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Taitz transcribed, with typos

I noticed today that the transcript of the Taitz v. Johnson hearing on August 27 has been made available as part of the Jack Ryan collection at Scribd. As you may recall, the hearing was almost 4 and a half hours, and the transcript runs 170 pages.

The typo on page one was “Dr. Oraly Taitz.”

I trust that interested readers will view the text for themselves. I want to  start out with one quote from page 6 suggesting the effect Orly Taitz has on the legal system:

Let me finish.

— Judge Andrew S. Hanen

One area of interest is a question we have discussed here, exactly how Taitz knows she is treating illegal immigrants. The Court posed the question succinctly (page 27):

How do you – and you know these are alien children because of what? … Do they have some kind of form that’s filled out …

Taitz answers the second part first, saying the patients have a Denti-Cal card. Then she says:

I also take health history where they’re telling me that they just came in.

Taitz claims to have treated hundreds of these kids.

The majority of the transcript regards the questioning of three government witnesses regarding the processing and health screening of unaccompanied minors and family units. The Government, Taitz, and Judge Hanen all had an active role in that questioning.

The next important section is where Judge Hanen denies the motion for a temporary restraining order because he says that the Taitz complaint is not likely to prevail on the merits. Here is his carefully-worded statement:

And that’s – in doing that, I’m actually saying two things. One, questioning, Dr. Taitz, whether you have standing. And, two, while I’m doing that, I’m also questioning it in regards to what I can actually say is a fair reading of your complaint. And the reason I’m going to such lengths to explain that is I’m not positive that you might now, with a better drafted complaint – and I use the word better. I don’t mean that as a criticism. But as a more concise, directed complaint, you might be a good plaintiff or you might standing, but I don’t think you have standing based on what’s before the Court right now.

The Judge further stated that he did not need to hear from Taitz’ witnesses because nothing they could say would “cure your complaint.” Then, remarkably, Judge Hanen give hints (his words) on drafting the complaint. After suggesting she leave out the press reports and the political stuff, he said (having noted early on that Taitz had not alleged negligence):

The only way I see this going forward beyond that – this next stage is kind of what I was talking to Mr. Kisor earlier about, and that is, is if you’re going to have some expert support for your damages. Otherwise I don’t see you having standing even under an amended complaint.

Now, I know that – I actually gave this some thought before the hearing because I was trying to figure out – it’s kind of the cart before the horse. Which do you hear first, the standing issue or – let’s say I rule on standing. The first thing Mr. Hu is going to do – and he’s an old medical malpractice lawyer, and I know what he’s going to do. He’s going to file a motion for summary judgment, saying, hey, you’ve got no proof of this. And unless you have medical proof that somehow these acts caused injuries, you lose anyway.

So, I mean, I’m not necessarily being Carnac the prognosticator to predict that if you get by the motion to dismiss stage, you’re going to get turned around and hit with a motion for summary judgment. Quite frankly, a lot of times in these instances, I’ll just say I’m going to consider the motion to dismiss as a motion for summary judgment. And this is the kind of case I might do it in.

For an index to extended comments by an independent observer, Tomtech, see the end of my article “Unfunded mandate.”

Taitz claims they’re all out to get her

Here’s the quote from her amended complaint (2nd part) in the Johnson case:

It is widely believed that each District Court and each U.S. Attorney’s office has individuals who are embedded in those offices and who are working for (National Security Agency) and FBI and not only gather information, but also tamper with records, similar to NSA tampering with phone records and e-mails, as reported by the federal whistle-blower Edward Snowden.

Taitz goes on to say that this is why it appears that she sent some material directly to the judge that didn’t get on the docket. I wonder how Judge Hanen will react to that allegation of an NSA mole in his court? I wonder how Judge Hanen will react to Taitz misspelling his name on the amended complaint?

In addition, Taitz alleges that a potential witness was pressured to lie in an affidavit to make her look bad. I previously reported that Taitz represented to the court that Immigration officer, Ronald Zermeno , was willing to testify for her and to travel from California. In an affidavit, he said:

I never waived the application of Rule 45(c)(1), particularly since I have had no discussions or interactions with Dr. Taitz.

Taitz claims he was pressured to say that:

Under duress and under pressure of possible employment termination Zermeno signed a declaration where he claimed that he did not know who Taitz was until Judge Hanen ordered subpoenas to be signed on August 25, 2014 and that he did not want to testify.

In fact, several days prior to signing of the order to issue subpoenas, through written text messages and phone conversations with fellow border patrol officers, Zermeno agreed to appear at August 27, 2014 hearing before Judge Hanen and was willing to produce evidence of aforementioned violations by the defendants.

