Wednesday, November 24, 2021

No Vaccine For Incivility

A divorced couple's litigation over vaccination and medical care of their two children has been remanded by the Maine Supreme Judicial Court due to the trial court's failure to take judicial notice of CDC website information about childhood vaccines.

The information that Joshua wanted the trial court to judicially notice relates to the second category: scientific fact. When a court is asked to take judicial notice of a scientific fact, the relevant inquiry is whether that fact has been generally accepted by the scientific community—not whether it is universally accepted by the public at large.

...On remand, if Michelle seeks to contest the CDC’s position as a matter of scientific fact, she must show that its position is not accepted to be true within the scientific community. Information available from other scientific sources, such as the Maine Centers for Disease Control, the Food and Drug Administration, the National Institutes of Health, the World Health Organization, the American Academy of Pediatrics, and the American Medical Association could be relevant on this question.

A footnote

We feel obligated to address the unprofessional nature of the brief filed by Michelle’s attorney. Besides engaging in selective editing of the guardian ad litem’s report, the brief does not reflect the standards of civility that we expect because it is filled with intemperate language and unsupported allegations. For example, Michelle’s brief refers to parts of Joshua’s brief as “arrogant[]” and “egocentric, self-serving, and nonsensical”; calls Joshua’s argument about the best interests of the children “slanderous” and “false and defaming”; and makes an unsupported allegation that Joshua’s attorney became “incensed” when the trial court did not take judicial notice of the CDC’s “proclamations.” This type of uncivil language is never acceptable, see Key Equip. Fin., Inc. v. Hawkins, 2009 ME 117, ¶¶ 22-23, 985 A.2d 1139, but is particularly harmful here because the parties already have a long history of strife. Attorneys should seek to reduce heated rhetoric between parties in litigation, not fan the flames of conflict.

(Mike Frisch)

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