Lawsuits

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments, this is episode 579, and Andrew, I'm fine now, but I feel like after we talk I might be a little less fine. How are you doing?

0:01:28 Andrew: Yeah, you'll be less fine. Look, this is going to have ups and downs. I'm doing fantastically well. No, how are you doing?

0:01:35 Thomas: Well, I'm worried about the segment. I'm dreading this deep dive, although I love learning from you and I love knowing what's going on. So it's a love-hate relationship. Maybe we just play the same wildcard segment again about Sidney Powell getting to do a repeat segment just in case we're Too bummed out.

0:01:51 Andrew: One. Yeah.

0:01:52 Thomas: And Sidney Bell is still going to be disbarred. But no, let's get into it. I want to to know what's going on with this dangerous new, what you've teased as kind of the dangerous lawsuit, the new kind of prototype of lawsuits here.

0:02:04 Andrew: So let's dive right in, this lawsuit is entitled, uh, Devon Griner, MD versus Biden, the United States of America, Department of Health and Human Services, Xavier Becerra, Center for Medicare and Medicaid Services, and if you're thinking, is this an anti-vax lawsuit, this is an anti-vax lawsuit, will tell you that this went through kind of an evolution in my preparation for this show, because the very first thing, I know, well, first this is being blasted out from bad faith right-wing sources of you know, this is, we're gonna, you know, tear down the vaccines.

And And it's a lawsuit brought by a crazy person alleging crazy things. And anybody can file a lawsuit. Then what I did was what I always do when somebody links a story. And even when I find the complaint is I go to Pacer and I pull up the docket history and I see what's happened, it, because oftentimes super funny things have happened, and sure enough a thing I have literally never seen before happened in connection with the filing of this case, which is docket entry number three, the day the complaint was filed, was marked, modification of docket error, plaintiff filed against themselves, correction,

0:02:37 Thomas: Sure, sure.

0:03:25 Andrew: Docket text has been modified to reflect complaint is filed against defendants rather than plaintiff, and answer records are corrected regarding that, second docket entry number two, so this is docket injury number three

0:03:37 Thomas: So, they're allowed to fix it. They don't get like an instant loss. I feel like that should be like an instant like, ah, you lose because you filed against yourself. So pay yourself Money. Yeah. Know,

0:03:45 Andrew: Yeah. It, they filed a complaint for violation of civil rights and declaratory and injunctive relief against plaintiffs and the court had to tell them, you're the plaintiff. So I thought, okay, this is gonna be Great, uh,

0:03:52 Thomas: Yeah. Delightful. Romp. We'll just talk about a nonsense lawsuit, ah.

0:04:01 Andrew: Yeah. So we, we do our typical Opening Arguments, let's scroll to the bottom and let's look at the signature page, right, and this is another good illustration, I actually meant to say this the last time we walked through a particular complaint on the show, uh, we had one of our, one of our long-standing listeners, uh, scrolled all the way to the bottom, but this was an Appellate, Brief, and so the Appellant Brief attached the lower court's decision as an exhibit, and so they were quoting from the lower court's opinion and saying, I'm a little bit bit confused here. Well, so let's be clear. You have to, if you're doing the scroll to the end of the document, what you're looking for is the submitted, right, this date, very truly, whatever is the signature block you are looking for, the end of the complaint, you need to scroll back.

0:04:58 Andrew: If you reach the exhibits, you've gone too far. Do a U-turn, So right? Let's go to the signature page. The signature page here is plaintiff's demand, a right to a jury trial for all matters so triable, and is signed by the De Villiers Law Group, George R. Wentz Jr., and Gross and Rooney, Jefferson W. Gross. And I went and looked these guys up, and they're both normal, very well-qualified practitioners of law. So George Wentz, for example, is the lead counsel from the DeVilliers Law Group. He operates out of their New Orleans, Louisiana office. He has 30 years experience in handling complex international litigation, maritime litigation, oil and gas exploration and production matters, international transactions, constitutional law cases.

0:05:47 Andrew: He has a reputation as a results-oriented lawyer, knowing for innovative thinking and problem solving. You look through and you're like, yeah, if you were hiring somebody, you might want somebody who deals a little bit more specifically if you are challenging a government mandate with cases against the government. But complex litigation matters. This seems like a perfectly reasonable person to have represent you. And so then I'm like, OK, well, maybe the nutball contingent here is local counsel Jeff Gross, right, at Gross and Rooney, because this lawsuit is raised in Utah. Jeff Gross trial lawyer with 25 years of experience who has taken numerous cases to jury verdicts. Now, his case, his his plaintiff's firm does a lot of medical malpractice, but also does business and commercial litigation.

0:06:40 Andrew: Right. And so, yeah, this is not quite their area, but perfectly competent to to serve as local counsel, trial counsel in this area. And that that was little odd. Right. Like, you know, usually you're expecting lunatics. Again, this case is a Griner versus Biden filed in the U.S. District Court for the District of Utah. Okay. So now we're going to read backwards to the three causes of action. And And here's Where you can bring the sigh of relief that oh, yes, they're still bringing the crazy. So first cause of action violation of the fifth and 14th Amendment substantive due process claims.

Like, if I haven't fully articulated what what substantive due process is, when the government deprives you of a constitutional right, it the equal protection test of strict scrutiny, right, in order to pass that threshold, But right? Where the right is not a fundamental right, the court just applies the good old rational basis test, right. Right. If the violation of the right can be rationally related to a legitimate governmental purpose, then the law is upheld as valid. So what counts as a fundamental right? You will not be surprised to learn that this is a thing that Clarence Thomas thinks doesn't exist at all, that Antonin Scalia was super skeptical about.

0:07:13 Thomas: Hmm.

0:08:02 Andrew: The idea is if the right is deeply rooted in American history and traditions. And these tend to be things that are coextensive with the penumbra from Roe v. Wade, for example. That is what we think of as kind of the heyday of the Supreme Court actually caring about individual rights, the late 60s, early 70s. And these are things like the right to marry the person of your choosing. These are things like the right to control your reproductive health, deeply held, cherished constitutional rights that may or may not be spelled out in the Constitution, but are, quote, deeply rooted in American history and traditions. Spoiler alert, not getting a vaccine is not one of those things. This will not surprise you. At all, going to get into the, in fact, I'm going to flag the argument right here because it's just bonkers, it's this paragraph 87 on page 23 which says,

0:08:10 Thomas: Well,

0:09:05 Andrew: Because the injections are treatments and not vaccines, strict scrutiny applies. The Supreme Court has recognized a general liberty interest in refusing medical treatment. It has also recognized that the forcible injection of medication into a non-consenting person's body represents a substantial interference with that person's liberty. These citations here are, uh, the the primary citation is to Cruzan versus Missouri Department of Health, and you might remember the Nancy Cruzan case, uh, from 1990, that was a euthanasia case, right, so these are not remotely apposite decisions. Saying that you have a general liberty interest in refusing medical treatment is not at all the same as saying that you have a fundamental right to control anything that is or might be related to your medical treatment. And the idea that look

0:10:01 Thomas: Getting vaccinated is basically being euthanized, so I see why they're making that argument, yeah.

0:10:05 Andrew: At the argument. The argument says because they're treatments and not vaccines, strict scrutiny applies. So the idea is if they were real vaccines, and we will get into this bonkers argument, then you know, we'd be S.O.L. here, right, like you.