Taitz misrepresents the Zermeno affidavit that nowhere says he had never heard of Orly Taitz, and didn’t know who she was. Further, it appears clear that Zermeno was never properly served with the subpoena.

Expert says Orly has a “good case” that immigrant children are spreading rare disease

imageThe chart at the right came from the Centers for Disease Control. EV-D68 is a strain of enterovirus, first isolated in the United States in 1962. There has been a bit of an outbreak of the generally uncommon virus recently. It is a respiratory virus whose symptoms can range from mild to severe.

Orly Taitz has enlisted the services of Vera Dolan, an epidemiologist writing Taitz in an email:

I have done a little research on the enterovirus outbreak. This strain of enterovirus (EV-D68) is uncommon. I believe that you have a good case to make that this outbreak is associated with the influx of illegal alien children.

I suppose that an epidemiologist trying to make the case that illegal immigrant children were spreading the virus would first want to demonstrate that the children had the virus, or came from a place where the virus was prevalent, and then show that these new cases were showing up in places where the children were being transported, and to try to rule out other possibilities. Dolan attempts to explain the lack of cases along the US border by acquired immunity in those areas due to exposure to historical illegal immigration.

In a 2011 report in Morbidity and Mortality Weekly Report (MMWR), clusters of the disease were diagnosed in the United States, the Philippines, Japan, and the Netherlands. U. S. cases (Sept. 2009) were in Georgia (6 cases), Pennsylvania (28 cases), and Arizona (5 cases). I wasn’t able to find any support for the idea that EV-D68 is common (or even present) in Latin America.

Dr. Ann Schuchat. director of CDC’s national center for immunization and respiratory diseases, points out that respiratory illnesses spread rapidly (and I would add that transportation of children isn’t necessary). She stated in a September 8 conference call:

Respiratory viruses can spread quite quickly across the U.S. we see a number of different respiratory viruses cycling each year or over a couple-year period. So we really do think that clinicians throughout the country need to be on the alert for increases in severe respiratory illness and consider this in the differential diagnosis. Geography isn’t that helpful when it comes to respiratory viruses. We know that flu transits the country pretty quickly and the unusual increases in Kansas City and Chicago may be occurring elsewhere over the weeks ahead so we want people to be on the lookout.

Nowhere is the CDC even hinting that the illness is tied to illegal immigrant children. My money is on a Japanese tourist in Kansas City.

Taitz is asking the parents of children with respiratory illnesses to call her (PLEASE DO).

Amended Complaint

Dolan is quoted in Taitz’s Amended Complaint (continuation pages) as making the remarkable statement:

As an epidemiologist, I believe that Dr. Taitz’s respiratory infection originated from close contact with infected patients who were sent for treatment to her office, in particular immigrants who were detained by the DHS without quarantine or medical treatment for existing communicable diseases and then transported to California.

I believe that Dr. Taitz is in further imminent danger of similar additional infections from immigrant patients detained by the DHS without quarantine or medical treatment for existing communicable diseases.]

This is remarkable given that it was not determined what Taitz got sick from. The full affidavit from Dolan provides no indication of how Dolan arrived at her conclusions, and identified no methodology employed. If I had to characterize her statement it would be: “Taitz said she treated lots of immigrant children with coughs, and she got one too; therefore, she got sick from treating illegal immigrant children, and she will likely get sick again if these children aren’t quarantined.”

The Amended Complaint adds a new claim of negligence, but of course, she cannot sue the government for damages resulting from a policy decision. There is that pesky sovereign immunity thing.

Postscript

I studied a couple of epidemiology textbooks as part of the process of designing software to be used by public health professionals when I was in that business. I also worked for 6 years in a district health department. I have also been a consultant to the CDC on immunization systems. That means I know more than the average person about epidemiology, but am far from an expert. What I can say is that the Dolan affidavit bears no resemblance to any epidemiology methodology I have ever seen, nor does it contain anything I would identify as using the scientific method.

Taitz targets Texas transcript

I don’t recall seeing one of these on a court docket before, but Orly Taitz has ordered a transcript of the motion hearing in Taitz v. Johnson held this past August 27.

The US attorneys also ordered a transcript. The Taitz order has no cost estimate or indication of paying a deposit. The government order has numbers, but blacked out. The government estimated the number of pages at 170. Both ordered email copies, but Taitz left her email address blank. The government version also has a restricted attachment.

