Mont. Med. Ass'n v. Knudsen

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MONTANA MEDICAL ASSOCIATION, et al., Plaintiffs, and MONTANA NURSES ASSOCIATION, Plaintiff-Intervenor, v. AUSTIN KNUDSEN, Montana Attorney General, and LAURIE ESAU, Montana Commissioner of Labor and Industry, Defendants.

No. CV 21-108-M-DWM

United States District Court, D. Montana, Missoula Division

December 9, 2022

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Donald W. Molloy, District Judge

Neither legislation nor litigation arise in a vacuum. No party questions the authority of the Montana Legislature and Governor to exercise their respective legislative or executive authority to enact or modify public health and antidiscrimination laws. Rather, the challenge in this case stems from an ostensibly purposed anti-discrimination statute and its incongruent impact on healthcare providers and patients, hospitals, nursing homes, doctors' offices immunocompromised individuals, and health care workers. The legislation was enacted when varied political and individual concerns came to light around December of 2020 during a worldwide health crisis that caused millions of deaths, inundation of available hospital beds, exhausted and depleted equipment and the need to deal with a remarkably lethal pathogen identified as COVID-19. Federal, state, and local governments took various steps to try to minimize and thwart the consequences of the pandemic. Simultaneously, individuals of different persuasions or views objected to COVID-19 vaccinations because the vaccines had been developed on seemingly short timelines or for religious or other reasons including being against any vaccination. For whatever reasons some objected to COVID-19 vaccination mandates and other recommended steps to minimize the terror of the pandemic, including business restrictions and imposed precautions affecting individual citizens.

It was in this social environment that the challenged statute was enacted. Whether by intent or by oversight the statute did not deal specifically with COVID-19 but instead encompassed all vaccines whether for measles, mumps, rubella, tetanus, diphtheria, pertussis, hepatitis, or flu. The scope and breadth of the statute's application caused critical concerns for health care providers whether hospitals, doctors' offices or other medical facilities by limiting the ability of such providers to know the vaccination status of patients and employees. The law preemptively precludes health care providers and other employers from knowing the vaccination status of employees or patients if the employee or patient refuses to answer any inquiry about vaccination status or immunity passports. The statutes allow a question, but no one must answer. That situation, for any number of reasons, creates untoward problems for healthcare providers of any description in trying to protect the environment where services to patients are rendered and to prevent the spread of diseases.

In this case, as with many cases in litigation, there are ironies. The striking irony for the Court here stems from an acknowledgment of the role of Dr. Maurice Hilleman in the history of the development as well as the efficacy of vaccines. Dr. Hilleman is known as the “Father of Modem Vaccines.” The irony is that Dr. Hilleman was bom in Miles City, Montana, graduated from Montana State College in 1957 and was the most prolific vaccine scientist of the 20^th Century. He is estimated to have saved more lives through vaccines he invented than any other medical scientist. Among the many vaccines he developed are hepatitis A and B, Haemophilus influenzae type B (Hib) pneumococcus, meningococcus, and varicella (chicken pox) and he was the first person to combine viral vaccines when he created the MMR vaccine for measles, mumps, and rubella. The importance and efficacy of vaccines is clear if only from the accomplishments of Dr. Hilleman, and to put it in perspective, Dr. Hilleman's measles vaccines alone is credited with preventing almost a million deaths.^[1]

It is in this context the present lawsuit arose. For the reasons set forth below, Plaintiffs are entitled to the limited relief requested.

A bench trial was held in this case to determine whether Montana's vaccination and immunity antidiscrimination statutes, Montana Code Annotated §§ 49-2-312 and -313,^[2] offend the Supremacy Clause of the United States Constitution or the federal and state constitutional principles of equal protection or the protection of inalienable rights. Based on the evidence and testimony presented at trial and considering the applicable law and the parties' written submissions, the following findings of fact and conclusions of law are made pursuant to Federal Rule of Civil Procedure 52.^[3] Having heard or read all of the evidence presented, I find that § 49-2-312 is unconstitutional and it is preempted by federal law. The defendants are permanently enjoined from enforcing § 49-2312 in health care settings as more particularly stated in the conclusion of this Order and Opinion.