Because that that is true in the sense that the Jacobson decision says that public vaccination, when conducted by the states, mandatory vaccination by the state of Massachusetts, is from the first, the first decade of the 20th century, is over 100 years old, um, uh, that that is not uh a violation of your constitutional rights, so it's been long standing, so they have to plead this bizarre argument that we're going to get through, okay, so the substantive due process argument seems not great, what about count two, that is the equal protection argument, and, um, here's an opportunity for me to educate both our listeners, uh, and, uh, plaintiff's counsel in this case, because this is equal protection under the Fifth Amendment, right, because it is applied to a an action being undertaken by the U.S. government, but the standards that are used are standards developed from 14th Amendment cases, right, in the context of the 14th Amendment's guarantee that no state shall deprive any person within its jurisdiction of equal protection of the laws.

And you might say, well, the 14th Amendment says state, why would that apply to restrictions on the federal government? And the answer is a little bit of an obscure doctrine called the reverse incorporation doctrine. Yeah, it stems from a case called Bowling versus Sharp from 1954. So we've talked about incorporation, you

0:10:10 Thomas: Yeah. Yeah.

0:11:49 Andrew: Know, regular vampire incorporation. That is that the 14th Amendment made the protections of the Bill of Rights applicable to the states on a case by case basis. All but a handful of them. Right. And until recently, they did not include the Second Amendment. They still do not include, for example, the Sixth Amendment's right to a grand jury. So that's incorporation, applying federal standards to the states. Reverse incorporation is exactly what you would expect, which is, can we apply the standards that we, as the Supreme Court, use to constrain state conduct to the federal government? And in Bowling v. Sharp, the Supreme court in 1954 thought that was obvious. It's here's quote, in view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the federal government. And so you see why that's 1954 case. It's a slightly different caption. But the idea is, hey, we Brown v. Board of Education says states cannot engage in racial segregation in our public schools.

0:12:11 Thomas: Yeah.

0:12:57 Andrew: You know, but what about What about a federal schools? Right. What about the District of Columbia? And the answer is, yeah, look, if we're going to say it's a restriction on the equal protection due citizens under the 14th Amendment, we're gonna read that back into the Fifth Amendment's guarantee of due process of law as applying to the federal government. So, in other words, the Constitution couldn't possibly impose a greater burden on the states than it does on the federal government. It would be unthinkable. Now, again, just want to point out this is 1954. This is not like the heyday of liberalism at the Supreme Court.

0:13:22 Thomas: Yeah.

0:13:43 Andrew: This, though they obviously would have been on the wrong side of that case, um, is 0 consistent textual list or originalist justification, the justification is a philosophical and pragmatic, it's the one that I just gave, right, you, which is, yeah, it would make no sense for the Constitution to imply and uphold greater obligations on the states than it does on the federal government. But that's not specified anywhere.

0:14:12 Andrew: That's it does not say there's no rule saying that a dog can't play baseball. So I do not see how, if you're an originalist, you can think that Bowling v. Sharp is good law, that you can think that the reverse incorporation doctrine exists. But fortunately, for now, it still does. And again, you know the equal protection standards from state litigation? That is, if a state discriminates against a suspect class, you get strict scrutiny. If they discriminate against Against women, you get intermediate scrutiny, but for all other class-based discriminations, right, where you draw distinctions between individuals, you get the rational basis test, the exact same one as that would apply to count number one, right? And will see the immediate application of this example. You know, think about the 7-Elevens, no shirt,

0:14:11 Thomas: Doesn't Say Yeah.

0:15:02 Thomas: Against

0:15:02 Andrew: No shoes, no service, right? That discriminates between shirtless, shoeless people. It creates two classes of individuals, people who wear shirts into the 7-Eleven and those who do not. And all you need is rationally related to a legitimate government interest, right? So if we have a law that says you can't go shirtless into the 7-11, you can'T go shoeless into the seven 11, all you NEED is some kind of idea that, you know, well, well, probably that's safer for people. Probably

0:15:05 Thomas: Shirtless, Shoeless, shoeless. Joe Jackson, yeah. Yeah.

0:15:37 Thomas: Yeah.

0:15:37 Andrew: That's like less gross. And that's good enough. And so that being obvious, count two says, and I should, by the way, I should clarify at this point, we have not described exactly what this lawsuit is challenging. This lawsuit is challenging uh what what we would call the CMS vaccine mandate, right, just one of them, this right is the one that requires employees at facilities that receive Medicaid or Medicare funding, uh, to be vaccinated, right, so it's one of the executive orders that Biden, uh, promulgated.

Spoiler alert, we actually covered it on the show, uh, because it went all the way up to the Supreme Court, in the the Supreme Court. This was Episode 560. We had a rapid reaction. You entitled Episode 560. The Supreme Court is just plain making stuff up in their vaccine rulings. This is the one we spent the least amount of time on because it covers a far smaller group of people. And the Supreme Court on the same day struck down the OSHA vaccine requirements. So this is the smaller version that survived the Supreme Court. Why we're getting another bite at the apple? Because these folks don't care and they're just making things up. So question that is correctly stated, the Equal Protection Clause prohibits classifications that affect some groups of citizens differently than others.

That's true. The question is, what's the standard of review? View. This is paragraph 106. I swear to you, I am not making it up. The CMS mandate creates two classes of healthcare workers, injected and uninjected. The members of one class, the uninjectED, get terminated.

0:16:27 Thomas: Oh, yeah.

0:17:16 Andrew: The uninjected cannot advance their careers. They cannot provide for their families, pay for their mortgages, or make a car payment. The other class, the vaccinated, get to keep their job in their chosen profession, advance their careers, provide for their families. Pay their mortgages and make their car payments. Yes, that is literally the argument, so the only question is, um, is the injected versus the uninjected, uh, invidious discrimination against a suspect class, um, This They Are Saying

0:17:39 Thomas: Wait, they're saying that's a suspect class. How would that I thought they were saying it's good. Just any I mean, that's obviously just a class, I guess. That's like shirtless people, right? Are they saying this is not like shirtless? People? This is like, oh, my

0:17:44 Andrew: Yeah. Yeah. This Is like Discrimination on the basis of race. Yes. Yeah. Quote, this is paragraph 107. The situations of these employees are indistinguishable because injected health care workers can become infected with COVID, become reinfected with COVID, and can transmit COVID to fellow health care worker's patients and visitors. The injections make no difference in these respects, that Yeah.

0:17:57 Thomas: God.

0:18:15 Thomas: No difference. Wow.

0:18:16 Andrew: No difference, their only function is to make symptoms less severe. So the argument is, uh, because vaccines are not 100, because the COVID vaccines are not 100% effective, uh, that means they might as well be zero percent effective. And that means you cannot discriminate between people who want to be vaccinated and people who don't want to be vaccinated. If you think any of this is the law, uh, that would, that would be wrong. The third cause of action is, this is ultra virus, this is beyond, uh, the powers of the federal government, because the police powers, uh, to provide for the, you know, health and general welfare of citizens are reserved to the states.

Again, this is just something that only an idiot or somebody willfully disregarding the law could possibly file, because this has gone all the way up to the Supreme Court. In Biden versus Missouri, the Supreme Court said, even this Supreme Court said that this is a valid exercise that particular the CMS mandate is a solid exercise of the powers delegated to the Department of Health and Human Services by Congress. So, um, this entire third cause of action is just, made uh, up out of whole cloth. And I don't, uh. See, again, we covered this on episode five 60. uh okay. Right. Let's let's dust our hands and be done with? It. Bad

0:19:09 Thomas: Oh. Even this Supreme Court. Okay.