As the tort turns (formerly “Raspberry tort”)

Raspberry Torte

Attorneys and other legal-savvy individuals may have cringed at my recent article titled: “Taitz tries tort tomorrow; Judge jabs Johnson” because what Orly Taitz filed was not a tort claim. I don’t know exactly what to call it, but Taitz was not suing for damages as a result of her getting sick, allegedly as a resulting of treating undocumented immigrant children. The ever-helpful Judge Andrew S. Hanen, as I heard the report from Tomtech, told Taitz that the only way she could gain standing was a a victim in a tort claim. The Federal Tort Claims Act gives an injured party the right to sue the government and includes a waiver of sovereign immunity. One of the problems Taitz will have is that there is an exception in the FTCA that immunizes the United States for acts or omissions of its employees that involve policy decisions (which would seem at the heart of the matter here).

Plus, Taitz is going to have to establish standing, and to do that she will have to show:

  1. an injury in fact (her getting sick should count)
  2. a link between defendant’s conduct and her injury
  3. that the Court can redress her complaint

The first point is fairly easy to show, but how is it possible for Taitz to show why she got sick. People get sick all the time, people who have had no contact with undocumented immigrant children. Doctors treat sick people all the time, and healthcare practitioners generally take reasonable precautions against infection, such as the use of masks, gloves and hand washing. The final point is that it would be purely speculative to assert that Orly would get sick again unless immigration policy changed, so I do not see how the Court could grant the extreme relief Orly Taitz demanded (non transportation of children and quarantine) to redress the damage of her getting sick. The Court cannot provide relief contrary to the law, and this writer thinks that what the government is doing in the way of releasing the children is what the law demands.

Read more:

Unfunded mandate

I think most Americans would agree that US Immigration Policy needs change and the law needs reforming. In the current state of gridlock in Congress, that is unlikely to happen, and the resulting fallout is in the news daily.

We see it here in the case of Taitz v. Johnson et al., where Orly Taitz has sued to stop the transportation and release of undocumented immigrant children pending court hearings on their eligibility to remain in the US as refugees. The problem, says a government witness in the Taitz hearing yesterday, is that the US Border Patrol has no jurisdiction outside of the United States, and cannot therefore stop undocumented immigrants from crossing the border and can only arrest them once they cross. A statute passed in the last days of the Bush Administration, the William Wilberforce Child Trafficking Protection Reauthorization Act of 2008, gives unaccompanied minor immigrants the right to a hearing, but the immigration courts are woefully underfunded, resulting in long delays. The legislation requires the government to place these children in the least restrictive setting, which in practice is release to a relative, or foster care.

Judge Andrew S. Hanen, judge of the Brownsville Division of the US District Court for the Southeastern District of Texas, doesn’t seem to like the transportation and and release of these children who are less likely than not to appear at their court hearing, and less likely than not to be allowed ultimately to stay in the US as refugees. Observer Tomtech, who was at yesterday’s hearing in the Taitz case, said that Judge Hanen appeared to be looking for a way to intervene, but concluded that nothing was likely to happen with Orly Taitz as attorney under the complaint she filed and therefore Judge Hanen denied Taitz’s request for a temporary restraining order and her admission to the Court Pro Hac Vice, removing the possibility for Orly to attempt to turn her case into a class action.

The 1:30 PM hearing lasted until almost 6 o’clock. A second hearing was scheduled for October 29th to rule on an injunction.  Judge Hanen has allowed Taitz to file an amended complaint by September 12, followed by the taking of depositions with the Court’s permission.

Read more:

Minute order on hearing:

Minute Entry for proceedings held before Judge Andrew S. Hanen. MOTION HEARING held on 8/27/2014. Appearances: O.Taitz, Atty/Plaintiff; D.Hu, AUSA; C.Kisor, AUSA;(Court Reporter: B.Barnard)(01:31-03:44/ 03:55-05:49). All parties present and ready to proceed. Discussion held as to pending motions. Oral argument held. Govts witness K. Oaks sworn in/ testified/ cross. Govts Exhibits #2,#3,#4 admitted. Defts Exhibit #1 admitted. Court Break. Court Resumes. All parties present. Govts Witness T.Brooks sworn in/ testified/ cross. Govts Witness A.Fierro sworn in/ testified/ cross. Govt concludes its presentation. O.Taitz addressed the Court. Court addressed the parties. Court DENIES the termporary restraining order. Plaintiff has until 09/12/14 to file amended complaint. Defendants have until 10/03/14 to respond either by answer or by motion to dismiss. Plaintiff may reply by 11/17/14. Injunction hearing will be held on 10/29/14 at 10:00 am. Initial Conference set for 10/28/14 is cancelled. Depositions to be taken after amended complaint and with Courts permission. Court adjourned., filed.(csustaeta, 1)