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Hanen to Taitz: Show me case law

I’ve said it before and I’ll say it again. I greatly appreciate it when local newspapers cover local birther events. This time it is the Brownsville Valley Morning Star’s coverage of the Taitz v. Johnson hearing yesterday by reporter Emma Perez-Treveño.

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The reporter’s posts on Facebook yesterday provided some information on how the hearing progressed. The longer version (paid) of the article provides a little more information including the following (via The Fogbow):

Regarding her request for a travel ban, Hanen said that everyone needs to keep in mind what is within the province of the court, and what is within the province of the United States Congress and the Executive Branch. Noting that while he might or not agree with a ban, she might have to show him where he would have authority to issue one, and referred to the well-known saying that, “judges are appointed, but they are not anointed.”

“If you want to go there, you are going to have to show me,” Hanen told Taitz. Taitz told Hanen that he has the right to issue a writ of mandamus to force Burwell to issue an order of quarantine. But Hanen pointed out that the law authorizes, but does not mandate that Burwell issue such orders.

“Why are we here if you find there is nothing you can do?” Taitz asked Hanen amid his observations. “We are here because you filed a lawsuit,” Hanen told her. “I’ll let you question the witness Dr. Taitz, not me,” he added.

Taitz told Hanen that he was refusing to consider the threat of injury to her. “Show me case law,” Hanen told her. “Does the case law provide that? What is the likelihood that it can happen? There is no certainty with Ebola or that you would be affected by it,” he continued. It was noted that the threat must be actual or imminent, not conjecture or hypothetical. “You’re going to have to show me that it’s not hypothetical,” Hanen told her.

Taitz herself did not testify at the hearing, but her “expert witness” Vera Dolan did. The government stated that “a cough is a symptom, not a diagnosis” and Taitz doesn’t know what caused it, and even if she did catch a respiratory infection from one of the immigrant children, that child could have caught it in the United States.

Taitz should go to law school and learn about this stuff.

I personally think that Judge Hanen is out of line holding this hearing at all, until after the question of standing has been settled. Without standing, he has no jurisdiction. But then, I haven’t gone to law school.

There will be pudding?

Orly Taitz gets her next day in court this Wednesday in the immigration/Ebola case Taitz v. Johnson. I was surprised today to see a witness list submitted by the government today. The list is comprised of 5 persons (two by prior testimony) including Miguel Escobedo, M.D., M.P.H, Quarantine Medical Officer, Centers for Disease Control and Prevention. The government also submitted a list of exhibits that inform the Court on procedures for screening immigrant children for disease, advisory information and a CV for Dr. Escobedo. Taitz still has not submitted a witness list.

Taitz on the other hand has filed a 38-page brief in opposition to the motion to dismiss asserting “This court has vast powers to deny admission of aliens.” Taitz’s epidemiological expert, Vera Dolan, provides a second affidavit that to my mind is pretty much junk science based on the post hoc fallacy when it comes to showing why Taitz got a cough. It works in the D68 virus even though Taitz wasn’t diagnosed with this, nor has it been shown that Latin American immigrant children are infected with it. Also, it is infants, children, and teenagers who are most likely to contract the virus. Oh, and Dolan says Ebola is transmitted by sneezing (with a little medical literature to back that up).

Please except my apologies for omitting the John Snow cholera map which is required in any book, presentation or article touching on epidemiology. What Snow showed was that cholera cases clustered around a public water pump, pointing to the pump as a source of infection.

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Read more:

Taitz expands Ebola ban

USA Map overlaid with Ebola virus imageOne wonders why a dentist from California, or even a district court judge in Texas, should be setting policy for public health in the United States. Nevertheless, that’s what Orly Taitz wants Judge Andrew S. Hanen to do in an expansion of her motion filed on October 24. There is an upcoming hearing on Taitz’ lawsuit, about which she says:

On Wednesday 29 October, we have what may be our last chance to stop or at least seriously curtain Ebola’s now wide-open entry into the US.

From the filing:

Plaintiff is seeking for this court to extend this partial ban to a full ban and stay travel to the remaining five airports with the goal of stopping proliferation of Ebola in the US, which has 70% death rate and Health Care providers, such as plaintiff, are more affected than others.

That statistic is not true for patients treated in the US; 85% is the cure rate here1, and in any case I cannot imagine how Taitz sees herself as a health care provider at special risk for catching Ebola. Recall that Taitz’ case was about the transportation of undocumented children while they were awaiting their court date. Taitz tried to show standing by claiming that she herself got sick from treating such children. There is no way Taitz can demonstrate that she is in imminent danger of catching Ebola. Judge Hanen has all he needs to dismiss this mess; let’s hope he does.

In terms of the actual death toll, measles is many times more deadly than Ebola. Measles deaths are preventable through vaccination, but junk science linking vaccines with autism have caused the vaccination rates to fall and mortality from measles to climb.


1Since the article cited, nurse Nina Pham has been declared Ebola-free.

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.