0:19:40 Thomas: Yeah,

0:19:40 Andrew: Complaint.

0:19:41 Thomas: Yeah. Why are we talking about this?

0:19:41 Andrew: Why are we talking about this? We're talking about this because I have pieced together the law and the application of the law to the facts. The reason I drew the analogy to the Kraken lawsuit is because we have not yet done the work in public of explaining who the bad faith actors are in connection with with the anti-vax movement that we've done in the election cases, right? The election cases. It's super easy. You're like, yeah, yeah. Yeah. Look, you're going to have an affidavit from Russell Ramsland. You're going have an aphidavid from Terpsichore. You're gonna have an afidavitt from Spider. These are people who are lunatics who show up at the, you know, pillow guy's conference to announce that the votes were hijacked by Venezuela and then sent overseas to Europe and converted into Biden votes and sent back.

0:20:32 Andrew: It's super easy now to prove that that these people are frauds. The evidence cited in this complaint is cited so selectively and so misleadingly that I thought it was important to identify who these players are, because in my view, this is this is where the next kind of pivot is going to come from.

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0:24:19 Andrew: Not, you this person, Devin Griner, is a facial reconstruction and plastic surgeon in Utah. Right. He's not somebody I asked around like I I called up, you Know, our friends over puzzle in a thunderstorm. And and I asked, hey, does anybody know anything about this guy? And this is not, you know, sort of an immediate person who is high on anyone's radar. And the complaint cites a trio of doctors repeatedly again and again who have real credentials, Really right? Are at the top of their field. They are the folks who were behind what is called the Great Barrington Declaration. OK, I will point out the Great Barrington Declaration is a is a hostile to vaccines position. This will contradict because this is just a matter of like stringing together seemingly gotcha quotes.

0:25:14 Andrew: It will contradict the argument that is made in this complaint. So Great Barrington's is basically a bunch of folks who said we we should not have mandatory universal vaccination, because we should just kind of wait for the population to reach herd immunity. That was their argument. Argument half of the arguments raised in this complaint are we will not reach herd immunity thanks to Omicron so it they do not care what their own supposed experts have to say. The Great Barrington Declaration was sponsored by the American Institute for Economic Research, and if you ask what the American Institute for Economic Researchers I will tell you it is a libertarian think tank funded by the Coke brothers that has put out climate change denial research, right? So So right wing garbage site.

0:25:59 Andrew: And it engaged three different doctors. And the flakiest of the three doctors is a name we actually have mentioned on the show before, Jay Bhattacharya. But he's a professor of medicine at Stanford University. He's very, very conservative professor. His subfield is the economics of health care. He wrote an opinion piece in The Wall Street Journal that was called Is the Coronavirus as Deadly as They Say, which challenged the.

0:26:28 Thomas: Yes.

0:26:29 Andrew: Yeah. Yes. Which challenged the 2020 shelter in place orders and quarantines. Jay Bhattacharya put out a study that suggested that herd immunity was well underway, that 80,000 residents of Santa Clara County, California, were already infected with COVID it and therefore on their way to developing natural immunity. That study was widely criticized for basic statistical and methodological errors. And of course, the fact that Dr. Bhattacharya failed to disclose that the study was funded by JetBlue founder David Nealman, who, you might have a slight interest in releasing information that suggests that lockdown orders are inappropriate. Appropriate, that's Jay Batacharya. We have mentioned him before. We have not mentioned Sunetra Gupta, um, are professor of theoretical epidemiology at Oxford University in the department of zoology.

0:27:25 Thomas: I feel like a lot of people became professors of theoretical epidemiology during this COVID pandemic.

0:27:25 Andrew: Yeah that's True, uh, but this you is somebody that know has uh real credentials, and you know, you can't even mock the zoology part since you potentially zoonotic transmission. So right. Released a modeling study suggesting that half the population of the UK might have already been infected with COVID-19.

0:27:48 Thomas: Yeah. I remember my family was, they probably still believe these things were, there was, there, it was all these ways to try to just convince themselves of a comfortable fiction that oh we all already had it we just didn't know so everybody's all we're already immune.

0:28:02 Andrew: Yeah. So the idea was that, you know, we should protect. And again, the way in which this differs from, you big lie proponents is Gupta's argument was, look, I'm not saying we should, Those you who are severely immunocompromised who can still get the vaccine should be vaccinated. Let's, you shield vulnerable groups of people and, you know, put them in lockdown. But, let's you not affect my life and comfort and quality of living. And exact quote, we're saying, let'S just do this for the three months that it takes for for the the pathogen meaning COVID-19 to sweep through the population and you know that then everybody's going to be fine that's Gupta and then finally Martin Kulldorff is a professor of medicine and a biostatician at Harvard co-wrote several articles along with Bhattacharya including signing on to the Wall Street Journal editorial that we talked about Kullendorf said anybody under or 50 years old should live their normal lives unless they have some known risk factor.

0:29:00 Andrew: And anybody above 60, whether teacher or bus driver or janitor, I think should not be working. If those in their 60s can't work from home, they should be able to take a sabbatical supported by Social Security for three, four, whatever months it takes before there is immunity in the community that will protect everybody. So those are the names of our bad guys here, right? Bhattacharya, Gupta, Kulldorff, their argument is, let's get to herd immunity. Keep that in mind as we go through and talk about the actual arguments that are made in this complaint. Oh, by the way, I should add that the Barrington Declaration is one of these, like, sign on to our online petition, right? And they claim that, you know, over 14,000 scientists have signed on to right. It, Right. Except that if you go to the Web site, all you have to do is click the box that that says I am a scientist. Folks have gone through and noticed that on their list of.

0:29:57 Thomas: I'm something of a person who can click a box myself, please.

0:30:01 Andrew: Yeah. Of their 14000 scientists who have signed the declaration includes Mr. Bananarama, Dr. I wish I'd thought of that, given my love of Bananarama.

0:30:12 Thomas: Do not dismiss the valuable contributions to science that Mr. Bananarama has made. This is I want to apologize for Andrew's ignorance. Mr. Bananarama's the great, great, luminaries again.

0:30:17 Andrew: Dr. Johnny Bananas. Dr. Johnny Fart Pants. Dr. Dr.

0:30:30 Thomas: These are all great examples of scientists. Are you gonna get to the fake ones? Ah.

0:30:34 Andrew: Person Fake Name. Still on the list. And my personal favorite. I could keep going. My personal favorite, Professor Natath Akinklu. Yeah. Professor Akinklu is widely Renowned in his field. Okay, so they've got this nonsense online petition. The argument is, uh, look, just, you know, kind of let it go and then, you know, we'll all, uh, get to herd immunity and then nobody will have to be locked down. The argument the complaint makes on the other hand is the CMS mandate must be struck down because, one, the overwhelming evidence shows that the injections do not prevent transmission, infection, or reinfection in those who receive them, uh, by the way that's false, right? If if prevent is, unless prevent is described as 100, right? Two, the CDC director has admitted, the direction that the injections do not prevent infection or transmission of SARS-CoV-2, the virus that has been identified by various public health agencies as causing the disease known as COVID-19.

