Several years ago, the Blog started posting fairly regularly about decisions challenging vaccine mandates and policies enacted by a range of public and private entities. The reason why there was a spate of such decisions starting around mid-2001 is pretty obvious. A range of restrictions had been imposed in response to the COVID-19 pandemic in 2020, and the roll-out of COVID vaccines following the first emergency use authorization in December 2020 was accompanied by many vaccine mandates and policies. By mid-2021, the challenges were producing decisions that caught our attention. But why would the Blog care about these decisions, given that we do not pay much attention to employment law, education law, or injunctions in general? A few reasons. We do discuss decisions from litigation about vaccines and a number of the legal issues in the vaccine mandate cases, a term used here to describe cases not strictly about mandates, come up in our cases, such as the interplay of federal and state requirements in the area of public health. We also clearly do not like junk science, and it was always clear to us that one side of these cases was likely to need to rely on decidedly junky “science.” It was also clear to us that some courts would struggle with applying the controlling law given possible public pressure and/or personal preferences. Part of this likely dynamic, from our perspective, was that the parties challenging public health laws and policies might be less constrained by ethics and rules than the typical plaintiff in a product liability case, which is saying something.
The basic law in this space was established by Jacobson v. Massachusetts, 197 U.S. 11 (1905), way before the Blog was even a twinkle in Bexis’s eye. In 1905, the smallpox vaccine discovered in England in 1796 had not yet wiped out smallpox in the U.S. Eventually, smallpox became one of several fatal and severely debilitating diseases curbed by widespread vaccination in the U.S., especially of infants and children. We will skip the segue into the logic of the Vaccine Act. We will also not delve into the many challenges to the Public Readiness and Emergency Preparedness Act (“PREP Act” ) and its use to preempt other claims that we have also covered over the last few years. Those are federal laws covered by the Supremacy Clause, as opposed to state laws and actions reserved for the states under the Tenth Amendment. Challenges to state laws and their application have been the subject of many posts that talked about how Jacobson was applied. From this to this and also here, here, here, here, here, and here. In general, the plaintiffs have lost challenges to vaccine mandates because Jacobson is still the law of the land.
Along the way, we have seen a number of cases where the plaintiffs took unsupported positions and cut some corners. The case was dispensed on standing, but the lawsuit over a public service message about the COVID vaccine from Elmo on Sesame Street is probably not even the worst one. Yet we still have not seen a court handling one of these cases take a strong stand to deter frivolous litigation and abuse of the legal system. Doe v. Oceanside Union Free Sch. Dist., No. 25-2304 (GRB)(ST), 2026 WL 2883406 (E.D.N.Y. Sept. 23, 2026), does not reverse that streak, but it should have and maybe the court will take further action to send a message before the case is gone. As we recite the case facts and history, we invite the reader to consider what penalties or referrals would have been ordered if a drug company defendant in a product liability case, its counsel, and its experts behaved like Doe’s did.
Doe originally brought suit to enjoin her minor daughter’s public school from requiring a third hepatitis B vaccine before she could attend eleventh grade. In 2025, the court granted a preliminary injunction overriding the school’s denial of a medical exemption. 2026 WL 2883406, *1. Once plaintiff came back in 2026 for a similar preliminary injunction for the denied exemption for twelfth grade, the court realized that it had been duped last year. Somewhere in between, the court realized that plaintiff’s counsel had sent a September 1, 2025, letter to every school district in New York “threaten[ing] legal action based on the [Doe] preliminary injunction determination.” Id. at *1 n.1. The letter “grossly mischarteriz[es] the express terms” of the “narrow” prior decision as broadly applicable to other students and situations. In denying the second injunction, the court expressly found that the actions of the plaintiff’s counsel who signed the letter “were both factually incorrect and professionally inappropriate.” Id. No sanctions or referrals for bar proceedings accompanied that determination, however. (We will not include links that show the plaintiff lawyer’s letter or broader marketing efforts, but they make the inappropriate behavior look worse.) Plaintiff’s original exemption request had been based in large part of a doctor’s vague assertions of risks posed to plaintiff’s minor due to her particular health problems, which are not described in the opinion exempt to characterize them as being of mysterious origin. The doctor also apparently offered that the plaintiff’s minor had some protection from the first two hep B vaccines and that the risk of transmission to other students was low, but did not address the risks she faced from attending school with so many unaddressed health issues. Id. at *1.
On the second round, the plaintiff also had to address her failure to get the required meningococcal vaccine for her daughter. She tried to rely on the same doctor rather than one of her actual treaters. Id. at *2. This individual had never treated plaintiff’s minor in any capacity, but merely spoke with her mother to determine what he was supposed to put in the exemption application. Predictably, the state had determined that he had a history of submitting fraudulent applications and put him on its suspended list. Id. He also lied about his interaction with the school to make it seem like they refused to provide him with information, when the opposite was true. Then plaintiff herself lied about the same issues in a sworn affidavit. Id. Thus, the school was never actually provided with any information supporting a risk of harm from either vaccine the plaintiff’s minor had not received, which was grounds to deny the exemption request. (It is implicit in the history that many of these same issues of proof and honesty were present but unknown at the time of the 2025 preliminary injunction.) The plaintiff then tried to switch to a second doctor as the basis for her exemption request, presumably because the state had not listed him as purveyor of vaccine fraud. Id. at *3. Yet, his submission was “highly similar” to what the other doctor had written, relying on lab results that were contrary to his assertions. Id. To top it off, he also ignored requests for information from the school and failed to show as the court hearing to testify. Id.
The actual determination that plaintiff was not entitled to a preliminary injunction because she could not show irreparable hard or a likelihood of success on the merits was pretty easy on this record. The Second Circuit had upheld New York school vaccine mandates requires a few times, including in the Miller case discussed here. Id. at *3-4. Miller discussed what needs to be shown to satisfy the statutory requirements for a waiver. Plaintiff’s applications did not come close, even if plaintiff did not rely on “vaccine fraud” and had not lied under oath. There was no basis to overturn its denial. Id. at *4.
So the preliminary injunction was rightly denied. The defendants’ motion to dismiss remains pending and the court requested briefing on whether plaintiff had exhausted state administrative remedies before suing in federal court. Id. On this record, it is hard to see that a dismissal is not coming. However, as we have said more than a few times, such as here in the context of hallucinated citations, we think courts need to do more to deter frivolous litigation, false court filings, false statement under oath, and other shenanigans that seem to be much more common on the plaintiff side of the civil v. A footnote that plaintiff lawyers’ “actions were both factually incorrect and professionally inappropriate” will not change their behavior in other cases, especially if they benefited from the misconduct. On their own, it is unlikely that the plaintiff lawyers will pull down their prior letter to the New York school districts and post this Doe decision with an apology. If there were a sanctions hearing, then perhaps those school districts could submit evidence of the harm they suffered from the false and unprofessional letter and its publicization. The defendants in Doe surely can link their own litigation costs to the specific bad acts by plaintiff, her lawyers, and their experts. With substantial costs to shift, the court could take steps to deter future bad conduct by these individuals and others. After all, even parties with good cases are not supposed to engage in this sort of misconduct. If bad conduct by parties with frivolous cases is not deterred, then one could say that it is really being encouraged.