Jurisdiction and Procedural History

Jurisdiction is proper in this matter under 28 U.S.C. § 1331, providing federal-question jurisdiction, and 28 U.S.C. § 1367, providing supplemental jurisdiction. As previous orders in this case have held, Plaintiffs have standing to challenge the statute at issue.

Plaintiffs are health care professionals, health care facilities, and immunocompromised patients. They include: (1) Institutional Plaintiffs- Providence Health & Services - MT (“Providence”), Western Montana Clinic, and Five Valleys Urology; (2) Provider Plaintiff-the Montana Medical Association; (3) immunocompromised Individual Plaintiffs-Pat Appleby, Mark Carpenter, Diana Jo Page, Wallace L. Page, and Cheyenne Smith; and (4) the Montana Nurses Association (the “Nurses”) as Plaintiff-Intervenor (collectively “Plaintiffs”). Defendants are Austin Knudsen, in his official capacity as the Montana Attorney General, and Laurie Esau, in her official capacity as the Montana Commissioner of Labor and Industry (collectively “Defendants”).

The lawsuit was filed on September 22,2021. The Nurses intervened as a matter of right under Federal Rule of Civil Procedure 24(a) on November 30, 2021. (Doc. 26.) Plaintiffs claim that § 49-2-312 is preempted by federal law and is furthermore unconstitutional under both the Montana and United States Constitutions. Following a hearing on March 18,2022, a preliminary injunction was granted against enforcement of § 49-2-312. (Doc. 53.) Later separate motions for summary judgment, (Docs. 81, 84, 91), were filed by all parties and taken under advisement in anticipation of the bench trial, (see Doc. 152).

A three-day bench trial took place from October 24 to October 26, 2022. The parties jointly agreed to treat each expert's Rule 26(a)(2) disclosure as the witnesses' direct testimony subject to in court cross-examination. Plaintiffs called five expert witnesses-Dr. David King, Dr. David Taylor, Dr. Lauren Wilson, Dr. Gregory Holzman, and Dr. Bonnie Stephens-and eight non-expert witnesses- Mark Carpenter, Wallace Page (via Zoom), Diana Jo Page (via Zoom) (Individual Plaintiffs), Megan Morris (on behalf of Plaintiff Western Montana Clinic), Vicky Byrd (on behalf of Plaintiff-Intervenor), Kirk Bodlovic (on behalf of Plaintiff Providence), Marieke Beck (on behalf of the Human Rights Bureau), and John O'Connor (on behalf of Plaintiff Five Valleys Urology). (See Doc. 158.) Defendants called two expert witnesses, Dr. Jayanta Bhattacharya and Dr. Ram Duriseti. The parties also stipulated to submission of the declaration of Carter Anderson (on behalf of the Montana Department of Health and Human Services) as trial testimony and the deposition designations of Carter Anderson (on behalf of the Montana Department of Health and Human Services), John Elizandro (on behalf of the Montana Department of Labor and Industry), and Derek Oestreicher (on behalf of the Montana Department of Justice). See Fed.R.Civ.P. 32. The admitted trial exhibits are found in Doc. 159.

Background

Defendants' primary contention is that in exercising the state's police powers, § 49-2-312 protects Montanans from discrimination based on inappropriate inquiry about vaccination status and protects individuals from the involuntary disclosure of their private health care information. Section 49-2312(1) prohibits persons and entities-with limited exceptions-from withholding goods services, or employment “based on the person's vaccination status or whether the person has an immunity passport.” “Vaccination status” refers to “an indication of whether a person has received one or more doses of a vaccine,” while “immunity passport” refers to a form or record “indicating that a person is immune to a disease, either through vaccination or infection and recovery.” § 49-2-312(5). School vaccination requirements remain, § 49-2-312(2), and “health care facilities,” as defined under § 50-5-101, are permitted to “ask [] an employee to volunteer the employee's vaccination or immunization status” and may “implement [] reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune,” § 49-2-312(3). The term “health care facilities” as used in § 49-2-312(3) “does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under [the Professions and Occupations Title], including licensed addiction counselors.” § 50-5-101(26)(b). Based on the trial evidence, that is where the rub lies: health care settings excluded from the exceptions in § 49-2312(2) who are at risk if typical safety precautions are not implemented.

The statutes themselves neither prohibit nor mandate any specific vaccination, with the exception of school children who may still...