0:30:36 Thomas: Yes they yeah CNN

0:31:36 Andrew: This is the first footnote, and this is supported by, uh, an attached exhibit. What the vaccines can't do anymore is prevent transmission, is the quote. Let's go to exhibit A and find out, uh, if that this is in fact, uh, what that says. Footnote one says, Madeline Holcomb, fully vaccinated people who get a covet 19 breakthrough infection transmit the virus, CDC chief says. It is a citation to a a CNN health article from August 6th, 2021, um. Yeah And this is a badly cropped, uh, Madeline Holcomb and Christina Maxoris, just reporters, uh, that say, uh, in its completion, um, "Our vaccines are working exceptionally well," Walensky, uh, that is, uh, CDC Prevention director Dr. Rochelle Walenski told CNN's Wolf Blitzer. "They continue to work well for Delta with regard to severe illness and death. They prevent it. But what they can't do anymore is prevent transmission.

That's why the CDC changed its guidelines last week and is now recommending that even vaccinated people wear masks indoors again if you're going home to somebody who has not been vaccinated, to somebody who can't get vaccinated, somebody who might be immunosuppressed or a little bit frail, somebody who has comorbidities that put them at high risk, I would suggest you wear a mask in public indoor settings," Walensky claim. So

0:32:09 Thomas: Again eh well

0:32:58 Andrew: This article says we've discovered, uh, that the vaccines are incredibly effective with respect to the Delta variant, uh, but they can't guarantee that you won't transmit the Delta gradient to someone else. So if you're going home to that person. And it would be really bad if they got COVID. Hey, maybe mask up. That's their evidence. And it gets worse in terms of of being misleading.

0:33:24 Thomas: I mean the grain of truth in this is that yes, with uh Omicron, they don't prevent, the vaccines don't present transmission as well. I thought they still help, don't they?

0:33:33 Andrew: Yes, of course they do. So all of these citations. We Right. Can't prevent transmission. Right, are based on the idea that yeah, the CDC is not saying that the existing vaccines are 100% effective in preventing your ability to transmit COVID to somebody else, even between two vaccinated individuals. Everybody listening to this who is not a lunatic is going, well, duh, right, like that's that's how it's been described, but they are incredibly effective at reducing the transmission rates. We're going to to look at an actual study. And by the way, if you do transmit it, they are very, very likely to minimize the effects that you have if you get COVID?

0:34:19 Andrew: So all of those are really great reasons why our health professionals are unanimous, virtually unanimous, and speaking with one voice and saying, yeah, everybody should be vaccinated. And by the way, even if you are vaccinated, you should probably take precautions in areas where you might spread COVID to others. Right, the other footnote here is a citation to outbreak of SARS-CoV-2 infections, including COVID-19 vaccine breakthrough infections, associated with large public gatherings from a study in Barnstable County, Massachusetts, July 2021. This is Katherine M. Brown at all, there are like 20 co-authors on there, um, and it uh does in fact, right, this is noted as a C, also it does in fact uh stand for the proposition that you can transmit COVID even if you've had the vaccine, but the conclusion of this article, right, I'm reading directly from the study itself, is event organizers and local local health jurisdictions should continually assess the need for additional measures, including limiting capacity gatherings or event postponement, based on current rates of COVID-19 transmission, population vaccination coverage, and other factors.

On July 27th, the CDC, that's 2021, the CDC released recommendations that all persons, including those who are fully vaccinated, should wear masks in indoor public settings in areas where COVID- 19 transmission is high or substantial. Findings from this investigation suggest that even in jurisdictions without substantial or high COVID-19 transmission might consider expanding prevention strategies, including masking in indoor public settings regardless of vaccination status,

0:36:03 Andrew: Given the potential risk of infection during attendance at large public gatherings that include travelers from many areas with differing levels of transmission. So, in other words, the research cited in support of the proposition that you cannot require mandatory vaccinations suggests that in addition to existing public health measures like vaccination, that we should have higher levels of masking and social distancing, even among fully vaccinated folks.

0:36:31 Thomas: So yeah, I'm not clear on the exact numbers. I mean, I think it's little bit straw bot to say that prevent meant 100% because even with the old variants, nothing, nothing. No one ever expected prevent to mean 100%. I think it's a matter of degree. And I do think that with Omicron, it doesn't you prevent, thought I it was pretty stark that it really doesn't present transmission that well, the vaccines. However, and you can tell me if you have the actual numbers on that, but however, none of that seems to me to prove that you can't require it because it doesn' prevent, you kno, that' still a plenty, there's still plenty rational basis for having a vaccine uh requirement, oh

0:36:31 Andrew: Right you would think that, but we will get to, and in fact I I'm going to read the argument right now that uh prevents you from making that that sort of um, steel botting the other side, because the very next set of arguments is that the CDC secretly quietly rewrote its definition, definition of vaccine and vaccination, admitting that it was changing the rules in order to hide the fact that these aren't really vaccines at all. That is near direct. In fact, me let read it so that I cannot be accused of paraphrasing this. You can follow along. This is page four of the the complaint. This is paragraph, subparagraphs five through eight. In fact, the CDC has actually changed its definition of vaccine and vaccinations so that the injections would fit within this new definition. Until recently, the CDC defined a vaccine as a product that stimulates a person's immune system to produce immunity to a specific disease, protecting the person from from that disease.

0:37:30 Thomas: Here we go, those

0:38:19 Andrew: The CDC also previously defined vaccination as the act of introducing a vaccine into the body to produce immunity to a specific disease. Both prior definitions fit the common understandings of these terms. To be vaccinated meant that the recipient should have a lasting, robust immunity to the disease targeted by the vaccine. But on September 1, 2021, the CDC quietly rewrote those definitions. It changed the definition of vaccine to prep, a preparation that is used to stimulate the body's immune response against diseases, and it changed the definition of vaccination to the art of introducing a vaccine into the body to produce protection from a specific disease. Thus, the CDC has eliminated the word immunity from its definition of vaccine and vaccination.

This is a critical factual and legal distinction. And then you, they get into the nonsense about the Supreme Court has long held that the right to refuse medical treatment is a fundamental human right. Since the injections do not stop the transmission of SARS-CoV-2, as a matter of fact, they are not vaccines as a matter-of-law. Instead, they're a therapeutic or medical treatment which Dr. Grenier has the fundamental human right to refuse. So let's unpack this secret, the definitions. This is not a legal document. This has no legal standing whatsoever. This is the public-facing page of the CDC's website, which says, when you click on vaccines and immunizations, and then the FAQ, basics and common questions.

0:39:01 Thomas: Bastards

0:39:50 Andrew: And it initially said, immunization, the basics, still sends that. Then there's a separate link right under it that says, understanding mRNA COVID-19 vaccines. mRNA vaccines are a new type of vaccine to protect against infectious diseases. Click this hyperlink to learn about how COVID-19 mRNA vaccines work. By the way, that hasn't been changed. So you'd think like, oh, on September one, we secretly scrubbed the site. You know, maybe we would have to go back and change that. Nope, didn't change any of that. And then we have the definition of terms and they define, you would think because the lawsuit says they changed the definition of vaccine and vaccination, those would be the terms that were defined on that, doesn't tell you that, by the way, the page defines four terms, immunity, vaccine, vaccination, and immunization.

0:40:36 Andrew: The definition of immunity, the not change somehow in this secret document. It was and is protection from an infectious disease. If you are immune to a disease, you can be exposed to it without becoming an infected. So that's the definition of immunity. Then there is the definition of vaccine, which begins with a product that stimulates a person's immune system to produce immunity to a specific disease, protecting the person from that disease. Vaccines are usually administered through needle injections, but can be administered by mouth or sprayed into the nose.

Changed to a preparation that is used to stimulate the body's immune response against diseases, vaccines are usually administered through needle injections, but some can be administered by mouth or sprayed into the nose, so we got rid of protecting the person from that disease, all then vaccination, the change is from the art of introducing a vaccine into the body to produce immunity to a specific disease got changed to the art of introducing vaccine into the body to produce protection from a specific disease. And then immunization, the definition stayed the same, a process by which person becomes protected against a disease through vaccination, this term is often used interchangeably with vaccination or inoculation. So red not like a crazy person, what you

0:41:55 Andrew: See is, yeah, immunization is the process by which you become protected against a disease through vaccination. Okay, did we write total immunization means that you can't, can't uh, you can be exposed to it without becoming infected? We did, because that is the end goal. Do we want to say every time you get a vaccine, you become 100% immune? No, we don't want to say that anymore in a basic FAQ to people who are browsing and trying to figure out, should we get the vaccine or not? We don't want to be misleading people, right? That's part of what the CDC is trying to do here. So we're not going to say something that somebody might read as, oh, if I get vaccinated, there's no chance that I can get this. Because that's not the case, none right, of this is the the legal definition, none of it shows a secret conspiracy to hide all the documents.

0:41:55 Thomas: But Andrew

0:42:43 Andrew: Yeah wait, no, please go on uh

0:42:44 Thomas: Don't you see I just, that's if I say don't você then I think that should tell you that there's a conspiracy, yeah

0:42:52 Andrew: Yeah, it it should, um, let's go through again, remember that these are are their So I'm going to scroll ahead to footnote 11, which again appears on page 13. And these are, in support of quotations that are wildly out of context. And you can tell beginning at the one supported by footnote 11, which is NIAID Director Dr. Anthony Fauci to NPR, quote, "We now know as a fact that [bracket] vaccinated people with COVID-19 [and bracket] are capable of transmitting the infection to someone else." And again, that's supported by an NBC News story that's sort of weirdly cut.

0:43:38 Andrew: Uh, but you, uh, know that Dr. Fauci is not anti-vaccination, right, so.

0:43:44 Thomas: Wonder.

0:43:45 Andrew: It says what the full story says is Dr. Fauci saying, "We are dealing with a different virus now. This is not the original virus we were dealing with. This has different capabilities, much more efficient in transmitting from person to person," referring to the Delta variant, explaining why the CDC changed and, uh, its mask guidelines to require those who to suggest that those who were vaccinated should nevertheless, uh, wear masks. Fauci said the CDC reversed its mask guidance on Tuesday, recommending that fully vaccinated people go back to wearing masks indoors in places where there are high transmission rates because Delta is now the dominant strain in the U.S. In May, when the CDC announced that fully vaccinated people could ditch their masks, the more transmissible Delta variant represented only about one to two percent of infections. Research suggests that data, that Delta is much is is as much as 60 percent more transmissible than the previously dominant Alpha variant.

0:44:33 Andrew: And, "we now know as a fact that vaccinated people with COVID are capable of transmitting the infection to somebody else," then the very next sentence, not quoted, again because we're talking about Delta here, is, "breakthrough"

0:44:46 Thomas: Why they leave this one off? Okay, let's see.

0:44:48 Andrew: "Infections, although rare, occur when a vaccinated person is infected with the virus." So, you know, the CDC recommends that even people who are fully vaccinated mask up if they live in places where there is substantial transmission. Just a deliberate, you fraudulent misquote.

0:45:04 Thomas: Yeah. Yeah, they went to the Bill Bar school of, quoting reports.

0:45:05 Andrew: Yeah. Well, maybe you're not convinced by that. How about, uh, World Health Organization Chief Scientist, Dr. Swaminathan, quote, "At the moment, I don't believe we have the evidence of any of the vaccines to be confident that it's going to prevent people from actually getting the infection and therefore being able to pass it on." That sounds pretty damning, doesn't it? Except that this is, again, a weirdly cut Business Insider news article that, just, just as a couple of bullets, it says World Health Organization's Chief Scientist, Dr. Sumya Swaminathan, has urged people to be cautious with their behavior even after receiving COVID-19 vaccine. So, I mean, Swaminathan told a Monday briefing there was not yet enough evidence from vaccine trials, quote, "to be confident that it's going to prevent people from actually getting the infection and therefore being able to pass it on."

0:45:54 Andrew: She added that, at least for now, even people who receive the vaccine should still quarantine when traveling to countries with lower coronavirus transmission rates. So again, you see the pattern of using health experts saying, "Hey, let's be cautious here, we don't have all the information," being portrayed as, "This is a secret conspiracy of something that doesn't work." I'm going to give you more because there is more, because all of this is terrible. Dr. Tal Zaks, Chief Medical Officer of Moderna, "There's no hard evidence that it stops COVID-19. Vaccinated people from carrying the virus is transiently and potentially infecting others who haven't been vaccinated," that's footnote 13, it is attached as Exhibit F, and again, I had to do no work here, right.

0:46:40 Andrew: These exhibits are attached to their own complaint, so if you read the complaint and look at the exhibits, you can debunk this. The lawsuit is not going anywhere. This is designed, just like the Kraken lawsuits, to gain traction in anti-vax and info wars communities, to say, "See, look, like, there there's a court document that says," and it quotes this, you know, damning smoking gun from the Moderna boss. This was a New York Post article that says the COVID-19 vaccine is not proven to stop the spread of the virus. The actual quote from Dr. Talzak's, "I think we need to be careful, as we get vaccinated, not to over-interpret the results. When we start the deployment of this vaccine, we will not have sufficient concrete data to prove that this vaccine reduces transmission." All right, there's the quote. Okay, we skipped the "as we get vaccinated" part.

0:46:47 Thomas: Yeah.

0:47:34 Andrew: Oh, yeah. We also did the skip the next line trick again. Do I believe that it reduces transmission? Absolutely. Yes. And I say this because of the science. "But absent proof, I think it's important we don't change behavior solely on the basis of vaccination." Yeah.

0:47:45 Thomas: Wow. Geez, that's this close to, like, if you ever see this in a lawsuit, make sure yeah it's like, pretty, pretty aware of what's happening. Oh. This show is brought to you by Paint Your Life. Folks, we can travel again. Traveling, it is time to make some new memories. We've all been shut in so long. I'm hoping that a lot of you are, including, going to be able to get out there, make some new memories, and take, once you've made those memories, one of the best ways to celebrate them and to get someone a very meaningful gift is PaintYourLife.com. Here's what PaintYourLife.com is all about. You get a professional hand-painted portrait created from any photo at a truly affordable price. Or you can combine photos of of people and places you love into one painting, or your pets. Maybe you've got a couple pets that aren't good at posing together and standing and sitting still you, for for the camera. Well, maybe you've got two great portraits of Maybe you can combine them into one.

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0:50:03 Andrew: And now we get into the quotation. So we've mixed in quote mining from actual experts who encourage you to be careful with quotes from the cabal of anti-vaxxers that we talked about earlier, right? So, first we didn't talk about Professor Sir Andrew Pollard, who led the Oxford vaccine team. "We don't have anything that will stop transmission. So I think we're in a situation where herd immunity is not a possibility. And I suspect the virus will throw up a new variant that is even better at infecting vaccinated individuals." So this is footnote 14. This is from The Telegraph. You might think, you know, the Sir Andrew Pollard indicates that we're probably not talking about an American doctor.

0:50:48 Andrew: And we're not. We're dealing with the head of the Oxford vaccine team that called for an end to mass testing so that Britain can just, quote, start to live with COVID, end of quote. Professor Andrew Pollard said that the Delta variant could infect people who had been vaccinated, which made herd immunity impossible to reach, even with the high vaccine uptake. So here's somebody saying we're not going to get to herd immunity. So anyone, this is a direct quote, who is still unvaccinated will at some point meet the virus. We don't have anything that will stop transmission. So I think we're in a situation where herd immunity is not a possibility. I suspect the virus will throw up a new variant that is even better at infecting unvaccinated individuals. So time to stop doing anything, right? Paul Hunter, professor in medicine at the University of East Anglia and an expert in infectious diseases, told the committee, the concept of herd immunity is unachievable because we know the infection will spread in unvacculated populations.

0:51:43 Andrew: And the latest data is suggesting that two doses is probably only 50% protective against infection. We need to move away. This is more fun. You would

0:51:50 Thomas: 50 that's awesome so you're telling me I can reduce my chances of spreading it or getting it by 50%. That's incredible.

0:51:57 Andrew: Think that would be good. We need to start moving away from just reporting infections or just reporting positive cases that have been in the hospital to actually start reporting the number of people who are ill because of COVID. Otherwise, we're going to be frightening ourselves with very high numbers that don't translate into a disease burden. Sir Andrew argued that if mass testing was not stopped, Britain could be in a situation of continually vaccinating the population. Quote, this is more Sir Andrew.

I think that as we look at the adult population going forward, if we continue to chase community testing and are worried about those results, we're going to end up in a situation where we're constantly boosting to try and deal with something that is not manageable. It needs to be moving to clinically driven testing, in which people are willing to get tested and treated and managed, rather than lots of community testing. If someone is unwell, they should be tested.

But for their contacts, if they're not unwell, it makes sense for them to be in school and being educated. It. Okay, so this argument is don't test because we're not going to get to herd immunity anyway, the vaccine is 50% effective. On and again, yeah, legitimate argument, there's somebody who's making that, on the hills of that are, where we start quoting from the guys we let off with, right?

And the very next point is Jay Bhattacharya, quote, "Based on my analysis of the existing medical and scientific literature, any exemption policy that does not recognize natural immunity is irrational, arbitrary, and counterproductive to community health." He did say that. Jay Bhatacharya is arguing that you cannot, that we should achieve herd immunity by allowing those who are, quote, "naturally immune," by having, by virtue of having had the virus, to continue to circulate in the community without being vaccinated.

0:51:57 Thomas: Yeah.

0:53:38 Andrew: So is, you can tell that it is a grab bag of nonsense, because everybody who signed on to the Great Barrington Declaration did so to say our public health policy should, should be about promoting herd immunity by allowing people, kind you of the equivalent of, you let's have parties for our children so that they can all share the chicken pox.

0:54:01 Thomas: Yeah.

0:54:01 Andrew: Right. That's a herd immunity argument. Right. Next up, we have and this is just grotesquely out of context. This is Subpoint F and Footnote 16, which says that a study of a SARS-CoV-2 outbreak in July 2021 published in Eurosurveillance observed that 100% of severe, critical, and fatal cases of COVID-19 occurred in unvaccinated individuals. The author stated that the study challenges the assumption that high universal vaccination rates will lead to herd immunity and prevent COVID-19 outbreaks. Now, when we read that document, is, again, published literature. It is nasocomial outbreak caused by the SARS-CoV-2 Delta variant in a highly vaccinated population in Israel as of July 2021.

0:54:50 Andrew: You might be thinking may not be particularly comparative to the United States. This was a nosocomial outbreak of SARS-CoV-2 Delta variant infected 42 patients, 39 of whom were fully vaccinated. The attack rate was 10.6 percent, 16 out of 151 among exposed staff and reached 23.7 percent among exposed patients in a highly vaccinated population. 16 to 26 weeks after vaccination, all cases were linked and traced to one patient. So are the recommendations here? Year. The recommendations is exemplifies the high transmissibility of the Delta variant among twice vaccinated and masked individuals.

0:55:35 Andrew: This suggests some waning of immunity, albeit still providing protection for individuals without comorbidities. However, a third vaccine dose may be needed, particularly in individuals with risk factors for severe COVID-19. Appropriate use of masks, especially in high-risk settings, is advised. So, More, Vaccines, This is a, this is a pro-booster research article. It stands for the exact proposition, the exact opposite of the proposition for which it is cited. Mixed in after that is, uh, some quoting of Dr. Malton Kaldorf, we recognize from the Great Barrington Declaration, and Dr. Sinetra Gupta, who truly believe the stuff. But represent, again, the, yeah, the climate

0:55:41 Thomas: Yeah.

0:55:53 Thomas: So more vaccine is what we need.

0:56:18 Thomas: Did Dr. Fartface Banana Hammock, whatever, did those scientists not get cited in this?

0:56:23 Andrew: Change denial equivalent of this position, right? And this is, you know, we've been going at this for a while. So I think I have fully demonstrated, I want to end that it ends with an appeal to, well, just check out the VAERS database. And again, as as anybody knows who has dealt with any of this anti-vax nonsense, VAERS is a self-reporting platform. And that self-reporting means that in addition to just plain out fraudulent data.

0:57:01 Thomas: That means that Dr. Fartfaced Banana Hammack can go in there and report that he died seven times of the vaccine. Virus

0:57:04 Andrew: Right. This was. And has been explicitly called out and dog whistled on right wing sites, including a full hour on Tucker Carlson of, hey, you can log on to VAERS and do it. Right? Right. So in addition to that, this does not count, for example, as a fraudulent entry in the VAERS database. That is, my wife received the covid-19 vaccine on Tuesday. Then let's say on Wednesday she was hit by a bus.

0:57:19 Thomas: Yeah.

0:57:37 Thomas: Hit by bus. That's so funny. I was going to say this as a joke, but that's actually the thing.

0:57:38 Andrew: Right. Right. Yeah. And then I report I report on Wednesday, you know, suffered severe abdominal distress and died due to hypoxia. Right. Like there is nothing that's not a fraudulent entry because VAERS is meant to track the coincidence of events. Nothing it's Right. It's self-reported, but it is also validly self- reported. Because think about what you're typically doing here is you are looking at vaccines, right, that have been have made it out of clinical trials. And the question is, is there going to be the way in which VAERS data is properly used is you gather all of these self-reported incidents. You look at it and go, wow, the vaccine for chickenpox, for example,

0:57:46 Thomas: Yeah, wow. Does Get a lot of people

0:58:27 Andrew: Yeah, sure seems to have a comorbidity with asphyxiation. So why don't we that that's an area that's a coincidence. That's not a causal relationship. Nothing in VAERS establishes that. So why do we do some research and see if that's illegitimate side effect?

0:58:27 Thomas: Hit by buses, right?

0:58:43 Thomas: Yeah.

0:58:43 Andrew: Right, why that, this helps us direct our research into areas where there is a coincidence of data. The idea that you can use it to prove, uh, as they say on paragraph 65, "the long established CDC database Vares demonstrates significantly higher reports of death and adverse events with the injections than with prior vaccines." That's what they cited for. Yeah, so.

0:59:07 Thomas: Oh.

0:59:07 Andrew: Look, let's bring this to a conclusion. If the Great Barrington Declaration were valid, let's assume that these are not paid off professors who are highly conservative, working for an economic think tank funded by the Koch brothers, which they are, that publishes climate denialism, change which it does. Even if it were valid, what it would show is that there are alternative, there are disputed alternative ways to go about combating the health crisis. And that is the definition of a rational basis, Right. Right? You do not have to show that you are engaged in the best public policy outcome. If you are not discriminating against a protected class, if you are not infringing on a fundamental constitutional right, then and you have appropriately had that power delegated to you by Congress, all of which is the case here.

0:59:59 Andrew: Then what you have to show is that the administration did reasonable background research to come up with a reasonable policy alternative that is rationally related to a legitimate government interest. And even the Supreme Court, again, terrifyingly, it's only five to four. And I have no idea why Brett Kavanaugh Decided to join on Team Sanity. Maybe he had somebody die of COVID in his family. But narrow, and it's bad, and it's fragile. But even the Supreme Court recognizes that this is going nowhere. But notice what I had to do to walk you through what is a superficially plausible lawsuit, signed on to by qualified lawyers and not lunatics. No Terpsichors, no spiders, no nothing here. Just a grab bag of unbelievably misleading pull quotes combined with, you know, people who have a legitimate minority, a potentially legitimate minority opinion. That does not mean anything like what people are saying it's going to mean.

1:00:20 Thomas: My God, I

1:01:06 Andrew: But if you think that these folks are not going to raise money and bring case after case in order to get, carried you by right wing media, well, you're a bigger optimist than I am.

1:01:16 Thomas: Guess I'm Confused about all this, because I thought, so all this that we went through was just to try to establish this like deep state conspiracy about how the vaccine doesn't actually prevent spread of the virus. There's almost no discussion that we had, and I'm curious what the lawsuit, like, how the lawsuit tries to do this to say that that matters, like How Okay. Well,

1:01:38 Andrew: Here's how They It's A great question, we flagged it, but I think I went quickly over it in at the beginning, and, um, it doesn't quite make sense and piece together until we've done that deep dive. Paragraph 83, so this is, the we go back to the first cause of action. This is paragraph 83 on page 23, says the injections are not vaccines as that term has traditionally been understood, but are, as a factual matter, medical treatments, right? That was the whole point of establishing this. They're not really vaccines because they don't stop a hundred percent of transmission. Indeed, the CDC even recently changed its own definitions of vaccine and vaccination to eliminate the word immunity. We went through that. Paragraph 84, immunity is the sine qua non of all vaccines. That's all it says.

1:02:03 Thomas: Okay. Yeah. Got That What Okay. Right.

1:02:22 Andrew: 85, the ability to decide whether to accept or refuse medical treatment is a fundamental right. Accordingly, paragraph 86, the the CMS mandate, violates plaintiff's constitutional right to decisional privacy with regard to medical treatment. And then we go back into, remember I told you it had these two misleading citations, in paragraph 87, because the injections are treatments and not vaccines, strict scrutiny applies.

1:02:45 Thomas: And I'm just I guess what I'm saying is, what's that argument? They're just saying that, what is that Actual argument Because my, the whole time you're saying this, I'm like, okay, assume we grant all this, whole time I've been like, granted, granted, granted, just for the sake of argument. Yeah, no, it's a worthless, it doesn't prevent transmission, but it is a, oh, yeah, no, it's not a vaccine, it's medical treatment. Even granting all that, which is not true, I'm just saying for the stake of argument, what does that matter? Like, you still, if all you need is rational basis, can't the government just be like, yeah, well, it is rational that we could require people to get a really good medical treatment?

1:02:50 Andrew: They The Yeah Yeah. And the sole citation here is to the Cruzan decision, Cruzan versus Missouri, 497 U.S. 261, which again is a euthanasia case. This was Nancy Beth Cruzan was rendered incompetent as a result of severe injuries sustained during an automobile accident. And the question was, can the co-petitioners, her parents and co-guardians, get a court order directing the withdrawal of the artificial feeding and hydration tubes after it became apparent that she had virtually no chance of recovering her cognitive faculties? Supreme Court of Missouri held that because there was no clear and convincing evidence of Nancy's desire to have life sustaining treatment withdrawn under such circumstances, her parents lacked the authority to effectuate such a request.

1:04:10 Andrew: The Supreme Court granted certiorari and now affirms. So in other words, this is what led to the Cruzan decision, is what lead to the proliferation of living wills in this country. This is a 1990 decision. I vaguely remember, you know, again, I was a teenager, I vagually remember that, you know, it was a, a huge event, but, the Supreme Court basically said, look, you have to have clear and convincing evidence that somebody wants to withdraw life-saving treatment, or else the default is going to be to continue life-saving treatment, that is The case, yeah.

1:04:47 Thomas: Okay. Ipso fatso.

1:04:49 Andrew: Ipso Fatso, there is a general liberty interest in refusing medical treatment if you're

1:04:56 Thomas: It doesn't really seem like what that case says to me. I'm no lawyer, Andrew.

1:04:56 Andrew: Yeah Yeah If You Were thinking If You're thinking that, that seems grotesquely out of context, uh, you'd be right. So this is an issue about, right, informed consent. And, right, so after reviewing all the cases, the Supreme Court says the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Beyond that, these cases demonstrate both similarity and diversity in their approaches to the decision of what all agree is a perplexing question with unusually strong moral and ethical overtones. State courts have available to them for decision a number of sources, right, which are not available to us. In this court, the question is simply and starkly whether the U.S. Constitution prohibits Missouri from choosing the rule of decision which it did. This is a case of first impression, uh, of whether there is a right to die. We follow precedent from 1897, where we said that in deciding a question of such magnitude and importance, it is the better part of wisdom not to attempt by any general statement to cover every possible phase of the subject.

1:05:59 Andrew: That you heard me read, generally encompassing the right of a competent individual to refuse medical treatment. Now does that in any way comport with the decision in the case? Does it establish that, like, my right to refuse being vaccinated is a fundamental liberty interest on a par with, uh, my right to marry someone of Uh A different race? No, it does not. It is a preposterous and terrible argument, and it is a preposterous and terrible argument that is based on a set of facts that do not exist, right, like This Is a complaint that agrees that if they're really vaccines, we're just out of luck, but they're not really vaccine, see, they're Secretly treatments, because to be a vaccine, immunity is the sine qua non of all vaccines, is there any Citation for That, GFY

1:06:19 Thomas: Not at all.

1:06:35 Thomas: Yeah, yeah. Oh, my God. Well, that's a cool word, so it must be true.

1:06:51 Andrew: Yeah Yeah Exactly, so there you go.

1:06:54 Thomas: What is the thing about this that you think is going to get emulated and is dangerous?

1:06:59 Andrew: Anybody can file these suits because the opposing witnesses, the Great Barrington Declaration people, have not yet, uh, been exposed as cranks, right, because, uh, they have legitimate, uh, Oxford, Harvard, uh, Stanford, right, these are real credentials. It's really terrifying, and this lawsuit was very, very clearly filed to give right wing sites things to quote, and yet is well represented by competent counsel, non crack and lawyer counsel. And, you know, if it's doctors bringing in, doctors tend to have an awful lot of disposable income, right? They earn high salaries and work long hours. So I'm really, really nervous about this. And I suspect that a lot of your Uncle Frank's this, have seen sites misrepresenting the Grineer complaint. It's nonsense. I mean, we just just demonstrated that it's nonsense, but but it's a tough one.

1:07:39 Thomas: Yeah.

1:07:56 Clip: And thank you, Let's go!

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1:08:45 Thomas: This is not the greatest. You know what? I can't this month. Support Ukraine. Putin is a clown horn and clown horn. I agree. April Poff. I I really Hope I made The Third Quintile. Otherwise, you're stuck with this lazy name. For sale. Patreon name ideas. Call 420-6969. Nice.

1:09:06 Andrew: You.

1:09:07 Thomas: General contact. You need a problem, child. His name is my name too. Minneapolis PD is still trash, but the Minnesota AG is taking on slumlords, so we got that going for us, which is nice. The Dows, learned handjob. Dallas DA John Krizot owes justice to Diamond Ross. New intro quotes for episode 24 squared. Oh, cool. Big Gabe owner. And your turn, Andrew.

1:09:35 Andrew: And a big thank you to Jake. To only a burger with bacon can be called a hamburger, otherwise it is just sparkling link cow. Christopher. Brown. Seattle Pete. Philly live show 2022. And the new OA Fantasy Football League champion. London Jets. To vaccinated Aussie in Germany, if I get the next T3BE right, can you top up my supply of Vegemate and Tim Tams, please? To Stormy Decisis says go to transfam.xyz to help families of trans youth get out of dangerous U.S. states, that's transfam, t-r-a-n-s-f-a.m.x-y-z Absolutely. Two, the coin is rigging T3BE with a Chinese thermostat controlled by an Italian satellite. Darth Mandy Pants, judicial review is the original inhabitant of the constitutional penumbra, how do originalists justify that doctrine? To Robert M, to Lou, to Thick Penumbras.

1:09:43 Thomas: Nice.

1:10:33 Andrew: You make the illegal reasoning sound love that, to Bob Loblaw's Law Podcast, to Ball Arena live show, after the cup, Polly Hernandez, to these are just simple farmers, people of the land, the common clay of the new West, you know, morons, and to Lawful Copter says, America, where, where we want our children to breed but not read. Ouch.

1:10:58 Thomas: All right. Thanks so much, top patrons. You make the show go round.

1:11:03 Andrew: You. Do until.

1:11:04 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:11:10 Thomas: And And now it's time for T3B, Traumas Tries to Be Ethical, answer time. Oh man, let's hope I am not on a losing skid here. Did I manage to pull this one out?

1:11:17 Andrew: Yeah. So this was a man asked an attorney to represent him pro bono, for free, in an appeal from the denial of his unemployment benefits. The lawyer says, sure. And then, Thomas, as you point out, you get what you pay for, missed the filing deadline. And then the lawyer goes, all right, all right, I missed the filling deadline, here's what we're going to do. You're going to agree not to sue me, that is, you're going to waive any malpractice claim, and I'm going to pay you, out of my own pocket, the amount had we won on appeal. So, okay, the question is, and then I give you, I write in that settlement offer, that you have the right to consult independent legal, you sign it, but you don't consult the counsel. The question is, that ethical? Am I subject to discipline? And you narrowed down to the two best answers, right?

1:12:06 Andrew: To either, yes, you're subject to disciplin, because the attorney made an agreement with the man to waive a potential claim for malpractice, right, is there a specific rule that says you can't do that? Or the answer you went with, answer C, no, because the attorney advised the man in writing to seek independent legal counsel before agreeing to the proposed settlement. And Thomas, you are back in the saddle. Again. My. Friend.

1:12:26 Thomas: Back on, all right.

1:12:28 Andrew: Yeah. Um, this is a case where, uh, the rule is Rule 1.8 H2, which says, a lawyer shall not settle a claim or potential claim for such liability with an, an unrepresented client or former client, right, that's what we have here, unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. So yeah, I can settle claims that clients may bring against me, but I have to advise them that

1:12:28 Thomas: Whoo, mm-hmm,

1:12:59 Andrew: They Should talk to a different lawyer, right? You're suing me, don't rely on my advice. This is also covered by comments 17 and 18, right, that specify that this particular provision of the Model Rules of Professional Conduct do not prevent an attorney from settling a claim or potential claim for malpractice, those agreements are not prohibited by this rule, nevertheless, in view of the danger that a lawyer will take unfair advantage of a former client, the lawyer must advise a person in writing. So congratulations.

1:12:59 Thomas: Right?

1:13:27 Andrew: Yeah.

1:13:27 Thomas: There you go.

1:13:28 Andrew: You got it exactly right.

1:13:29 Thomas: Yay, nailed it. All right, one more of these and I've got my gentleman's A minus, and then we can go back to the hard stuff where I get a gentleman's F minus.

1:13:37 Andrew: And.

1:13:39 Thomas: Or a solid F, could just be a regular F if I do really well. All right andrew who is this week's big winner And I will be doling out the prizes this week because Andrew is playing in the March Madness Tournament, or he might have said he's watching it. One of those two things is true, but we don't know which. There is no law that says an Andrew can't be playing in NCAA Tournament. Anyway, quite a few wrong answers. I always like, when I look at the answers, I always check out everybody who got it wrong. Makes me feel better. Here's good wrong one, and it involves Magic the Gathering. So like, yeah, I'm going to obviously read this one. At Jason is why. Hochstater, but if waiving malpractice claims was allowed and I was a lawyer, I would include a malpractice waiver in every single batch of documents I'd make a client sign before I'd agree to take them on.

1:14:28 Thomas: I'd also build an infinite unsummoned combo in Magic the Gathering. I am that guy. Who doesn't love a good infinite unsummoned combo? But Jason, I have to disagree with you. I mean, I think that isn't true by the same logic of like, oh, I'd made the client sign over their house to me in every simple batch of document I made them sign. I think what stops you from doing that is ethics and getting caught once or twice, you know, and then getting reported to the bar probably. So wrong answer. I just thought I'd read that. Here's a quick winner. Toby Reed said the answer is C because I found your source material. That's a good one. But Andrew's pick for the winner this week was at Harrier. The answer is see I'm recovering from hip surgery. So taking Taking the time to clean off a decade of digital documents, including bar prep from 2013.

1:15:16 Thomas: One document dated a week prior simply said, Fah, and then I won't say the end of the word. Nothing else. That's unrelated to the answer. I just found it hilarious. They are Andrew's pick for the winner. So at Harrier, H-A-R-R I-E-R, Congratulations. Enjoy the literally never ending fame and fortune. Absolutely guaranteed. Guaranteed because that's what happens when Andrew leaves to go play in a college basketball tournament. Thanks so much for playing and better luck next time, everybody. And that's our show. Thanks for listening, everybody. And we'll see you for another Rapid Response Friday, as always. See you then.

1:15:49 Andrew: Then?

1:15:49 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:16:23 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.